Sydney Water Act 1994 (NSW)

Sydney Water Act 1994 No 88 An Act to establish a State owned corporation in relation to the supply of water, the provision of sewerage and stormwater drainage systems and the disposal of waste water in Sydney and other regions and certain other matters; to provide for the transfer of assets, rights and liabilities of the Water Board; to amend the State Owned Corporations Act 1989; to amend the Government Pricing Tribunal Act 1992 in relation to the fixing of maximum prices for government monopoly services; to amend certain other Acts; to repeal the Water Board Act 1987; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Sydney Water Act 1994. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) Words and expressions used in this Act have the same meanings as they have in the State Owned Corporations Act 1989. (2) In this Act— area of operations means the area of operations referred to in Part 4. availability charge means a charge of a kind referred to in section 64. business undertaking means all assets, rights and liabilities of Sydney Water Corporation Limited, but does not include any excluded undertaking. contract charge means any fee or charge payable under a customer contract. controlled area means an area of land declared by an order in force under section 88 to be a controlled area. Corporation means Sydney Water Corporation. customer contract means a contract of a kind referred to in section 55 (1). excluded undertaking means any assets, rights or liabilities of Sydney Water Corporation Limited that the Minister has directed to be excluded under section 8. exercise of a function includes the performance of a duty. function includes a power, authority or duty. instrument means an instrument (other than this Act) that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order or process of a court. lease includes a licence or permit. meter includes any measuring device. Ministerial Holding Corporation means the Ministerial Holding Corporation constituted by section 37B of the State Owned Corporations Act 1989. operating licence means an operating licence granted under section 12 or any renewal of it. operational audit means an operational audit of the Corporation that is required to be prepared under the operating licence. owner, in relation to land, includes every person who jointly or severally at law or in equity— (a) is entitled to the land for an estate of freehold in possession, or (b) is a person to whom the Crown has contracted to sell the land under the Crown Land Management Act 2016 or any other Act relating to alienation of land of the Crown, or (c) is entitled to receive, or receives, or if the land were let to a tenant would receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise, and, in relation to land of the Crown, means the Crown, but does not include a person who, or a class of persons that, is declared by the regulations not to be within this definition, either generally or in a particular case or class of cases. public reserve has the same meaning as it has in the Local Government Act 1993. public road means— (a) any road that is opened or dedicated as a public road, whether under the Roads Act 1993 or any other Act or law, or (b) any road that is declared to be a public road for the purposes of the Roads Act 1993. statutory body means a corporation that is incorporated by or under an Act, but does not include— (a) a company within the meaning of the Corporations Act 2001 of the Commonwealth, or (a1) a co-operative within the meaning of the Co-operatives National Law (NSW), or (b) a society within the meaning of the Friendly Societies Act 1989, or (b1) a society registered under the Financial Institutions (NSW) Code or the Co-operative Housing and Starr-Bowkett Societies Act 1998, or (c) an association incorporated under the Associations Incorporation Act 2009, or (d) a body prescribed by the regulations as not being a statutory body for the purposes of this definition. storages means dam walls, pumps and other works used for or with respect to the extraction, and storage, of— (a) water in rivers and lakes, and (b) water occurring naturally on the surface of the ground, and (c) sub-surface waters. stormwater drainage area charge means a charge of a kind referred to in section 65. stormwater drainage channel means any artificial channel by which surface water is carried off. Tribunal means the Independent Pricing and Regulatory Tribunal established under the Independent Pricing and Regulatory Tribunal Act 1992. Water Administration Ministerial Corporation means the Water Administration Ministerial Corporation constituted by the Water Management Act 2000. Water Board means the Water Board constituted under the Water Board Act 1987. works means— (a) storages, water mains, sewer mains, water and sewage treatment plants, waste water treatment plants, or stormwater drainage channels, or (b) monitoring devices in, under, over or near— (i) any works referred to in paragraph (a), or (ii) any rivers or oceans, or (c) any works ancillary or antecedent to any works referred to in paragraph (a) or (b). 3A (Repealed) Part 2 Sydney Water Corporation 4 Establishment of Corporation as a statutory SOC (1) There is constituted by this Act a corporation with the corporate name of the Sydney Water Corporation. (2) The State Owned Corporations Act 1989 is amended by inserting in Schedule 5, in alphabetical order, the words "Sydney Water Corporation". 5 Functions of Corporation (1) The Corporation has the functions conferred or imposed on it by or under this or any other Act. (2) The principal functions of the Corporation are those that are referred to in section 12 and that are the subject of one or more operating licences. (3) Subject to the terms of any operating licence, the Corporation may— (a) provide facilities or services that are necessary, ancillary or incidental to its principal functions, and (b) conduct any business or activity (whether or not related to its principal functions) that it considers will further its objectives. (4) This section does not limit the functions of the Corporation apart from this section, but is subject to the provisions of this Act, the State Owned Corporations Act 1989 and any other Act or law. 5A Board of Corporation (1) The board of the Corporation is to consist of the following— (a) a chairperson, appointed by the voting shareholders of the Corporation, (b) 9 directors appointed by the voting shareholders, who are to have appropriate expertise, to the intent that the board includes directors with separate expertise in at least the following areas— (i) business management, (ii) protection of the environment, (iii) public health. (2) The Minister is to advertise publicly for nominations for selection for the board. (3) Subsection (1) has effect despite the provisions of section 20J (2), (3) and (4) of, and clauses 2 (1) and 4 of Schedule 8 to, the State Owned Corporations Act 1989. 6 Role of certain Ministers (1) The Premier may not nominate— (a) the portfolio Minister of the Corporation, or (b) a Minister administering the Environmental Planning and Assessment Act 1979, the Water Management Act 2000, the Protection of the Environment Administration Act 1991 or the Public Health Act 2010, as a voting shareholder of the Corporation. (2) However, the portfolio Minister of the Corporation is authorised to attend meetings of the shareholders of the Corporation. (3) If a Minister nominated by the Premier as a voting shareholder of the Corporation becomes the portfolio Minister of the Corporation or the Minister who is responsible for the administration of any of the Acts referred to in subsection (1) (b), the Premier must, as soon as practicable, revoke the nomination of the Minister as a voting shareholder and nominate another Minister in the Minister's place. (4) The portfolio Minister is to answer all questions directed to the Minister in Parliament in relation to the administration of this Act. Part 3 Transfer of assets, rights and liabilities 7 Direction to transfer business undertaking (1) The Minister may, by order in writing, direct that the business undertaking of Sydney Water Corporation Limited be transferred to the Corporation, in exchange for the issue of shares or on any other basis. (2) The transfer of assets, rights and liabilities under this section is to take place at a value or values specified in the order. (3) On the date specified in the order, the following provisions have effect (subject to the order)— (a) the assets of Sydney Water Corporation Limited comprised in its business undertaking vest in the Corporation by virtue of this section and without the need for any conveyance, transfer, assignment or assurance, (b) the rights and liabilities of Sydney Water Corporation Limited comprised in its business undertaking become by virtue of this section the rights and liabilities of the Corporation, (c) all proceedings relating to the business undertaking commenced before the transfer by or against Sydney Water Corporation Limited or a predecessor of Sydney Water Corporation Limited and pending immediately before the transfer are taken to be proceedings pending by or against the Corporation, (d) any act, matter or thing done or omitted to be done in relation to the business undertaking before the transfer by, to or in respect of Sydney Water Corporation Limited is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the Corporation, (e) a reference in any Act, in any instrument made under any Act or in any document of any kind to Sydney Water Corporation Limited or a predecessor of Sydney Water Corporation Limited is, subject to regulations under clause 1 (1) of Schedule 9, to be read as, or as including, a reference to the Corporation. (4) The operation of this section is not to be regarded— (a) as a breach of contract or confidence or otherwise as a civil wrong, or (b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or (c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability. (5) The operation of this section is not to be regarded as an event of default under any contract or other instrument. (6) No attornment to the Corporation by a lessee from Sydney Water Corporation Limited is required. (7) Assets, rights or liabilities may not be transferred under this section to the Corporation unless the Corporation is a State owned corporation. 8 Excluded undertakings (1) The Minister may direct, by order in writing, that such assets, rights or liabilities of Sydney Water Corporation Limited as are specified or referred to in the order be excluded from Sydney Water Corporation Limited's business undertaking. (2) On the date specified in the order, the excluded undertaking concerned is transferred to the Ministerial Holding Corporation or such other person on behalf of the Crown as is so specified. (3) The functions of the Ministerial Holding Corporation include the following— (a) to hold and dispose of assets, rights and liabilities transferred to it under this Act, (b) to carry on any activities or business that relate to the assets, rights and liabilities transferred to it or that are incidental or ancillary to the assets, rights and liabilities transferred to it, including demanding, collecting and receiving charges, levies, rates and fees. (4) Section 7 applies to the transfer of the excluded undertaking under this section in the same way as it applies to the transfer of Sydney Water Corporation Limited's business undertaking to the Corporation. (5) Different parts of any excluded undertaking may be transferred under subsection (2) to different persons. (6) The Ministerial Holding Corporation or other person is authorised to dispose of any excluded undertaking transferred under subsection (2) or to retain it and conduct any business to which it relates. 9 Transfer of other assets, rights or liabilities (1) The Minister may direct, by order in writing, and on such terms and conditions as are set out or referred to in the order, that such other assets, rights or liabilities used by or attaching to Sydney Water Corporation Limited for the supply of water, the provision of sewerage and stormwater drainage systems, the disposal of waste water and associated purposes, and belonging to the State or an authority of the State, as are specified in the order, be transferred to the Corporation or to a subsidiary of the Corporation. (2) Section 7 applies to that transfer in the same way as it applies to the transfer of Sydney Water Corporation Limited's business undertaking to the Corporation. Part 4 Area of operations 10 Area of operations (1) The Corporation has, subject to this section, the same area of operations that Sydney Water Corporation Limited had immediately before it ceased to be a company State owned corporation. Each operating licence is to contain a schedule that details the area of operations or the part of the area of operations to which the operating licence applies. (2) The Governor may, by order published on the NSW legislation website, vary the area of operations and may, by that order, specify which systems and services the Corporation may provide in the whole or a part or parts of the area of operations as so varied. (3) An order under subsection (2) may expand or reduce the area of operations. However, an order must not reduce the area of operations unless the Minister is satisfied that, after the order takes effect, similar services to those provided by the Corporation in the area to be excised from the area of operations are able to, and will, be provided by any one or more of the following— (a) a council of an area, or (b) Hunter Water Corporation, (c) a public authority within the meaning of the Water Management Act 2000, or (d) a water supply authority within the meaning of the Water Management Act 2000. (4) Despite subsections (2) and (3), the area of operations must not be— (a) reduced, or (b) expanded to include the whole or part of the area within which any of the bodies referred to in subsection (3) (a)–(d) provides services that are the same services the Corporation is authorised to provide under the operating licence, unless consultations, regarding the proposed reduction or expansion and the implications of the proposed reduction or expansion, have taken place between the Corporation and the council, Hunter Water Corporation, public authority or Water Supply Authority before the order reducing or expanding the area of operations is made. (5) It does not matter if a reduction or expansion of the area of operations results in parts of the area of operations covered by an operating licence not being contiguous. (6) An order to vary the area of operations does not take effect until written notice of the order, accompanied by a copy of the order, is laid before each House of Parliament and either— (a) 15 sitting days of each House of Parliament has passed after the order was tabled and notice of a motion to disallow the order has not been given, or (b) if notice of a motion to disallow the order has been given, the motion has lapsed or has been withdrawn or defeated. 11 Facilitating provisions of orders (1) An order of the Governor for the purposes of this Part may include such provisions as are necessary or convenient for giving effect to the order, including provisions for or with respect to— (a) the transfer or apportionment of assets, rights and liabilities, (b) the transfer of staff, (c) the delivery or retention of records, (d) the termination, cessation, dissolution or abolition of anything existing before the order takes effect, (e) the preservation or continuance of anything existing before the order takes effect, (f) the imposition of fees and charges, (g) the recovery of fees and charges. (2) Such an order may— (a) apply generally or be limited in its application by reference to specified exceptions or factors, or (b) apply differently according to different factors of a specified kind, or (c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body, or may do any combination of those things. Part 5 Operating licences 12 Grant of operating licences (1) The Governor may grant one or more operating licences to enable the Corporation in accordance with this Act, in the area of operations, to provide, construct, operate, manage or maintain systems or services for— (a) storing or supplying water, or (b) providing sewerage services, or (c) providing stormwater drainage systems, or (d) disposing of waste water. (2) Operating licences may be granted to enable the Corporation to provide all or any of the systems or services in the same or different parts of the area of operations. (3) Except to the extent to which this Act expressly provides, nothing in an operating licence limits the requirements imposed by or under any other Act or law with respect to the provision, construction, operation, management or maintenance of any system or service referred to in subsection (1). (4)–(6) (Repealed) 13 (Repealed) 14 Terms and conditions of operating licences (1) An operating licence is subject to the terms and conditions determined by the Governor, but (so far only as is relevant to the ambit of the operating licence) must include terms or conditions under which the Corporation is required— (a) to provide, construct, operate, manage and maintain efficient, co-ordinated and commercially viable systems and services for supplying water, providing sewerage services and disposing of waste water, and (b) to provide, operate, manage and maintain a stormwater drainage system within the capacity of the stormwater drainage system included in the business undertaking transferred under Part 3 from the Water Board to the Corporation as at the date of the transfer of the business undertaking, and (c) to ensure that the systems and services meet the quality and performance standards specified in the operating licence in relation to water quality, service interruptions, pricing and other matters determined by the Governor and set out in the operating licence, and (d) to compile indicators of the direct impact on the environment of the Corporation's activities— (i) to enable preparation of an annual report on the Corporation's performance, and (ii) to provide information for a year to year comparison in relation to the Corporation's performance in this area. (2) The operating licence granted to the Corporation is to provide for the preparation of an operational audit in accordance with Division 2 of Part 6. (3) The operating licence granted to the Corporation is to provide, or (if there is more than one such licence) the operating licences granted to the Corporation are to provide collectively, for the provision of the systems and services referred to in subsection (1) (a) and (b) in the area of operations or the relevant part of the area of operations, except to the extent that— (a) the Governor has, by order made under section 10 (2), restricted the systems and services that the Corporation may provide in the area of operations or the relevant part of the area of operations, or (b) this Act otherwise provides. (4) Despite this section, the provision, operation, management or maintenance of the stormwater drainage system described in subsection (1) (b) need not be required as a term or condition of an operating licence if the Minister is satisfied that satisfactory arrangements have been made for the service to be provided by another appropriate body. (5) If it is proposed to transfer responsibility for the provision, operation, management or maintenance of the stormwater drainage system to a council or councils (within the meaning of the Local Government Act 1993), in order to be satisfied that satisfactory arrangements have been made for the purposes of subsection (4), the Minister— (a) is to cause written notice of the proposed transfer and details of the proposed new arrangements to be served on the council or councils concerned and is to invite them, by that notice, to comment on the proposal within 40 days after service of the notice, and (b) is to be satisfied that at least the same standard of services will be provided under the new arrangements as had been provided by the Corporation. (6) If new arrangements are entered into in pursuance of subsections (4) and (5), the Corporation must, within 14 days after the arrangements are entered into, give notice of the terms of the arrangements by notification published in the Gazette. 15 Customer Councils (1) An operating licence must also include terms or conditions that require the Corporation to establish and regularly consult with one or more Customer Councils, each consisting of persons appointed from time to time by the Corporation. (2) The Corporation is to consult with the Customer Councils from time to time, as the Corporation thinks fit, in relation to the provision of the systems and services referred to in this Part. 16 Amendment of operating licences (1) An operating licence may only be amended in the manner specified in the operating licence. (2) However, a proposed amendment to an operating licence will not take effect until written notice of the proposed amendment, accompanied by a copy of the proposed amendment, is laid before each House of Parliament and either— (a) 15 sitting days of each House of Parliament has passed after the proposed amendment was tabled and notice of a motion to disallow the proposed amendment has not been given, or (b) if notice of a motion to disallow the proposed amendment has been given, the motion has lapsed or has been withdrawn or defeated. (3) This section applies to the substitution of an operating licence in the same way as it applies to the amendment of an operating licence. (4) The other provisions of this section do not apply to the amendment or substitution of an operating licence under section 3A. 17 Term of operating licences (1) The initial term of an operating licence is to be for a maximum of 5 years, as determined by the Governor. (2) After the initial term, the Governor may renew an operating licence for a maximum of 5 years at a time. (3) An operating licence may be renewed even if its term has expired. 18 Area covered by operating licences An operating licence applies to the whole or a part of the area of operations, as specified in the operating licence. 19 Contravention of operating licences (1) If, in the opinion of the Minister, the Corporation contravenes an operating licence, the Minister may cause a notice to be served on the Corporation requiring it to rectify the contravention within a specified period. (2) If, in the opinion of the Minister, the Corporation contravenes an operating licence, and whether or not a notice has been served under subsection (1) or the period specified in the notice has ended, the Governor may direct that either of the following is to apply— (a) a letter of reprimand by the Minister is to be served on the Corporation, (b) the Corporation is to pay a monetary penalty (not exceeding $1 million) in an amount to be determined by the Governor. (3) The fact that the Governor has directed that action be taken under this section does not prevent the Governor directing that the same or other action under the section be taken if the contravention continues or a fresh contravention occurs. (4) An operating licence may make provision for advice to be furnished to the Minister in connection with the exercise of the Minister's functions under this section. (5) A penalty imposed under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the Crown. 19A Enforcement of operating licences: action by Tribunal (1) The Tribunal may impose a monetary penalty on the Corporation. (2) The Tribunal may, instead of imposing a monetary penalty, require the Corporation to take such action as the Tribunal considers appropriate in the circumstances, including (for example) requiring the sending of information to customers or the publication of notices in newspapers. (3) The Tribunal may not require action to be taken under subsection (2) by the Corporation if the cost of that action would exceed the monetary penalty that the Tribunal could impose under this section on the Corporation. (4) If the Tribunal requires information to be sent to a customer under subsection (2), the Corporation may satisfy that requirement by sending the information to the customer with the next account or bill to be sent to the customer by the Corporation or, if the Corporation is sending other information to that customer before the next account or bill, with that other information. (5) Action may be taken under this section only if the Corporation has knowingly contravened an operating licence. (6) The monetary penalty that the Tribunal may impose under this section must not exceed $10,000 for the first day on which the contravention occurs and a further $1,000 for each subsequent day (not exceeding 30 days) on which the contravention continues. (7) The Tribunal must not take action under this section unless— (a) the Tribunal has considered whether the contravention has been or is likely to be the subject of any other penalty or action or any claim for compensation, and is satisfied that it is nevertheless appropriate to take action under this section, and (b) the Tribunal has considered the action that the Corporation has taken or is likely to take in respect of the contravention and the cost to the Corporation in taking that action, and is satisfied that it is nevertheless appropriate to take action under this section. (8) The Tribunal is required to consider the seriousness of the contravention concerned in determining to impose a monetary penalty under this section. (9) The Tribunal must not take action under this section unless— (a) notice of the proposed action has been given to the Corporation, and (b) the Corporation has been given a reasonable opportunity to make submissions with respect to the proposed action, and (c) the Tribunal has given due consideration to any such submissions. (10) The Tribunal must not take action under this section in respect of a contravention if any action has already been taken under section 19 in respect of the contravention. (11) Nothing in this section affects any powers under section 19 in respect of a contravention, whether or not the Tribunal has already taken action under this section in respect of the contravention. (12) A penalty imposed under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the Crown. 19B Administrative reviews of certain decisions of Tribunal concerning operating licences (1) The Corporation, if aggrieved by a decision of the Tribunal to take action under section 19A in relation to the Corporation, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to such a decision of the Tribunal. 20 Cancellation of operating licences (1) An operating licence may be cancelled by the Governor, but only if— (a) the Corporation ceases, otherwise than as authorised by the operating licence or as permitted in accordance with an order made under section 10 (2), to do the things referred to in section 14 (1) or any of them in the area of operations for any reason, or (b) the Corporation— (i) is, in the opinion of the Minister, in material default in compliance with the operating licence, viewed in terms of the operation of the operating licence as a whole, and (ii) has not, within the time specified by the Minister in a notice to the Corporation, either rectified the default or shown cause, to the satisfaction of the Minister, why the operating licence should not be cancelled, or (c) the Corporation is an externally administered corporation within the meaning of the Corporations Act 2001 of the Commonwealth, or (d) the Corporation has been convicted on more than 3 occasions within a period of 12 months of criminal offences that are punishable by a fine of at least $10,000 or, if the Corporation were a natural person, imprisonment for 12 months or more. (2) A notice under section 19 can be regarded also as a notice for the purposes of subsection (1) (b). (3) If an operating licence is cancelled under this section, the Governor may, by order published in the Gazette, vest in the Crown or in another person specified in the order, from the date specified in the order, the assets and rights of the Corporation that are specified in the order and that, in the opinion of the Minister, are necessary to enable the Crown or other person to do immediately the things referred to in section 14 (1), or any of them, for the benefit of existing recipients of the Corporation's systems and services. (4) An order under this section may provide for— (a) the Crown or other person specified in the order to assume those liabilities of the Corporation that the Governor considers appropriate and specifies in the order, or (b) the Crown to pay the whole or any part of the liabilities of the Corporation. Part 6 Provisions relating to the Corporation Division 1 Objectives of Corporation 21 Objectives of Corporation (1) The principal objectives of the Corporation are— (a) to be a successful business and, to this end— (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Corporation, and (iii) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, and (b) to protect the environment by conducting its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991, and (c) to protect public health by supplying safe drinking water to its custom