Water and Sewerage Industry Act 2008 (Tas)

Water and Sewerage Industry Act 2008 An Act to provide for the establishment of an economic regulatory framework for the water and sewerage industry, including the establishment of a licensing regime and providing for the regulation of prices, customer service standards and performance monitoring of that industry and for related matters [Royal Assent 13 June 2008] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Water and Sewerage Industry Act 2008 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – Agency has the same meaning as in the State Service Act 2000 ; annual performance reporting requirements means the annual reporting requirements referred to in section 69 ; Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal; area of operations, in relation to a regulated entity, means the area within which the regulated entity is authorised to exercise the powers conferred by a licence; Australian Standard means a standard issued by the Standards Association of Australia, being the body known as Standards Australia; authorised officer means an authorised officer appointed under section 91 ; business day means a day that is not – (a) a Saturday or Sunday; or (b) a statutory holiday within the meaning of the Statutory Holidays Act 2000 ; code means a code issued by the Regulator under section 20 ; combined system means a system that is, or is to be, one for both sewage and stormwater; connection point means – (a) the point at which the customer's pipes connect with the water infrastructure or sewerage infrastructure; or (b) such other point as may be prescribed in the regulations; Corporation has the same meaning as in the Water and Sewerage Corporation Act 2012 ; customer means a person who is – (a) an owner and occupier of a property that is connected to a regulated entity's water infrastructure or sewerage infrastructure; or (b) an owner (but not an occupier) of a property that is connected to a regulated entity's water infrastructure or sewerage infrastructure; or (c) an occupier of a property that is connected to a regulated entity's water infrastructure or sewerage infrastructure and is liable for service charges; or (d) an owner or occupier of a property that is not connected to a regulated entity's water infrastructure or sewerage infrastructure but to which a regulated service is available from a regulated entity and the regulated entity imposes a service charge; customer complaints process means a process established pursuant to section 75 to deal with complaints by customers of a regulated entity relating to regulated services provided by that regulated entity; customer contract means a contract between a regulated entity and a customer for the provision of regulated services to the customer, which includes standard terms and conditions of service; customer service code means a code issued under section 57 ; deemed licensee means a person deemed to be licensed under section 32 ; disqualified individual means – (a) an individual who, pursuant to the Corporations Act 2001 of the Commonwealth, is disqualified from managing a corporation; or (b) an individual who, pursuant to a declaration under section 41 , is a disqualified person for the purposes of this Act; disqualified person means a disqualified corporation or a disqualified individual; environmental harm has the same meaning as in the Environmental Management and Pollution Control Act 1994 ; fire hydrant means an assembly installed on a water pipe which provides a valved outlet to permit a controlled supply of water to be taken from a pipeline for fire fighting purposes; first regulatory period means the period fixed under section 65(12)(a) ; infrastructure, in relation to a regulated entity, means infrastructure owned by, or under the management and control of, the regulated entity; interim licence means an interim licence granted under section 89 ; land includes – (a) buildings and other structures erected on the land; and (b) land covered with water; and (c) water covering land; licence means a licence granted under section 35(1) or a temporary licence granted under section 43(5) ; meter means a device used for the measurement of the flow of water or sewage – (a) through water infrastructure or sewerage infrastructure; or (b) such other infrastructure or system as may be prescribed in the regulations; meter reader means a person authorised to be a meter reader under section 56ZAA ; occupier of land means a person who has, or is entitled to, possession or control of the land and includes – (a) a person who occupies the land or part of the land jointly or in common with any other person; and (b) a person who occupies part of the land; officer has the same meaning as in the Corporations Act 2001 of the Commonwealth; Ombudsman means the Ombudsman appointed under the Ombudsman Act 1978 ; operational work, in relation to water infrastructure and sewerage infrastructure, means – (a) locating, inspecting, testing, operating, maintaining, repairing, altering, adding to, installing, upgrading, replacing or removing the water infrastructure or sewerage infrastructure; or (b) excavating land in order to carry out work of a kind referred to in paragraph (a) ; person includes an Agency, a statutory authority and an emanation of the Crown; planning authority means a planning authority within the meaning of the Land Use Planning and Approvals Act 1993 ; price means the price or price range however designated – (a) for the provision of a regulated service; or (b) for developer charges for water infrastructure and sewerage infrastructure – and includes a charge or tariff or particular factor, policy or a formula used in fixing the price; price and service plan means a price and service plan approved under section 65 ; price determination means a price determination by the Regulator under section 66 ; protective work, in relation to water infrastructure and sewerage infrastructure, means – (a) work that is necessary or expedient for the protection of infrastructure or public safety; or (b) excavating land in order to carry out work of a kind referred to in paragraph (a) ; public land means – (a) land owned by the Crown; or (b) land owned by an instrumentality or agent of the Crown; or (c) land owned by a council that is public land under section 177A of the Local Government Act 1993 ; record includes – (a) a documentary record; and (b) a record made by an electronic, electromagnetic, photographic or optical process; regulated activity means an activity for which a person is required to hold a licence or interim licence granted under this Act and includes the provision of a regulated service; regulated entity means – (a) a person holding a licence or an interim licence granted under this Act; or (b) a person deemed to hold a licence under section 32 ; or (c) a person who has surrendered his or her licence under this Act; or (d) a person whose licence has been cancelled or suspended; or (e) a person who has obligations under section 33 ; or (f) a person who, but for an exemption under section 90 , would be required to hold a licence under section 30 ; regulated service means the provision of a water service or a sewerage service by a regulated entity; regulations means regulations made and in force under this Act; Regulator means the Regulator referred to in section 11 ; regulatory period means the regulatory period fixed under section 65(12) or declared under section 65(13) ; related person, in relation to – (a) an individual, means some other individual who is the first-mentioned individual's – (i) employer, employee or partner; or (ii) a partner, within the meaning of the Relationships Act 2003 , parent, step-parent, grandparent, child, step-child, grandchild, sibling, step-sibling, nephew or niece; or (b) a body corporate, means a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth; reserve supplier means a person who is declared to be a reserve supplier under section 49 ; serviced land means land referred to in section 56U(1)(b) ; sewage includes trade waste; sewerage infrastructure means any infrastructure that is, or is to be, used for – (a) the collection or storage of sewage and includes the connection point; or (b) the conveyance or reticulation of sewage; or (c) the treatment of sewage, including any outfall pipe or other work that stores or conveys water leaving the infrastructure used for the treatment of sewage; or (d) any other infrastructure used in connection with sewage and declared to be sewerage infrastructure by the Minister by order – and includes a combined system but does not include – (e) any pipe, fitting or apparatus that is situated upstream of a customer's connection point to a sewer main; or (f) infrastructure situated entirely within the one land holding and not connected to any other infrastructure situated within another land holding; or (g) any other infrastructure used in connection with sewage and declared not to be sewerage infrastructure by the Minister by order; sewerage service means – (a) a service that is provided in connection with the collection, storage, treatment, conveyance or reticulation of sewage and includes a retail service for the collection of sewage; or (b) any other service declared to be a sewerage service by the Minister by order; sewerage system means the pipes, fittings, meters and other connected accessories required for or incidental to the discharge or conveyance of sewage to a regulated entity's sewerage infrastructure, but does not include the regulated entity's sewerage infrastructure; statutory authority means a body or authority, whether incorporated or not, that is established or constituted under a written law or under the royal prerogative, being a body or authority which, or of which, the governing authority wholly or partly comprises a person or persons appointed by the Governor, a Minister or another statutory authority, but does not include an Agency; step-in-operator – see section 56(2) ; step-in-order – see section 55(1) ; trade waste means liquid waste generated other than in the course of domestic activities and includes liquid waste generated by any trade, industrial, commercial, educational, medical, dental, veterinary, agricultural, horticultural, scientific research or experimental activities; water includes recycled water and re-use water, but does not include sewage; water and sewerage officer means an officer appointed under section 56A ; water infrastructure means any infrastructure that is, or is to be, used for – (a) the collection or storage of water, including from a dam or reservoir or a water production plant; or (b) the treatment of water; or (c) the conveyance or reticulation of water and includes the connection point; or (d) any other infrastructure used in connection with water and declared to be water infrastructure by the Minister by order – but does not include – (e) any pipe, fitting or apparatus that is situated downstream of a customer's connection point to a water main; or (f) any pipe, fitting or apparatus that is situated upstream of a customer's connection point to a stormwater drain; or (g) infrastructure situated entirely within the one landholding and not connected to any other infrastructure situated within another landholding; or (h) any other infrastructure used in connection with water that is declared not to be water infrastructure by the Minister by order; water service means a service that is provided in connection with the collection, storage, treatment, conveyance, reticulation or supply of water and includes a retail service for the supply of water, but does not include – (a) supply or use of water for irrigation purposes; or (b) supply or use of water in connection with the generation of electricity; water system means the pipes, fittings, meters and other connected accessories required for or incidental to the supply and measurement of water provided by a regulated entity, but does not include a regulated entity's water infrastructure. 3A. Application in relation to strata title units of certain expressions in this Act (1) In this section – common property has the same meaning as it has in the Strata Titles Act 1998 ; lot has the same meaning as it has in the Strata Titles Act 1998 . (2) For the purposes of the definitions in section 3 of "customer" and "connection point", a property consisting of a lot that, but for the interposing of pipes situated in whole or in part on common property, would be connected to a regulated entity's water infrastructure is to be taken to be a property that is connected to the regulated entity's water infrastructure or sewerage infrastructure. 4. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Objective of Act 5. Objective of Act The objective of this Act is to protect the long-term interests of customers and to provide for the safe, environmentally responsible, efficient and sustainable provision of reliable and secure water services and sewerage services to the Tasmanian community. PART 3 - Administration 6. Functions of Minister The Minister has the following functions under this Act: (a) to develop and coordinate policies relating to the regulation of the water and sewerage industry; (b) such other functions as are imposed on the Minister under this Act. 7. Powers of Minister (1) The Minister has power to do all things necessary or convenient to be done in connection with, incidental to or related to the performance of the Minister's functions under this Act. (2) Without limiting subsection (1) , the Minister, by notice in writing given to the Regulator, may require the Regulator to conduct an inquiry into any matter relating or incidental to the regulation of the water and sewerage industry that the Minister considers necessary or desirable. 8. Minister or Regulator may establish committees (1) The Minister or the Regulator may establish committees to provide information and advice to the Minister or the Regulator on matters related to the administration of this Act. (2) The members of a committee established under this section by the Minister are appointed and hold office on such terms and conditions as the Minister determines. (3) The members of a committee established under this section by the Regulator are appointed and hold office on such terms and conditions as the Regulator determines. 9. Delegation of Minister's functions and powers The Minister may delegate any of his or her functions or powers under this Act other than this power of delegation. 10. Exemption from Act (1) Subject to subsections (2) and (3) , the Minister may, by order, exempt a person, an activity or a class of activities from any provision of this Act subject to any conditions that the Minister determines. (2) The Minister may not make an order granting an exemption if it would be inconsistent with the objective of this Act to do so. (3) The Minister must not make an order granting an exemption unless the Minister has consulted with – (a) the Minister administering the Environmental Management and Pollution Control Act 1994 and that Minister has advised that the exemption would not be inconsistent with that Act; and (b) the Minister administering the Public Health Act 1997 and that Minister has advised that the exemption would not be inconsistent with that Act or any guidelines in force under that Act; and (c) the Minister administering the Water Management Act 1999 and that Minister has advised that the exemption would not be inconsistent with that Act. (4) An order remains in force until – (a) it is revoked; or (b) the date specified in the order as the date on which the order ceases to be in force – whichever first occurs. (5) The Minister may make an order renewing an exemption granted under this section. PART 4 - Regulation of Water and Sewerage Industry Division 1 - Regulator Subdivision 1 - Functions and powers 11. The Regulator (1) The office of the Regulator is established. (2) The Regulator, within the meaning of the Economic Regulator Act 2009 , is the Regulator. 12. Functions of Regulator The Regulator's functions are – (a) to administer the licensing system established under Division 2 ; and (b) to advise the Minister that a licence has been granted under Division 2 and to advise the Minister of any conditions that apply to that licence; and (c) to advise the Minister of any variation or amendments to the conditions of a licence; and (d) to monitor and report to the Minister on the compliance of a regulated entity with its licence conditions and obligations, including compliance with the customer service code; and (e) to establish and administer the customer service code; and (f) to regulate prices, terms and conditions for regulated services; and (g) to make price determinations and determinations generally; and (h) to monitor the performance of the water and sewerage industry and report on the performance of regulated entities; and (i) to provide advice to the Minister on matters on which the Minister requires advice in connection with the regulation of the water and sewerage industry; and (j) to undertake inquiries, including such inquiries as may be required by the Minister, in relation to the regulation of the water and sewerage industry; and (k) to publish guidelines issued by the Regulator under this Act on the Regulator's internet website; and (l) to perform such other functions as may be imposed on the Regulator under this Act. 13. Powers of Regulator (1) The Regulator has power to do all things necessary or convenient to be done in connection with, incidental to or related to the performance of the Regulator's functions under this Act. (2) Without limiting subsection (1) , the Regulator may – (a) develop and issue guidelines for the regulation of the water and sewerage industry – (i) for price regulation; and (ii) for pricing principles; and (iii) for price and service plans; and (iv) for licence administration; and (v) for annual performance reporting; and (vi) in relation to compliance by a regulated entity with the provisions of this Act and the conditions of the licence granted to the regulated entity; and (b) enforce the compliance of regulated entities with their licence conditions and obligations, including the customer service code; and (c) develop and issue codes; and (d) enter into contracts. 14. Delegation of Regulator's functions and powers The Regulator may delegate any of his or her functions or powers under this Act, other than this power of delegation. 15. Matters to which Regulator is to have regard In performing functions and exercising powers under this Act, the Regulator must seek to achieve the objective of this Act and must have regard to the following matters: (a) relevant health, public safety and environmental obligations; (b) the promotion of efficient long-term investment in water infrastructure and sewerage infrastructure, so as to achieve the lowest sustainable costs of the provision of water services and sewerage services; (c) the promotion of efficient pricing for regulated services; (d) the impact of the rate of change of prices for customers; (e) the maintenance of appropriate service standards for the provision of water services and sewerage services; (f) the avoidance of regulatory duplication, so far as is practicable, through appropriate consultation with, and data collection from, other relevant persons; (g) any matters relating to the water and sewerage industry prescribed in the regulations; (h) any other matters that the Regulator considers relevant. 16. Independence of Regulator In performing functions and exercising powers under this Act, the Regulator is not subject to the direction of the Minister or any other person unless expressly provided for under this Act. 17. Regulator's power to require information (1) The Regulator may, by written notice given to a person, require that person to give the Regulator, within a time stated in the notice, information or documents in the person's possession that the Regulator reasonably requires for the administration of this Act. (2) A person required to give information or documents under this section must provide the information or documents within the time stated in the notice given under subsection (1) . Penalty: Fine not exceeding 100 penalty units. (3) A person may not be compelled to give information under this section if the information might tend to incriminate the person of an offence. 18. Power to direct regulated entities to keep records (1) The Regulator may, by notice in writing given to a regulated entity, require the regulated entity to maintain and keep specified records, including any documents specified in the notice. (2) A person must not, without reasonable excuse, refuse or fail to comply with a notice given under subsection (1) . Penalty: Fine not exceeding 100 penalty units. 19. Special reports to Minister The Regulator must report to the Minister on matters on which the Minister requires a report as and when required by the Minister. Subdivision 2 - Codes 20. General provisions relating to codes (1) Subject to subsection (1A) , the Regulator may issue codes for any matter relating or incidental to any regulated activity. (1A) The Regulator must issue a code for any matter prescribed in the regulations relating to or incidental to meters. (2) A person subject to a code must comply with that code. Penalty: Fine not exceeding 100 penalty units. (3) The Regulator may not issue a code unless the Regulator has consulted with – (a) the Minister administering the Environmental Management and Pollution Control Act 1994 and that Minister has advised that the code would not be inconsistent with that Act; and (b) the Minister administering the Public Health Act 1997 and that Minister has advised that the code would not be inconsistent with that Act or any guidelines in force under that Act; and (c) the Minister administering the Water Management Act 1999 and that Minister has advised that the code would not be inconsistent with that Act. (4) If there is an inconsistency between a code issued under subsection (1) and this Act or regulations made under this Act, this Act or the regulations prevail to the extent of the inconsistency. (5) A code may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the code. (6) A code may authorise any matter to be from time to time determined, approved or applied by the Regulator. (7) The Regulator is to notify the Minister whenever the Regulator issues a code and provide the Minister with a copy of the code. 21. Publication and availability of codes (1) As soon as practicable after the Regulator issues a code, the Regulator is to – (a) cause notice of the issuing of the code to be published in the Gazette; and (b) cause the code to be published on the Regulator's internet website. (2) The Regulator must keep a code available for inspection by any person, free of charge, at the office of the Regulator during normal office hours. (3) The Regulator is to ensure that copies of a code are available to any person for purchase, at cost, during normal office hours. 22. Review, amendment and replacement of codes (1) The Regulator may, on his or her own initiative or at the request of any person or the Minister, review a code. (2) The Regulator must review a code when required to do so by the Minister. (3) The Regulator may amend, rescind or substitute a code. (4) As soon as practicable after the Regulator – (a) amends or substitutes a code under subsection (3) , the Regulator is to cause – (i) notice of the making of the amendment or substitution to be published in the Gazette; and (ii) the code, as amended or substituted, to be published on the Regulator's internet website; or (b) rescinds a code, the Regulator is to cause notice of the rescission to be published in the Gazette and on the Regulator's internet website. (5) The Regulator is to notify the Minister whenever the Regulator amends, rescinds or substitutes a code and provide the Minister with a copy of the amended or substituted code, as the case may be. Subdivision 3 - Administration of office of Water and Sewerage Economic Regulator 23. Guidelines for conduct of Regulator (1) The Regulator may issue guidelines concerning the manner in which the Regulator performs functions and exercises powers under this Act. (2) Before the Regulator issues any guidelines under this section, the Regulator must submit the guidelines to the Treasurer for approval. (3) The Regulator must keep the guidelines available for inspection by any person, free of charge, during normal office hours. (4) The Regulator is to ensure that copies of the guidelines are available to any person to purchase, at cost, during normal office hours. 24. Advisory committees (1) The Regulator may establish advisory committees to advise the Regulator on specified aspects of the administration of this Act. (2) The members of advisory committees are appointed and hold office on terms and conditions approved by the Treasurer. 25. Staff of Regulator The Regulator may arrange with the Secretary of the responsible Department in relation to the Financial Management Act 2016 for such State Service officers and State Service employees as the Regulator considers necessary employed in that Department to be made available to enable the Regulator to perform functions and exercise powers under this Act and those officers and employees may, in conjunction with State Service employment, serve the Regulator in any capacity. 26. Assistance and facilities The Regulator may arrange with any person to provide assistance or facilities to enable the Regulator to perform functions and exercise powers under this Act. 27. Funds (1) The funds of the Regulator consist of – (a) all money received by the Regulator in the course of performing functions and exercising powers under this Act; and (b) money appropriated by Parliament for the purpose of the Regulator; and (c) all other money received by the Regulator from any other source. (2) The funds of the Regulator are to be applied – (a) in the payment or discharge of the expenses, charges and obligations incurred or undertaken by the Regulator in the performance of functions and the exercise of powers; and (b) in the payment of the remuneration and allowances of the Regulator; and (c) in meeting the expenses incurred by the Regulator in respect of – (i) the use of the services of persons referred to in section 25 ; and (ii) the assistance or facilities provided under section 26 ; and (d) in any other manner authorised or required under this or any other Act. 28. Annual report of Regulator The annual report made by the Regulator, within the meaning of the Economic Regulator Act 2009 , under that Act is to include a report on the performance and exercise of the Regulator's functions and powers under this Act. 29. Tabling of annual report (1) By 31 October in each year, the Treasurer must cause a copy of the annual report referred to in section 28 for the previous financial year to be laid before each House of Parliament. (2) If the Treasurer is unable to comply with subsection (1) because a House of Parliament is not sitting on 31 October in any year, the Treasurer must – (a) on or before that day, provide copies of the annual report to the clerk of that House; and (b) within the first 7 sitting-days after that day, cause copies of the annual report to be laid before that House. Division 2 - Licensing of regulated entities Subdivision 1 - Licensing 30. Requirement for licence A person must not – (a) own or operate water infrastructure or sewerage infrastructure used for the provision of water services or sewerage services to another person; or (b) provide water services or sewerage services to another person, by means of, or in connection with the use of, water infrastructure or sewerage infrastructure; or (c) undertake any other activity that is declared by the Minister under section 31 to be a regulated activity – unless the person holds a licence under this Act authorising the relevant activity or is otherwise permitted under this Act to not hold a licence. Penalty: Fine not exceeding 10 000 penalty units and, in the case of a continuing offence, a further fine not exceeding 100 penalty units for each day during which the offence continues. 31. Declaration of regulated activities and non-regulated activities (1) The Minister may, by order, declare – (a) an activity to be a regulated activity; or (b) an activity to not be a regulated activity – if the Minister is satisfied that it is in the public interest to do so. (2) Before making an order under subsection (1) , the Minister must obtain the advice of the Regulator as to whether an activity should be declared to be a regulated activity or to not be a regulated activity. (3) The Regulator may at any time recommend to the Minister that an activity be declared to be a regulated activity or to not be a regulated activity. 32. Deemed licensee (1) Where more than one person is required to be licensed under section 30(a) in connection with a particular piece of water infrastructure or sewerage infrastructure, only one of thos