HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-24 Daily Xml
Contents
Pdf Xml

SAFE DRINKING WATER BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (17:56): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

In 2002 the United Nations declared that safe drinking water is a basic human right that is indispensable for leading a healthy life and a pre-requisite for realising other human rights. This Bill is about protecting the safety of drinking water supplies.

In South Australia the essential requirement of access to sufficient water for critical human needs has been highlighted by the recent drought and reinforced by the Commonwealth Water Act 2007 which recognises that water for critical human needs has the highest priority and must be taken into account. But access to sufficient water is not enough, it needs to be safe for drinking and basic hygiene to support sustainable communities.

The development of South Australian drinking water supplies has followed a similar path to those in other developed countries and regions. In the 19th century infectious diseases such as typhoid and cholera from contaminated water were common causes of illness and death. The response was to establish safe and reliable supplies, which was seen as a common good to be provided where possible and where practical by government. This led to the construction of large pipelines from the River Murray, a network of reservoirs in the Adelaide Hills and the mid-north, the installation of water treatment plants and an extensive distribution system.

There have been a number of challenges and emerging issues but these have been addressed by the development of an increasingly sophisticated system. Filtration of Adelaide water supplies was completed in the early 1990's and of all River Murray supplies in 2009. Chloramination was introduced in the 1980s to combat the causative agent of amoebic meningitis, Naegleria fowleri, operation of filtration processes was upgraded in the late 1990's to respond to the emergence of Cryptosporidium and more recently dual disinfection processes have been installed to provide added protection at a number of treatment plants. Most importantly comprehensive risk management systems have been established for all drinking water supplies operated by SA Water. The current system incorporates a multitude of controls that ensure supplies are monitored 24 hours a day, seven days a week. Throughout this development a strong and enduring collaboration has been maintained between SA Water and the Department of Health to meet the shared goal of ensuring safe drinking water supplies.

The outcome has been the establishment of safe and reliable drinking water supplies. As a result, in South Australia as in other developed States and countries, infectious disease is no longer the most common form of illness and death. In contrast, infectious disease including diarrhoeal disease remains the largest cause of death in developing countries. The World Health Organization estimates that about 2 million people, mostly children, die every year from diarrhoeal disease with a high proportion attributed to unsafe drinking water and poor sanitation.

However, while there have been great advances, safe drinking water cannot be taken for granted. The cost of complacency can be extremely high as demonstrated by significant outbreaks in North America and Europe. The most widely reported were two outbreaks in Milwaukee in the United States and Walkerton, Canada. The first occurred in 1993 where an estimated 403,000 people contracted cryptosporidiosis from contaminated water supplied in Milwaukee. The outbreak was associated with a filtered disinfected water supply not dissimilar in nature to Adelaide drinking water supplies. The estimated cost of illnesses alone was $96 million. The second occurred in 2000 in Walkerton, where contaminated water led to seven deaths and 2,300 illnesses. The overall cost was estimated to be $155 million together with loss of confidence in the town's water supply and substantial impacts on tourism.

In Australia the most notable incident occurred in Sydney in 1998 when three boil water notices were issued over a period of several weeks following the detection of suspected contamination of the drinking water supply with Cryptosporidium and Giardia. The incident received widespread national and international coverage and even though there was no evidence of illness in the community the overall cost of the incident to Sydney Water was estimated at $75M with a much larger public cost due to the impact of the boil water alerts.

The Sydney incident highlighted that communities expect their drinking water supplies to be safe and evidence to the contrary leads to strong responses as reflected in widespread media coverage. This was to be expected and such responses have been repeated whenever drinking water safety has been threatened. Even perceptions of failure can lead to high levels of community concern.

At the time of the Sydney incident there was little regulation of drinking water quality in Australia. Most urban water supplies were operated and owned by State and Territory Governments or Local Government and the introduction of regulations was not seen as a high priority. The primary responses to the Sydney incident were strengthening of the Australian Drinking Water Guidelines through inclusion of a preventive risk management system and operational reviews of urban water supplies to minimise the likelihood of recurrence. To a large extent these responses were led by the drinking water industry and State health departments. They were not directed by legislation. However, in the last 10-12 years operation and oversight of drinking water supplies have changed and there has been a gradual move toward regulation.

These changes have included increased corporatisation of the drinking water industry, outsourcing of functions, greater private involvement, increasing recognition of a disparity in the operation of large urban supplies and smaller community supplies and an increasing diversity of drinking water providers which is likely to increase in response to climate change. The shift toward commercialisation and corporatisation was identified by the Productivity Commission in 1998 which also noted in 2000 that regulation of drinking water safety was light-handed and while this increased flexibility it provided less certainty of compliance, transparency and accountability.

The first step toward increased regulation was inclusion of drinking water in the Model Food Bill in 2000 developed as part of the Intergovernmental Agreement on Food Regulation in Australia. This approach was adopted in the South Australian Food Act 2001 and Food Regulations 2002 which include general requirements to produce safe drinking water. However, the Model Food Bill and the South Australian legislation do not provide guidance on how this should be achieved or how it can be measured. Other States have developed specific drinking water legislation starting with Victoria in 2003 and followed by NSW in 2006 and Queensland in 2008. The Victorian legislation was designed to provide a consistent framework across the State as well as addressing the disparity between metropolitan and non-metropolitan supplies; the NSW legislation applies to private sector suppliers while the Queensland legislation was developed as part of a package responding to severe drought conditions.

In South Australia the long standing provision of drinking water by SA Water and collaboration with the Department of Health has served the State well with no recorded outbreaks and limited and well managed incidents. However, the changes occurring in the rest of Australia are also relevant to South Australia. Although SA Water supplies about 94% of the population of the State it is estimated that there over 500 independent drinking water providers that supply independent town supplies such as those at Coober Pedy, Leigh Creek and Roxby Downs, remote indigenous communities, schools, accommodation premises, hospitals and residential care facilities and water carters. It is expected that the number of suppliers will increase in response to challenges associated with climate variations and growing populations. Many of the independent providers are very small, but internationally it is recognised that management of small supplies can be a challenge and as a result they cause a disproportionate number of drinking water outbreaks.

Water for Good notes that with increasingly diversified supplies and potential new providers it is timely to develop and implement more prescriptive drinking water legislation to provide a more clearly defined framework for identifying roles, responsibilities and reporting requirements. The Bill fulfils these requirements and provides clear direction to drinking water providers on how to achieve safe drinking water in a manner that is consistent with the level of risk presented by different types of water supply.

The Bill was developed through a process that included extensive consultation with the broad range of individuals, organizations and agencies that could be affected by the provisions. These included operators of bed and breakfasts, water carters, Local Government, the SA Tourism Industry Council, SA Water, United Water, United Utilities and Government Agencies. The consultation commenced in 2008 prior to release of a Discussion Paper in 2009 and continued through the development and release of the draft Bill for formal consultation in 2010. A total of 22 written submissions were received during the two periods of consultation with more than half being provided by Local Government.

The core provisions described in the 2009 Discussion Paper and the draft Bill were largely derived from other Australian legislation and alternative mechanisms such as memorandums of understanding and codes of practice. Many of these provisions are also similar to requirements described in International legislation. During formal and informal consultation, responses to these provisions and the purpose of the proposed legislation were consistently positive and supportive. The only substantive changes were inclusion of provisions for exemptions for rainwater tank supplies in low risk settings and discretionary supplies in parks and other recreational areas. Other changes were generally limited to matters of detail, administrative clarity and implementation.

Comments received have been addressed and the resultant revisions have strengthened and improved the Bill. The outcome is a Bill that is both effective and practical. During consultation many stakeholders including water carters and operators of small supplies commented on the advantages of improved direction and clarity provided by the Bill. It was considered that regulation of drinking water supplies was a positive measure that would provide a level playing field for all drinking water providers and discourage poor practices.

I would like to take this opportunity to formally thank the individuals, organisations and agencies that participated in the consultation process and assisted in the development of the Bill. In particular I would like to acknowledge the contribution of Local Government and Environmental Health Australia, the professional body representing environmental health officers. Local Government plays a pivotal role in the protection of public health at a local and State level and together with the Department of Health administers the Food Act 2001. This experience underpinned the valuable contributions provided on the design of the Bill and practical aspects associated with implementation.

I now wish to discuss and highlight key features of the Bill.

The objective of the Safe Drinking Water Bill 2010 is to ensure the delivery of safe drinking water as described and defined by the Australian Drinking Water Guidelines published by the National Health and Medical Research Council and the Natural Resource Management Ministerial Council. The Bill describes actions that if implemented should protect drinking water safety. The Bill also describes reporting requirements when it is suspected that a water supply could be unsafe. This will enable action to be taken where necessary to protect public health.

The Bill applies to drinking water providers that are currently subject to the Food Act 2001 including SA Water and their contractors, operators of independent town water supplies, providers of drinking water in rural and outback communities, providers of drinking water in commercial settings such as schools, accommodation premises, hospitals and residential care facilities and water carters. All drinking water providers will need to register with the Department of Health. There will be no registration fee.

The Bill does not apply to businesses or others that supply water delivered by another drinking water provider such as SA Water or to domestic use of rainwater tanks and other private supplies. It also does not apply to packaged water including bottled water which by international convention is administered through food codes and legislation.

The Bill provides for exemptions for small supplies derived from rainwater tanks at premises such as bed and breakfasts, community halls and caravan parks, subject to advice being provided to guests about the source of the water. This could be achieved through simple measures such as standard tap signs and information on accommodation forms. This approach is consistent with current Department of Health advice that rainwater from well maintained tanks and roofs is generally safe but the decision to drink rainwater is a matter of personal choice. The Bill also provides for exemptions for discretionary sources of rainwater or bore water provided in recreational areas such as National Parks where drinking water supply is not guaranteed as a condition of use of the area.

The key requirement of the Bill is that all drinking water providers will need to implement risk management plans. Risk management plans are recognised as essential components for assuring drinking water quality and investigations of international outbreaks and incidents have shown that most if not all could have been prevented by better management. Following the Sydney Water incident fundamental changes were introduced into the Australian Drinking Water Guidelines to greatly strengthen the focus on sustained good management of drinking water supplies. A risk management framework that can be applied to all supplies irrespective of size was included in the guidelines. A similar framework was also incorporated in the World Health Organization Guidelines for Drinking-water Quality. South Australia had a strong involvement in developing the risk management frameworks in the guidelines and has since worked with drinking water providers throughout the state to facilitate the development of risk management plans. This has included plans for supplies at small accommodation premises, schools and rural and remote supplies as well as those operated by SA Water. This process began before development of the Bill and organizations such as the Bed and Breakfast and Farmstay Association recommend that their members implement risk management plans. Software and paper based tools have been developed to assist operators of small supplies to prepare plans. Experience has shown that these plans can be successfully developed by all types of drinking water providers.

The plans will include monitoring programs and incident protocols which will be used to verify water safety. Monitoring plans will describe testing requirements while incident protocols will include criteria for test parameters. Non-compliance with these criteria will have to be reported to the Department allowing immediate assessment of water safety and identification of responses. While water quality criteria will be based on guidance provided in the Australian Drinking Water Guidelines, the Bill will not include numerical standards. A significant advantage of this approach is that it retains flexibility in dealing with system specific issues. This is an extension of the existing arrangement between the Department and SA Water. In 1999 the then Government recognised the need for an interagency water incident protocol. The drivers for establishing the protocol were the Sydney Water Incident together with contamination events in untreated sources of Adelaide's water supplies. This protocol which is coordinated by the Department of Health has operated successfully for more than 10 years.

As monitoring programs and incident protocols are used as the mechanism to verify drinking water safety the Bill requires that they will need to be submitted to the Department of Health for approval. The Department will develop guidance on the preparation of monitoring plans and incident protocols. This will include generic monitoring plans and incident protocols for common examples of small water supplies.

The issue of monitoring costs was raised by a number of stakeholders but impacts will be minimised by tailoring requirements to match the size and risk of water supplies. For example, monitoring of very small water supplies will be based on current recommendations provided by the Department of Health and costs could be as low as between $55 and $130 per year. Monitoring requirements will increase in proportion to risk and those for larger supplies operated by SA Water will generally be in line with recommendations in the Australian Drinking Water Guidelines. SA Water already has an extensive monitoring program and a proportion of independent drinking water providers also undertake routine monitoring.

The Bill will increase transparency by requiring that all drinking water providers submit water quality results to the Department of Health and provide results to consumers. SA Water currently provides water quality results on a monthly basis which will satisfy the requirements of the Bill. Other providers submit results on an intermittent basis or not at all. Reporting requirements will be based on size and complexity of water supplies. For example, operators of small supplies could be required to submit results every 2 years.

Drinking water providers will also be required to provide results to consumers. Large and medium size providers could achieve this by publishing results on web-sites while small providers could provide information on request to consumers. This is a standard requirement in interstate and international jurisdictions.

The Bill provides for audits and inspections of drinking water supplies. This is a standard requirement in food legislation and interstate drinking water legislation. Audits and inspections are considered to be an important tool to confirm that risk management plans are effective in producing safe drinking water. Inspection and audit frequencies will be specified according to the size and complexity of drinking water supplies. For example, SA Water will be required to undergo an audit on an annual basis while medium providers such as independent town supplies and remote supplies will be subject to an audit once every two years and small providers including accommodation and food premises will be inspected once every two years.

To reduce duplication and impacts, inspections and audits will be combined with existing requirements wherever possible. For example, drinking water audits will be combined with existing mandatory food audits undertaken at hospitals, aged care facilities and child care centres while Bed and Breakfasts could have drinking water inspections incorporated into the existing accreditation program undertaken by the South Australian Tourism Industry Council. The Tourism Industry Council has indicated support for this approach.

Inspectors and auditors will be approved for the purposes of the Bill by the Department of Health. Expertise and training is currently available for inspectors and auditors. Environmental health officers employed by Councils have the required skills to undertake inspections of small water supplies while additional training provided in South Australia for food safety auditors is considered suitable for auditors of moderate size water supplies. Many environmental health officers have undertaken this training. A formal training course has been established for auditors required under the Victorian Safe Drinking Water Act and this training is suitable for auditing large drinking water supplies.

Under the Bill, the Minister will be charged with the overall responsibility for administering the legislation. Currently, the Food Act 2001 is jointly administered by the Department of Health and Local Government however the Department of Health will have greater responsibility in administering the Safe Drinking Water Bill. The primary reasons for this are that the largest supplier SA Water provides a statewide service that crosses Local Government boundaries while many independent water supplies are within unincorporated parts of the State. However, Local Government will retain inspection and enforcement powers for small drinking water providers in their area, such as water carters and businesses that provide drinking water in conjunction with other services, such as provision of food. Local Government currently has responsibility for ensuring compliance of these businesses with the Food Act 2001.

To ensure consistency, enforcement provisions including penalties for non-compliance specified in the Bill are similar to those provided in the Food Act 2001. These include penalties for supplying drinking water that is unsafe. In addition a penalty has been included for failure to report reasonable suspicions that a drinking water supply is unsafe.

In a similar fashion to the Food Act 2001 and the draft Public Health Bill 2010, the Bill allows the Minister, local Councils or bodies established by Council to appoint authorised officers for the purposes of administration and enforcement. Authorised officers will have similar powers to those specified in existing legislation and will allow officers to undertake inspections, require provision of information, issue notices for remediation and where necessary take emergency action. This could include issuing of boil water notices in the case of microbial contamination or restrictions on use in the case of chemical contamination.

Similar to the Food Act 2001, the Bill establishes a framework for consultation with Local Government in relation to the administration and enforcement of the legislation. The Bill provides for a memorandum of understanding to be developed to facilitate this consultation and to ensure a shared understanding of the processes and resources required to implement and administer the Bill. Local Government has indicated that it supports the administrative structure in the Bill.

The Bill refers to a number of matters that will be prescribed by regulations such as conditions of registration, provision of exemptions for rainwater tank based supplies, the content of risk management plans, furnishing of reports, functions of inspectors and auditors and testing requirements. The regulations will refer to the Australian Drinking Water Guidelines. The development of regulations will be subject to further consultation.

Other than concerns about the costs of monitoring there were few comments during consultation about the cost of compliance with the Bill. To a large extent this is because many of the requirements described in the Bill should already be undertaken to meet the broad intent of the Food Act 2001 and are recognised as good practice by responsible operators. A number of drinking water providers ranging from water carters to operators of independent town supplies indicated that they had implemented required actions. Additional costs will be incurred by providers who are not applying good management practices considered necessary to ensure and confirm supply of safe drinking water and public health protection. These costs are far below those associated with an outbreak or a substantial incident. In addition the Bill has been designed to ensure that requirements and hence costs are commensurate with the level of risk presented by different types of drinking water supply. In the case of rainwater tank based supplies in some premises and discretionary water supplies in parks and recreation areas the risk is considered to be so low that provisions for exemptions have been included.

In conclusion, the Bill provides increased protection of drinking water safety in a practical and clear manner without imposing undue costs. The Bill supports existing actions of responsible operators while discouraging poor practice. It applies equally to all drinking water supplies while recognising that requirements need to be commensurate with the level of potential of risk. The Bill provides for a level playing field for individual operators within specific commercial settings.

The Bill replaces the current general requirements in the Food Act 2001 with clear direction to providers on how to deliver safe drinking water and how this can be measured. The Bill provides greater certainty to drinking water providers and will improve consistency across the State for both urban and rural supplies. It will support the diversification of drinking water supplies and the entry of new drinking water providers by clearly identifying requirements, responsibilities and accountabilities. By delivering improved clarity and greater transparency the Bill will improve community confidence in drinking water supplies.

I acknowledge again, the assistance from all sectors involved in the provision of drinking water supplies as well as the invaluable contribution from Local Government in the development of this Bill.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This clause is formal.

3—Interpretation

This section inserts definitions of key terms used in the Bill including approved auditor, approved auditor/inspector, approved inspector, approved laboratory, authorised officer, Chief Executive, council, Department, District Court, domestic partner, drinking water, drinking water provider, enforcement agency, reticulated water system, risk management plan, spouse, vehicle and water resource.

Subsections (2), (3) and (4) further clarify when a person will or will not be taken to be a drinking water provider.

Subsection (5) explains when water will be taken to be 'supplied in bulk'—a term used in paragraph (a)(iv) of the definition of drinking water provider.

Subsection (6) clarifies that the term 'collection of water' includes the recovery or harvesting of water.

Subsection (7) explains the circumstances in which drinking water will be taken to be unsafe. The Bill contains several provisions where consequences flow from supplying unsafe drinking water.

Subsection (8) sets out when a person will be considered to be an associate of another.

Subsection (9) clarifies that a beneficiary of a trust includes an object of a discretionary trust.

4—Application of Act

This section clarifies the scope of the Act, namely that the Act does not apply in relation to—

any water collected or recovered at domestic premises of a prescribed class for use at those premises; or

rainwater collected at any place of a prescribed kind for use at that place if a notice relating to the use of the water is provided in accordance with the regulations; or

rainwater supplied as an optional alternative to water obtained from a registered drinking water provider if the person, in supplying the water, complies with the requirements (if any) prescribed by the regulations for the purposes of this paragraph; or

rainwater, or water recovered from a bore, well or a source prescribed by the regulations, supplied at a park, reserve or other place constituting open space that is available for public recreational purposes where it is reasonable to expect that members of the public would not usually expect to rely on the provision of water for human consumption at that place; or

water supplied, collected or recovered in any other circumstance prescribed by the regulations.

The Act will also not apply if the Minister exempts certain persons or classes of persons from the application of the Act or provisions of the Act. Such exemptions may be conditional, but if the person in whose favour the exemption exists fails to comply with such a condition, the person is guilty of an offence and liable to a maximum penalty of $25,000 or an expiation fee of $750.

Part 2—Registration of drinking water providers

5—Drinking water providers to be registered

Persons who supply drinking water as drinking water providers must be registered. Failure to be registered is an offence attracting a maximum penalty of $25,000 or an expiation fee of $750. The section further sets out the process for applying for registration.

6—Duration of registration

A person, once registered as a drinking water provider, is registered until the registration is cancelled or suspended or the drinking water provider dies or, in the case of a body corporate, is dissolved.

7—Person ceasing to supply drinking water

Registered persons must notify the Minister within a prescribed period after ceasing to be engaged in the supply of drinking water. Registration may be cancelled if the Minister receives such notification or if the Minister is satisfied that the person has ceased to be engaged in the supply of drinking water.

8—Conditions of registration

Registration of a person as a drinking water provider will be subject to conditions as may be imposed by the Minister or prescribed by the regulations. Failure by the person to comply with a condition is an offence attracting a maximum penalty of $25,000 or an expiation fee of $750.

9—Suspension of registration

This section sets out the circumstances under which a person's registration may be suspended. They are:

contravention or failure to comply with a condition of registration; or

failure to comply with a requirement relating to a risk management plan under Part 3 (including as to the implementation of, or compliance with, the requirements set out in a risk management plan); or

failure to ensure that an audit or inspection is conducted in accordance with a requirement under Part 4 Division 2; or

breach of, or failure to comply with, a requirement under Part 5 Division 1; or

failure to comply with a notice under Part 7 Division 3; or

failure to furnish a report or other form of information of a class prescribed by the regulations.

The remainder of the section includes procedural provisions including the rights of a drinking water provider to object to a proposal by the Minister to suspend the person's registration.

10—Appeals

A person may appeal to the District Court against—

a condition of registration imposed by the Minister; or

a variation by the Minister of a condition of registration; or

refusal of the Minister to grant an application to vary a condition of registration; or

a decision of the Minister to suspend a registration.

An appeal must be instituted within 28 days or such later time as may be approved by the District Court.

11—List of registered drinking water providers and provision of information

There will be a register of drinking water providers. This register is to be publicly available and each registration of a drinking water provider will be notified to the relevant council.

Part 3—Risk management plans

12—Drinking water providers to prepare, implement and review risk management plans

A drinking water provider must prepare a risk management plan, keep the plan under continuous review and revise any aspect of the plan requiring revision. A drinking water provider of a specified class may adopt a standard risk management plan published by the Chief Executive, rather than preparing a separate plan.

13—Risk management plan

This section sets out what a risk management plan is, namely, a document—

that contains a detailed description of the system of supply of water; and

that—

(i) identifies the risks to the quality of the water and the risks that may be posed by the quality of the water; and

(ii) assesses those risks; and

(iii) sets out the steps to be taken to manage those risks (including the development and implementation of preventative strategies); and

that sets out—

(i) monitoring and testing requirements associated with the quality of the water (a monitoring program); and

(ii) incident identification, notification and response procedures (an incident identification and notification protocol); and

that sets out maintenance schedules; and

that contains any other matter required by the regulations.

In addition, a risk management plan must comply with the regulations, including any standards, guidelines or codes specified by the regulations. Failure to so comply is an offence attracting a maximum penalty of $25,000 or an expiation fee of $750.

14—Related matters

This section sets out two key offences of this Bill.

The first offence (at subsection (1)) is that of supplying drinking water to the public without a risk management plan in respect of which the components comprised of the monitoring program and the incident identification and notification protocol have been approved by the Minister. Various procedural provisions are set out relating to approval by the Minister of the program and protocol. A person who commits this offence is liable to a maximum penalty of $25,000 or an expiation fee of $750.

The other offence (at subsection (7)) is that of failing to implement a risk management plan or to comply with the requirements of the plan. Again, the maximum penalty is $25,000 or an expiation fee of $750.

Part 4—Auditing and inspections

Division 1—Auditors and inspectors

15—Approval of auditors and inspectors

This section enables a natural person (ie not a body corporate) to apply for approval as an auditor or inspector. Once approved as an auditor, a person is also taken to be an approved inspector for the purposes of the Act. Approvals are managed by the Chief Executive. The remainder of this section deals with procedural matters relating to such approvals.

16—Term of approval

Approval of a person as an auditor or inspector remains in force for the period specified in the approval unless cancelled.

17—Conditions

This section sets out the offence of failing to comply with a condition of an approval as an auditor or inspector. The maximum penalty for committing this offence is $25,000 and the expiation fee is $750. The section also contains procedural provisions dealing with imposing, varying or deleting conditions of an approval, and rights of persons to object to a proposed suspension of an approval for an alleged contravention of or failure to comply with, such a condition.

18—Conflict of interest to be avoided

A person commits an offence attracting a maximum penalty of $25,000 or an expiation fee of $750 if he or she acts as an auditor or inspector in relation to a risk management plan—

(a) that the person has written or assisted in preparing; or

(b) that has been prepared by a drinking water provider who is an associate of the person; or

(c) that concerns the supply of drinking water in respect of which the person has a direct or indirect pecuniary or personal interest.

19—List of approved auditors and inspectors to be maintained

A list of approved auditors and a list of approved inspectors is to be prepared and maintained by the Chief Executive, made publicly available and revised from time to time.

Division 2—Audits and inspections

20—Scheme for audits and inspections

This section establishes the system whereby drinking water providers will be audited or inspected. The Chief Executive will, by notice in the Gazette, determine whether drinking water providers will be subject to audit or inspection and the frequency of such audits or inspections. Whether an audit or inspection will apply, and the frequency of audits or inspections, will depend on the size and complexity of operations carried out by the drinking water providers and any other matters the Chief Executive thinks fit.

The section requires an audit or inspection to be carried out of a drinking water provider both before the drinking water provider begins to supply drinking water to the public (under subsection (5)) and once operational (subsection (4)), in accordance with the relevant determination relating to the provider. Failure to comply with the relevant audit or inspection requirements is, in each case, an offence attracting a maximum penalty of $25,000 or an expiation fee of $750.

21—Audits and inspections

This section sets out the duties of auditors and inspectors. They are:

to determine whether the drinking water provider has complied with the requirements of Part 3 relating to risk management plans during the audit or inspection period;

to carry out any follow up audits or inspections, if necessary, to check to see if action has been taken to remedy any deficiencies of any risk management plan identified by the auditor or inspector;

to report in accordance with the requirements of Part 4 Division 2;

to undertake any other functions prescribed by the regulations in relation to audits or inspections.

In conducting an audit or inspection, the auditor or inspector must inspect documents of a kind prescribed by the regulations and comply with any prescribed requirements.

22—Reporting requirements

This section requires auditors and inspectors to provide written reports of their audits or inspections to the Chief Executive. It also requires auditors and inspectors who, as a result of an audit or inspection, believe that drinking water may be unsafe to report that belief to the Chief Inspector. Such reports must be passed on to the relevant drinking water provider. The maximum penalty for each of these offences is $5,000.

23—Assistance to facilitate an audit or inspection

A drinking water provider commits an offence if he or she fails to comply with any reasonable request or requirement of an auditor or inspector, with a maximum penalty of $5,000. A person who, without reasonable excuse, resists, obstructs or attempts to obstruct, an auditor or inspector in the exercise of a function under this Division is guilty of an offence attracting a maximum penalty of $5,000. A person also commits an offence attracting a maximum penalty of $25,000 for providing information that the person knows to be false or misleading information in a material particular in connection with the conduct of an audit or inspection.

Part 5—Quality of water and provision of reports

Division 1—Quality of water

24—Drinking water must be safe

This section makes it an offence for a drinking water provider to supply drinking water to the public that is unsafe. There are different penalties ranging from highest ($500,000) to lowest ($50,000) according to whether the provider knew, was reckless to the fact, or had no knowledge of the fact, that the water was unsafe and also according to whether the offender is a body corporate or a natural person.

25—Testing requirements

This section requires compliance by a drinking water provider with water testing requirements specified by the regulations or set out in a notice served on the provider by the Chief Executive. Failure to so comply is an offence for which the maximum penalty is $25,000 or an expiation fee of $750. The section specifies conditions precedent to the issuing of a notice by the Chief Executive, and provides that the testing may be required to be carried out at an approved laboratory (i.e. a laboratory approved under Part 6), or in accordance with the regulations or a notice furnished by the Chief Executive. These requirements are in addition to any testing requirements under a risk management plan.

Division 2—Provision of reports

26—Officer to report known or suspected contamination

This section places an obligation on officers of a drinking water provider (ie persons concerned in the management of the affairs of the drinking water provider, eg an executive officer) to report to the Chief Executive, any belief or reasonable suspicion that unsafe drinking water has been or is to be supplied for drinking water purposes. Failure by such an officer to report such a belief or suspicion is an offence attracting a maximum penalty of $25,000 or an expiation fee of $750.

27—Water quality monitoring information to be made publicly available

This section requires a drinking water provider to make publicly available the results of any monitoring program conducted on drinking water under the provider's risk management plan, with failure to do so an offence attracting a maximum penalty of $10,000 or an expiation fee of $210. The section also makes it an offence attracting a maximum penalty of $10,000 to publish results that the provider knows are false or misleading without including with the information details of the defect in the information.

Part 6—Approval of laboratories

28—Approval of laboratories

This section enables a person providing or intending to provide services under the Act at a laboratory to apply for an approval of the laboratory. Approvals of laboratories are managed by the Chief Executive. Further provisions of this section deal with procedural matters relating to the granting or refusal of approvals.

29—Recognised laboratories

Certain laboratories prescribed by regulation will be taken to be approved laboratories subject to any conditions prescribed by regulation.

30—Term of approval

An approval granted by the Chief Executive remains in force for a specified period unless suspended or cancelled.

31—Conditions

This section sets out the offence of an approved laboratory failing to comply with a condition of an approval. The maximum penalty for committing this offence is $10,000 and the expiation fee is $210. The section also contains procedural provisions dealing with imposing, varying or deleting conditions of an approval, and rights of persons in charge of a laboratory to object to a proposed suspension of an approval for an alleged contravention of, or failure to comply with, such a condition.

32—List of approved laboratories to be maintained

A list of approved laboratories is to be prepared and maintained by the Chief Executive, made publicly available and revised from time to time.

Part 7—Administration and enforcement

Division 1—Interpretation

33—Interpretation

This section defines the term enforcement agency as meaning—

the Minister; or

a council under the Local Government Act 1999; or

a body established by a council or councils under the Local Government Act 1999 and brought within the ambit of this definition by the regulations.

Division 2—Authorised officers

34—Appointment of authorised officers

A person may be appointed as an authorised officer by an enforcement agency if the person has appropriate qualifications or experience. An enforcement agency must prepare and maintain a list of authorised officers appointed by it.

35—Certificates of authority

An enforcement agency must provide each authorised officer appointed by it with a certificate of authority. A certificate of authority—

(a) may specify limitations on the powers of the officer;

(b) must be produced by the officer for inspection on request by a person in relation to whom the officer intends to exercise powers;

(c) must be surrendered if the officer ceases to be an authorised officer (failure to so surrender is an offence attracting a maximum penalty of $5,000).

36—Powers of authorised officers

The following powers may be exercised by an authorised officer in connection with the administration or operation of the Act or with the performance, exercise or discharge of a function, power or duty under the Act:

at any reasonable time, to enter or inspect any premises or vehicle;

during the course of the inspection of any premises or vehicle—

(i) to ask questions of any person found in the premises or vehicle; and

(ii) to inspect any article or substance found in the premises or vehicle; and

(iii) to take and remove samples of any substance or other thing found in the premises or vehicle; and

(iv) to require any person to produce any plans, specifications, books, papers or documents; and

(v) to examine, copy and take extracts from any plans, specifications, books, papers or documents; and

(vi) to take photographs, films or video recordings; and

(vii) to take measurements, make notes and carry out tests; and

(viii) to seize and retain, or issue a seizure order in respect of, anything that may constitute evidence of the commission of an offence against this Act;

to require any person to answer any question that may be relevant to the administration or enforcement of this Act.

An authorised officer may be accompanied by assistants in the exercise of powers under the Act, but may only use force to enter premises or a vehicle on the authority of a warrant issued by a magistrate or if the authorised officer believes, on reasonable grounds, that the circumstances require immediate action to be taken.

Persons in relation to whom an authorised officer is exercising powers must co-operate with the authorised officer including with requests for assistance to facilitate inspections, not hinder or obstruct the officer or a person assisting the officer and answer questions honestly. Failure to so co-operate is an offence attracting a maximum penalty of $25,000.

A person must not refuse or fail to furnish information on the ground that it might tend to incriminate the person or make the person liable to a penalty. There are restrictions on the use that may be made of potentially incriminating information provided in response to a request by an authorised officer.

37—Seizure orders

An object or thing may be seized under a seizure order issued by an authorised officer and served on the owner or person in control of the object or thing. It is an offence, without authority, to remove or interfere with an object or thing that is the subject of such an order attracting a maximum penalty of $25,000.

Subsection (3) sets out the circumstances in which an object or thing that is the subject of a seizure order may be released or forfeited, and circumstances in which compensation for such seizure may be required.

Division 3—Notices and emergencies

38—Notices

An enforcement agency may issue a notice for the purpose of—

securing compliance with a requirement imposed by or under the Act; or

averting, eliminating or minimising a risk, or a perceived risk, to the public in relation to drinking water.

Such a notice may impose a requirement that the person to whom the notice is issued—

discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from an enforcement agency; or

not carry on a specified activity except subject to specified conditions; or

take specified action in a specified way, and within a specified period or at specified times or in specified circumstances; or

take action to prevent, eliminate, minimise or control any specified risk to the public, or to control any specified activity; or

comply with any specified standard, guideline or code prepared or published by a body or authority referred to in the notice; or

undertake specified tests or monitoring; or

furnish to a body or authority referred to in the notice specified results or reports; or

prepare, in accordance with specified requirements and to the satisfaction of the enforcement agency, a plan of action to secure compliance with a relevant requirement or to prevent, eliminate, minimise or control any specified risk to the public.

A person may, within 14 days, appeal to the District Court against the notice.

An authorised officer may, if of the opinion that urgent action is required, issue such a notice, termed an 'emergency notice'. An emergency notice may be issued to a person orally provided that the person is immediately advised of his or her right to appeal to the District Court against the notice. An emergency notice ceases to have effect after 72 hours unless confirmed before then by a notice issued by an enforcement agency and served on the person.

Failure to comply with a notice (whether or not an emergency notice) is an offence attracting a maximum penalty of $25,000. It is also an offence to hinder or obstruct a person who is complying with such a notice and the same penalty applies.

39—Action or non-compliance with a notice

This section enables an enforcement agency (including an authorised officer or other person authorised to act on behalf of the enforcement agency) to take action required by a notice that a person has not complied with. The reasonable costs and expenses of taking such action may be recovered by the enforcement agency from that person as a debt in a court of competent jurisdiction. Failure to pay the debt within a fixed time makes the person liable to interest in addition to the debt.

40—Action in emergency situations

This section enables an authorised officer to take emergency action to avert, control or eliminate a risk to the public in relation to drinking water. If such action is warranted, the officer has the following additional powers (which may include the use of force to enter premises or a vehicle without a warrant):

(a) to enter and take possession of any premises or vehicle (taking such action as is reasonably necessary for the purpose); and

(b) to seize, retain, move or destroy or otherwise dispose of any substance or thing.

The reasonable costs and expenses of taking emergency action under this section may be recovered by an enforcement agency as a debt in a court of competent jurisdiction.

41—Specific power to require information

This section enables an enforcement agency to issue a notice requiring a person to furnish information relating to the quality or supply of drinking water, or any matter associated with the administration of the Act. Failure to comply with such a requirement is an offence attracting a maximum penalty of $25,000 or an expiation fee of $750.

A person must not refuse or fail to furnish such information on the ground that it might tend to incriminate the person or make the person liable to a penalty. There are restrictions on the use that may be made of potentially incriminating information provided as required.

42—Appeals

An appeal lies against a notice issued under Part 7 Division 3 provided it is instituted within 14 days or such longer period as may be approved by the District Court. An enforcement agency is entitled to be a party to appeal proceedings.

Part 8—Miscellaneous

43—Delegations

This section enables the Minister, the Chief Executive or an enforcement agency to delegate a power or function vested or conferred under the Act to a particular person or body or to the person for the time being occupying a particular office or position.

44—Service of notices or other documents

This section allows for various methods of service of notices or documents, namely by—

being served on, or given to, the person or an agent of the person; or

being left for the person at his or her place of residence or business with someone apparently over the age of 16 years; or

being sent by post to the person or an agent of the person at his or her last known address; or

being sent to the person by fax; or

being served or given in some other manner prescribed by the regulations.

In addition, if the notice or document is to be served on or given to a company or registered body within the meaning of the Corporations Act 2001 of the Commonwealth, it may also be served or given in accordance with that Act.

45—Disclosure of certain confidential information

This section makes it an offence attracting a maximum penalty of $50,000 for a person to disclose information relating to manufacturing or commercial secrets or working processes obtained in connection with the administration or execution of the Act unless the disclosure is made—

with the consent of the person from whom the information was obtained; or

in connection with the administration or operation of this Act; or

for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings; or

in accordance with a requirement imposed by or under this Act or any other law; or

to a person administering or enforcing a law of another jurisdiction that corresponds to this Act or any other law prescribed by the regulations; or

to a person administering or enforcing the Food Act 2001 or an Act of another jurisdiction that corresponds to that Act; or

to a law enforcement authority; or

with other lawful excuse.

A person does not commit the offence if the information was publicly available at the time the disclosure was made.

46—Protection from liability

No liability attaches to the Crown, the Minister, the Chief Executive, an enforcement agency, an authorised officer or any other authority or person engaged in the administration of this Act for an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty under this Act.

47—False information

A person commits an offence attracting a maximum penalty of $25,000 for providing information or producing a document (in connection with a requirement or direction under the Act) that the person knows to be false or misleading in a material particular.

48—Offences by bodies corporate

This section provides an avenue of pursuing individuals involved in the management of a body corporate where the body corporate has committed an offence under the Act or regulations.

49—Offences

This section restricts the persons who may commence proceedings for an offence against the Act to—

the Minister; or

the Director of Public Prosecutions; or

an authorised officer; or

a member of the staff of the Department; or

the chief executive officer of a council; or

a police officer; or

a person acting on the written authority of the Minister.

50—Agreement and consultation with local government sector

This section provides for the involvement of the LGA in the administration and enforcement of the Act. It also provides for Parliamentary scrutiny of reports about agreements entered into between the Minister and the LGA in relation to the exercise of functions under the Act by councils. The Minister must consult with the LGA before a regulation that confers a function on a council is made under the Act. Details of consultation, and of the operation of any agreement, referred to under the section must be included in the Minister's annual report.

51—Annual report by Minister

The Minister must, before 30 September in each year, prepare an annual report on the operation of the Act for the previous financial year, and cause copies to be laid before both Houses of Parliament.

52—Annual reports by enforcement agencies

This section requires enforcement agencies, before 30 September in each year, to report to the Minister on their activities during the previous financial year. The Minister must cause copies of the report to be laid before both Houses of Parliament.

53—Regulations

This section sets out the regulation making powers. They include powers to—

require the furnishing of reports, returns, documents or other forms of information relevant to the registration scheme under this Act to the Minister;

require the furnishing of reports, returns, documents or other forms of information relevant to quality or supply of drinking water, or to any other process or other matter associated with the supply of drinking water, to the Chief Executive or other prescribed person or body;

require the keeping of records, statistics and other forms of information—

(i) by any person or body that supplies drinking water; or

(ii) by any person or body that performs a function under or pursuant to this Act,

(and the provision of reports based on that information);

require that prescribed classes of systems or processes associated with the supply of drinking water must be managed, maintained or undertaken by persons with prescribed qualifications or experience, or who satisfy other competency requirements;

prescribe standards and other requirements that must be observed or applied in relation to the quality or supply of drinking water;

make provision with respect to the monitoring of drinking water quality, or any component or characteristic of drinking water, including with respect to the method, collection and analysis of samples;

provide for the making of announcements or the provision of advice to the public in prescribed circumstances;

prescribe guidelines to assist in the administration of this Act;

make provision with respect to any auditing, inspections or testing under this Act;

prescribe fees and charges in connection with any matter arising under this Act, including fees or charges for or in connection with the exercise, performance or discharge of any power, function or duty of an enforcement agency or an authorised officer under this Act, which may be of varying amounts according to factors prescribed in the regulations or determined by the Minister from time to time and published in the Gazette;

provide for the payment and recovery of prescribed fees and charges;

prescribe penalties, not exceeding $25,000, for a breach of any regulation;

fix expiation fees, not exceeding $750, for an alleged breach of any regulation.

This section also provides for the inclusion in the regulations of further matters relating to the adoption of standards, guidelines or codes.

Schedule 1—Consequential amendments and transitional provisions

Part 1—Consequential amendments

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Food Act 2001

2—Substitution of section 11

This clause substitutes section 11 of the Food Act 2001, updating that Act with terminology used in this Bill, and clarifies the fact that the Food Act only governs drinking water that is not governed by this Bill.

Part 3—Transitional provisions

3—Transitional provisions—initial period of operation of Act

This clause provides for a transitional phase for registration of drinking water providers under the Act.

For a person supplying drinking water as a drinking water provider (either as an existing provider or a new provider) before the expiry of three months after the commencement of clause 3 (this clause), the person will not be required—

to be registered until three months after the commencement of this clause; or

to comply with section 20(5); or

to have a risk management plan under Part 3 until the day of expiry of 12 months after the commencement of this clause.

For a person commencing to supply drinking water as a drinking water provider on or after the day of expiry of three months, but before the day of expiry of 12 months, after the commencement of this clause, the person will not be required to have a risk management plan under Part 3 until the day of expiry of 12 months after the commencement of this clause.

4—Other provisions

This clause enables the making of regulations of a saving or transitional nature consequent on the enactment of the Act. Such a regulation may, if the regulation so provides, take effect from the commencement of the Act or a later day, but if it takes effect earlier than the date of the publication of the regulation in the Gazette, it does not operate to the disadvantage of a person by—

decreasing the person's rights; or

imposing liabilities on the person.

Debate adjourned on motion of Hon. T.J. Stephens.


At 17:57 the council adjourned until Tuesday 5 April 2011 at 14:15.


PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT