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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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WATER INDUSTRY BILL

Introduction and First Reading

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

Second Reading

The Hon. I.K. HUNTER (Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (18:07): 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.

Water is a vital environmental and economic resource. With the onset of climate change and the prospect of major economic and population growth, it is clear that South Australia must continue to plan for its water security, as well as encourage more diverse water supplies from an increasingly sophisticated and diverse water services sector.

For these reasons, the Water Industry Bill 2011 will provide a new legislative foundation for a 21st century water industry. This is an industry in which increasing numbers of players will have the opportunity to drive more efficient and innovative service delivery for the long-term benefit of South Australian consumers.

This Bill repeals the outmoded Waterworks Act 1932, Water Conservation Act 1936 and Sewerage Act 1929. It represents another step forward in the Government's water reform agenda and complements a range of existing water, environment and public health legislation, including:

the Natural Resource Management Act 2004;

the Environmental Protection Act 1993; and

the Safe Drinking Water Act 2011.

A draft version of this Bill was tabled in Parliament on 23 November 2010. This allowed for further consultation with experts such as Professor Mike Young and Chief Scientist Don Bursill, as well as stakeholders such as the Local Government Association, the Water Industry Alliance, the South Australian Council of Social Services, the Council of the Ageing Seniors Voice and the Plumbing Industry Association.

The Government has taken the feedback on board and has produced a Bill that balances local industry's need for a more level playing field with the community's need for water service delivery that is safe, reliable, affordable and environmentally sustainable. It is clear from the 36 submissions and the broader consultation process that stakeholders support the need for stronger planning frameworks and modernised legislation for the water industry.

This is why the Bill seeks to enshrine in legislation a framework for open, transparent and collaborative water demand and supply planning, one that provides for:

an assessment of South Australia's water resources;

an assessment of current and future demand for water, including for the environment; and

policies, plans and strategies to ensure the state's water supplies are secure, reliable and sustainable.

These planning provisions build upon existing processes to provide a comprehensive and integrated approach to ensuring the state's long term water security. In particular, they complement the Government's adaptive approach to water management under Water for Good, in which the Minister for Water Security (now Minister for Water) can trigger an independent planning process where demand is at risk of exceeding supply.

The Bill lays an appropriate legislative foundation for an efficient, competitive and innovative water industry. A key element of this is the introduction of independent economic regulation for the industry, with the appointment of the Essential Services Commission of South Australia (or ESCOSA).

Independent economic regulation provides a transparent means of setting service standards and prices. Ultimately this is about protecting the long-term interests of customers and encouraging efficient investment in infrastructure.

Consistent with these aims, from 1 July 2012 the legislation will require the provision of retail water services or sewerage services to be licensed by ESCOSA. Licensees will be required to comply with industry codes to be developed by ESCOSA, related to matters such as standard contractual terms and conditions, minimum standards of service and limitations on disconnection.

ESCOSA will also be empowered to make final price determinations on retail prices for water and sewerage services, with the first determination for SA Water to be applied from 1 July 2013. The Government has heeded the advice of industry and local government on the need to encourage participation by alternative providers and for this reason ESCOSA will have a range of options for regulating prices and service standards.

The Bill has been developed with an aim to minimise the regulatory burden and costs. This means the cost of a licence will not be onerous and will be proportionate to the size and scale of the operator. The Bill also includes a number of pathways for exemptions from licensing to be granted either by ESCOSA, the Minister or through regulations. The Bill also clearly provides that irrigation service providers will be exempt from the legislation.

The goal of achieving a more level playing field for all industry participants is also reflected in provisions related to land and infrastructure, as well as technical regulation. Industry participants, including local government operators, will now be afforded much stronger operational powers in relation to land access and the protection of infrastructure—powers traditionally enjoyed only by SA Water.

Similarly, SA Water will cease to be responsible for the technical regulation of plumbing. The Bill provides for the appointment of an independent technical regulator responsible for the enforcement of technical and safety standards for plumbing. The scope of this body will initially be limited to plumbing in connection with SA Water's infrastructure, however, an expansion of this role is being explored in consultation with local government. Any proposal to expand the role will be subject of continued consultation with the Plumbing Industry Association and will take account of national reforms in occupational licensing.

The Government has heard and responded to industry's wish for earlier action on third party access. Action 77 in Water for Good originally proposed the development of a State-based third-party access regime by 2015. However, the imperative for earlier action is reflected in the Government's commitment in the Bill to bring forward a final report to Parliament within 12 sitting days of 1 August 2012. The report will address procedures for seeking access and dispute resolution, access pricing principles and compliance with national competition principles. Importantly, it will also address key stakeholder concerns about the need to protect public health and the environment and to maintain safety standards. This is a significant piece of work which will require continued consultation with industry and other stakeholders.

While the reforms in this Bill are good for industry, they are also good for the broader South Australian community. It is South Australian consumers who ultimately will benefit from the proposals in the Bill to regulate the terms and conditions of service and to encourage stronger competition and drive further investment and efficiencies in water and sewerage infrastructure.

The Bill also introduces a number of other important protections and safeguards for the South Australian community, including its most vulnerable citizens. The Bill requires water industry entities to participate in an ombudsman scheme determined or approved by ESCOSA. It is proposed that the existing energy ombudsman scheme be extended for this purpose.

A matter raised during consultation related to the possible disconnection of sewerage services for non-payment. Such a practice would have unacceptable public health implications. Accordingly, the Minister can use powers under the Bill to direct ESCOSA to ensure that domestic sewer services can be disconnected only in emergency situations, but not for non-payment. More generally, a water industry entity would have the power to restrict flow or disconnect water services for non-payment, but only in highly restricted circumstances. This would be in accordance with ESCOSA's code or any other licence condition imposed on the entity.

A further social welfare element of the Bill relates to concession schemes. Licence conditions will require water industry entities to comply with any concession scheme approved and funded by the Minister. An exemption scheme, to be approved and funded by the Minister, will be introduced to cover those charitable or community organisations who currently receive statutory exemptions from paying rates. Existing statutory exemptions for SA Water customers would continue as a transitional measure until a scheme is developed and implemented.

As it is important to protect low-income and regional consumers, the Minister will retain the power to require the relevant industry codes to include hardship provisions to assist customers who may be suffering specified types of hardship. In this respect, it will be critical for customers to have a range of accessible payment options, irrespective of location.

Similarly, in undertaking its price regulation function, ESCOSA would be required to comply with the requirements of any pricing order issued by the Treasurer. This is essential to manage the transition to independent economic regulation and to avoid any unexpected price shocks to consumers. It also ensures that important State Government policies, such as state-wide pricing, can be continued. Such arrangements will complement the concessions scheme and hardship provisions under the Bill, and they will be critical for vulnerable consumers and small regional communities.

Consistent with action 73 in Water for Good, the Government also remains committed to a review of pricing structures for water and sewerage services in the medium term. This will be undertaken by ESCOSA, who will be asked to examine matters such as property-based charging.

This review, along with the proposed report on third party access arrangements, will inform the next phase of the Government's water reform agenda and both will be important complements to the proposals in this Bill. Again, as with the proposals in this Bill, these initiatives will be the subject of major consultation with all interested stakeholders.

As Members can see, this Bill represents significant reform for South Australia's water industry and for all South Australians. It has been the subject of extensive consultation with industry and with community and environmental organisations.

The Bill strikes a balance between local industry's need for a more level playing field and the community's need for water service delivery that is safe, reliable, affordable and environmentally sustainable. As the driest state in the driest continent, it is imperative that the South Australian water industry continues to lead in innovative and efficient service delivery. This Bill provides the legislative foundation for this.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Objects

The objects of the Bill are—

to promote planning associated with the availability of water within the State to respond to demand within the community; and

to promote efficiency, competition and innovation in the water industry; and

to provide mechanisms for the transparent setting of prices within the water industry and to facilitate pricing structures that reflect the true value of services provided by participants in that industry; and

to provide for and enforce proper standards of reliability and quality in connection with the water industry, including in relation to technical standards for water and sewerage infrastructure and installations and plumbing; and

to protect the interests of consumers of water and sewerage services; and

to promote measures to ensure that water is managed wisely.

4—Interpretation

This clause contains definitions of words and phrases used in the Bill, including water industry entity, water infrastructure, water service, sewerage infrastructure and sewerage service.

5—Interaction with other Acts

This clause provides that the Bill is in addition to, and does not limit or derogate from the provisions of any other Act. The clause also provides that the Bill does not apply to or in relation to certain Acts relating to irrigation or any person providing irrigation services designated by the Minister, except to the extent prescribed by the regulations. Further, subclause (4) provides that the Bill does not apply to any person or entity, or any circumstance, excluded from the operation of the Bill by the regulations.

Part 2—Water planning

6—Water planning State Water Demand and Supply Statement, which, under subclause (4), must be comprehensively reviewed at least once in every 5 years. The clause also provides for procedures relating to the State Water Demand and Supply Statement.

Part 3—Administration

Division 1—Functions and powers of Commission

7—Functions and powers of Commission

This clause provides that the Commission has the licensing, price regulation and other functions and powers conferred by the Bill and any other functions and powers conferred by regulation under the Bill (in addition to the Commission's functions and powers under the Essential Services Commission Act 2002. Further, subclause (2) provides that if water industry entities are required by licence condition to participate in an ombudsman scheme, the Commission must, in performing licensing functions under the Bill, liaise with the ombudsman appointed under the scheme.

Division 2—Technical Regulator

8—Technical Regulator

There is to be a Technical Regulator appointed by the Minister.

9—Functions of Technical Regulator

This clause sets out the functions of the Technical Regulator.

10—Delegation

The Technical Regulator may delegate powers to a person or body or a person for the time being occupying a particular office or position.

11—Technical Regulator's power to require information

The Technical Regulator may require a person to give the Regulator information in the person's possession that the Regulator reasonably requires for the performance of the Regulator's functions. A person guilty of failing to provide information within the time stated in a notice may be liable to a fine of up to $20,000.

12—Obligation to preserve confidentiality

The Technical Regulator is under an obligation to preserve the confidentiality of any information gained in the course of administering the Bill that could affect the competitive position of a water industry entity or other person or is commercially sensitive for some other reason.

13—Annual report

The Technical Regulator must deliver to the Minister a report on the Technical Regulator's operations in respect of each financial year and the Minister must cause a copy of the report to be laid before both Houses of Parliament.

Division 3—Advisory committees

14—Consumer advisory committees

The Commission must establish a consumer advisory committee to provide advice to the Commission in relation to the performance of its licensing functions under Part 4 of the Bill and to provide advice to the Commission, either on its own initiative or at the request of the Commission, on any other matter relating to the water industry.

15—Technical advisory committee

The Technical Regulator must establish a technical advisory committee to provide advice to the Technical Regulator, either on its own initiative or at the request of the Technical Regulator, on any matter relating to the functions of the Technical Regulator.

16—Other advisory committees

The Minister, the Commission or the Technical Regulator may establish other advisory committees to provide advice on specified aspects of the administration of the Bill.

Part 4—Water industry

Division 1—Declaration as regulated industry

17—Declaration as regulated industry

This clause declares the water industry to constitute a regulated industry for the purposes of the Essential Services Commission Act 2002.

Division 2—Licensing of water industry entities

18—Requirement for licence

This clause provides that a person who provides a retail service without holding a licence authorising the relevant service or activity is guilty of an offence (Penalty: $1,000,000). The clause also provides that SA Water is entitled by the force of the clause to hold a non-transferable licence under the Part appropriate to the services, operations or activities provided, carried on or undertaken by it from time to time.

19—Application for licence

An application for the issue of a licence must be made to the Commission.

20—Consideration of application

The Commission has, subject to this clause, discretion to issue licences on be satisfied of certain factors (including, for example, the suitability of the applicant to hold a licence and that the water infrastructure or sewerage infrastructure to be used in connection with the relevant service is appropriate for the purposes for which it will be used).

21—Licences may be held jointly

A licence may be held jointly by 2 or more persons.

22—Authority conferred by licence

A licence authorises the person named in the licence to provide services or to carry on operations or activities in accordance with the terms and conditions of the licence. Any services, operations or activities authorised by a licence need not be all of the same character or undertaken at the same location but may consist of a combination of different services, operations or activities provided or carried on at 1 or more locations.

23—Term of licence

A licence may be issued for an indefinite period or for a term specified in the licence.

24—Licence fees and returns

A person is not entitled to the issue of a licence unless the person first pays to the Commission the relevant annual licence fee, or the first instalment of the relevant annual licence fee, as the case may require.

The holder of a licence issued for a term of 2 years or more must—

in each year lodge with the Commission, before the date prescribed for that purpose, an annual return containing the information required by the Commission by condition of the licence or by written notice; and

in each year (other than a year in which the licence is due to expire) pay to the Commission, before the date prescribed for that purpose, the relevant annual licence fee, or the first instalment of the relevant annual licence fee, as the case may require.

The annual licence fee for a licence is the fee fixed, from time to time, by the Treasurer in respect of that licence as an amount that the Treasurer considers to be a reasonable contribution towards prescribed costs.

Subclause (7) defines prescribed costs to mean the costs of administration of the Bill and the Essential Services Commission Act 2002 relating to the water industry, any costs associated with the development by the State Government of policies relating to the water industry and any other costs prescribed by regulation.

25—Licence conditions

This clause provides that a licence held by a water industry entity must be made subject to conditions determined by the Commission. For example, a licence will be subject to a condition requiring compliance with applicable codes or rules made under the Essential Services Commission Act 2002 as in force from time to time.

26—Third party access

This clause provides that the Minister must publish a report about third party access to water infrastructure and sewerage infrastructure services.

27—Offence to contravene licence conditions

There is a penalty of up to $1,000,000 if a water industry entity contravenes a condition of its licence.

28—Variation of licence

The Commission may vary the terms or conditions of a water industry entity's licence by written notice to the entity.

29—Transfer of licence

A licence may be transferred with the Commission's agreement.

30—Consultation with consumer bodies

The Commission may, before issuing a licence, agreeing to the transfer of a licence or determining or varying conditions of a licence, consult with and have regard to the advice of the Technical Regulator, the Ombudsman holding office under the industry ombudsman scheme and the consumer advisory committee under Part 3.

31—Notice of licence decisions

The Commission must give an applicant for a licence, or for agreement to the transfer of a licence, written notice of the Commission's decision on the application or affecting the terms or conditions of the licence.

32—Surrender of licence

A water industry entity may, by written notice given to the Commission, surrender its licence.

33—Suspension or cancellation of licences

The Commission may suspend or cancel a licence on certain grounds with effect from a specified date.

34—Register of licences

The Commission must keep a register of the licences currently held by water industry entities under the Bill.

Division 3—Price regulation

35—Price regulation

Subject to this clause, the Commission may make a determination under the Essential Services Commission Act 2002 regulating prices, conditions relating to prices, and price-fixing factors for retail services.

The Treasurer may issue an order (a pricing order) that—

sets out any policies or other matters that the Commission must have regard to when making a determination contemplated by this clause;

specifies various parameters, principles or factors that the Commission must adopt or apply in making a determination contemplated by this clause;

relates to any other matter that the Treasurer considers to be appropriate in the circumstances.

In addition to the requirements of section 25(4) of the Essential Services Commission Act 2002, the Commission must, in acting under subclause (1), comply with the requirements of any pricing order issued by the Treasurer.

Division 4—Standard terms and conditions for retail services

36—Standard terms and conditions for retail services

A water industry entity may, from time to time, fix standard terms and conditions governing the provision of services by the entity to customers of a designated class.

Division 5—Commission's powers to take over operations

37—Power to take over operations

If a water industry entity contravenes the Bill, or a water industry entity's licence ceases, or is to cease, to be in force and it is necessary, in the Commission's opinion, to take over the entity's operations (or some of them) to ensure an adequate supply of water to customers or the proper provision of any sewerage service (as the case may require) the Governor may make a proclamation authorising the Commission to take over the water industry entity's operations or a specified part of the water industry entity's operations.

38—Appointment of operator

When such a proclamation is made, the Commission must appoint a suitable person (who may, but need not, be a water industry entity) to take over the relevant operations on agreed terms and conditions.

Division 6—Related matters

39—Ministerial directions

The Minister may give directions to the Commission in relation to any prescribed matter (which is defined in subclause (4)).

Part 5—Powers and duties relating to land and infrastructure

Division 1—Water industry officers

40—Appointment of water industry officers

A water industry entity may, subject to conditions or limitations determined by the Minister, appoint a person to be a water industry officer for the entity. A water industry officer may only exercise powers under the Bill subject to the conditions of appointment, any limitations imposed by the Minister, and any directions given by the relevant water industry entity.

41—Conditions of appointment

A water industry officer may be appointed for a stated term or for an indefinite term that continues while the officer holds a stated office or position.

42—Identity cards

A water industry entity must give each water industry officer for the entity an identity card in a form approved by the Minister. A water industry officer must, before exercising a power in relation to another person, produce the officer's identity card for inspection by the other person.

Division 2—Management of land and infrastructure

43—Power to enter land to conduct investigations

A water industry entity may, by agreement with the occupier of land or on the authorisation of the Minister, enter and remain on land to conduct investigations or carry out any other form of work to assess the suitability of the land for the construction or installation of water/sewerage infrastructure. Procedures and matters related to investigations are set out.

44—Power to carry out work on land

An authorised entity may, at any reasonable time, enter and remain on land (including a road)—

to construct, install, improve or add to any water/sewerage infrastructure; or

to inspect, operate, maintain, test, repair, alter, remove or replace any water/sewerage infrastructure or equipment; or

to lay pipes and install, operate or inspect pumps and other equipment; or

to carry out other work in connection with the establishment or operation of any water/sewerage infrastructure or otherwise connected with any water service or sewerage service; or

to obtain or enlarge a supply of water; or

to protect, improve or restore the quality of water; or

to protect any infrastructure or equipment connected with any water service or sewerage service; or

to perform any other function brought within the ambit of this clause by the regulations.

The powers that may be exercised in the performance of a function set out above include—

to dig, break and trench any soil or to excavate any land; and

to remove or use any earth, stone, minerals, trees or other materials or things located on the land; and

to sink wells or shafts; and

to construct, make, maintain, alter, add to or discontinue any water/sewerage infrastructure; and

to divert or hold any water; and

to dig up, form or alter any road; and

to construct workshops, sheds or other buildings of a temporary nature; and

to undertake other activities or work as may be necessary or incidental to the performance of any such function.

Notice requirements, procedures and other administrative details relating to carrying out functions under this clause are set out.

45—Acquisition of land

A water industry entity may acquire land in accordance with the Land Acquisition Act 1969. However, a water industry entity may only acquire land by compulsory process under the Land Acquisition Act 1969 if the acquisition is authorised in writing by the Minister

46—Infrastructure does not merge with land

In the absence of agreement in writing to the contrary, the ownership of any infrastructure or equipment is not affected by the fact that it has been laid or installed as water/sewerage infrastructure on or under land (and so the infrastructure or equipment does not become a fixture in relation to the land).

47—Requirement to connect to infrastructure

A water industry entity involved (or proposing to be involved) in the sale and supply of sewerage services for the removal of sewage may apply to the Minister for approval of a scheme—

that provides for the supply of sewerage services through the use of prescribed infrastructure; and

that proposes that any owner of land adjacent to land where a designated part of the prescribed infrastructure is situated (other than owners (if any) excluded from the scheme) be required to connect to the prescribed infrastructure so as to become a customer of the water industry entity with respect to the sale and supply of the sewerage services under the scheme; and

that has, in relation to the prescribed infrastructure, been approved by a prescribed body as being fit and adequate for the provision of services that are proposed to be offered under the scheme; and

that complies with any other requirements prescribed by the regulations.

A scheme may—

provide that any connection made by a person under the scheme comply with any requirements specified by the water industry entity after consultation with the Technical Regulator and the Health Department; and

provide other requirements relating to the establishment, operation or management of the scheme that must be complied with by any owner of land adjacent to land where any prescribed infrastructure is situated; and

provide for other matters specified by the water industry entity and approved by the Minister.

Administrative details and procedures relating to such schemes are set out.

Part 6—Protection and use of infrastructure, equipment and water and powers in relation to installations

Division 1—Protection of infrastructure, equipment and services

48—Encroachments

A person must not, without lawful authority—

construct or place a building, wall, fence or other structure on or over any water/sewerage infrastructure, or create some other form of encroachment over any water/sewerage infrastructure (or any land directly associated with such infrastructure); or

create any form of encroachment over any easement that exists for the purposes of any water service or sewerage service; or

obstruct, fill in, close up or divert any water/sewerage infrastructure; or

excavate or alter any land or structure supporting any water/sewerage infrastructure.

Procedures relating to encroachments are set out.

49—Protection of infrastructure and equipment

A person must not, without lawful authority—

attach any equipment or other thing, or make any connection, to water/sewerage infrastructure; or

interfere with the collection, storage, production, treatment, conveyance, reticulation or supply of water through the use of water infrastructure or the collection, storage, treatment, conveyance or reticulation of sewage through the use of sewerage infrastructure; or

disconnect or interfere with any water/sewerage infrastructure, or any equipment associated with any water/sewerage infrastructure; or

damage any water/sewerage infrastructure, or any equipment associated with any water/sewerage infrastructure.

Procedures relating to the protection of infrastructure and equipment are set out.

50—Notice of work that may affect water/sewerage infrastructure

A person who proposes to do work near water/sewerage infrastructure must give the relevant water industry entity at least 14 days notice of the proposed work if—

there is a risk of equipment or a structure coming into dangerous proximity to water/sewerage infrastructure; or

in the case of water infrastructure—there is a risk of the work affecting the quality of any water within, or reasonably likely to enter, the infrastructure; or

the work may interfere with water/sewerage infrastructure in some other way.

If, in the circumstances of an emergency, it is not practicable to give the notice required above, and the notice is given as soon as practicable, a defence is available.

The regulations and a water industry entity may set out requirements for a person who does work near water/sewerage infrastructure to comply with. If a water industry entity suffers loss as a result of a contravention, the entity may recover compensation for the loss from a person guilty of the contravention on application to a court.

51—Duty to give notice before paving a road etc

Before beginning—

to first lay the pavement or hard surface in any road; or

to relay the pavement or hard surface in any road; or

to widen or extend the pavement or hard surface in any road; or

to alter the level of any road; or

to construct or alter any footpaths, gutters, kerbing or water tables in any road; or

to construct or alter any drainage work in any road,

in which there is any water/sewerage infrastructure, the person authorising or intending to do so must give the relevant water industry entity at least 14 days notice of the proposed work (being a notice that includes details of the nature and thickness of the pavement or hard surface proposed to be made or laid in any such work, and of any other work that is proposed to be undertaken).

The administrative details and procedures relating to work done under this clause are set out.

52—Unlawful abstraction, removal or diversion of water or sewage

A person must not, without proper authority—

abstract or divert water from any water infrastructure; or

abstract or divert any sewage from any sewerage infrastructure. (Penalty: $10,000 or imprisonment for 2 years).

A person must not install or maintain a pipe capable of conveying water beyond the boundaries of a site occupied by the person unless—

the person is a water industry entity; or

the person does so with the approval of a water industry entity that supplies water to the site; or

the person is authorised under the regulations or is acting in any prescribed circumstances.

If a water industry entity suffers loss as a result of a contravention, the entity may recover compensation for the loss from a person guilty of the contravention on application to a court.

53—Water meters

A person who is supplied with water by a water industry entity must, if required by the water industry entity—

allow a person authorised by the entity to enter land and fix a meter supplied by the relevant water industry entity;

ensure that a meter of a kind specified by the entity is fixed and used for purposes of measuring water supplied to the person. (Penalty: $10 000 or imprisonment for 2 years).

A person may be required to fix or use a water meter supplied.

A person must not, without proper authority, interfere with, or bypass, a meter.

If a water industry entity suffers loss as a result of a contravention, the entity may recover compensation for the loss from a person guilty of the contravention on application to a court.

54—Discharge of unauthorised material into water infrastructure

A person must not, without proper authority, discharge any solid, liquid or gaseous material, or any other item or thing, into any water infrastructure. (Penalty: $25,000). If a water industry entity suffers loss as a result of a contravention, the entity may recover compensation for the loss from a person guilty of the contravention on application to a court.

55—Discharge of unauthorised material into sewerage infrastructure

A person must not, without proper authority, discharge into any sewerage infrastructure any solid, liquid or gaseous material, or any other item or thing that is likely to damage the infrastructure (Penalty: $25,000).

A water industry entity may, in relation to any sewerage infrastructure operated by the entity, authorise the discharge of waste material, by a person (either on application or under a contract).

A person must not, without the authorisation of the relevant water industry entity, cause, permit or allow any rainwater, stormwater or surface water to flow into, or to otherwise enter, any sewerage infrastructure. (Penalty: $2,500).

If a water industry entity suffers loss as a result of a contravention, the entity may recover compensation for the loss from a person guilty of the contravention on application to a court.

56—Work to be carried out by owner at requirement of water industry entity with respect to sewerage infrastructure

In order—

to provide for the proper treatment (including the deodorising) of waste material before it is discharged from land into a drain connected to any sewerage infrastructure; or

to prevent the discharge of rainwater, stormwater or surface water into any sewerage infrastructure or to prevent the discharge into any sewerage infrastructure of waste material that has been prescribed as water material that may not be discharged into any sewerage infrastructure or that is, in the opinion of the relevant water industry entity, likely to damage or be detrimental to any sewerage infrastructure,

the relevant water industry entity may, by notice in writing served on the owner or occupier of the land, require the owner or occupier, within the time stated in the notice, to carry out work specified in the notice. A failure to comply with a notice under the clause attracts a penalty of up to $10,000.

The clause also sets out action that a person may be required to undertake under a notice, and administrative matters relevant to such action.

57—Power to disconnect drains or to restrict services

If a water industry entity has grounds to believe that material is being or has been (and that it is likely that a similar contravention will occur in the future) discharged from land into sewerage infrastructure in contravention of Part 6 Division 1, the entity may, after complying with any requirement prescribed by the regulations, close off or disconnect from the sewerage infrastructure 1 or more drains on the land that are connected to the infrastructure or restrict the provision of any sewerage service to the land. Before reopening or reconnecting a drain closed off or disconnected under this clause, the water industry entity may require the owner or occupier of the relevant land to pay the prescribed fee.

Division 2—Protection and use of water supply

58—Power to restrict or discontinue water supply

A water industry entity may lessen, prohibit or discontinue the supply of water (in accordance with subclause (3)) on certain grounds set out in subclause (1) (being grounds relating to matters such as the capacity to meet demand for water, standards relating to the quality or quantity of water supplied). The powers under this clause may only be exercised if justified in the circumstances. The clause also sets out administrative details and procedures relating to the exercise of such powers.

59—Power to require the use of devices to reduce flow

If a water industry entity believes on reasonable grounds that action under this clause is justified in the circumstances to supply water during periods of high demand, the entity may serve notice on the owner or occupier of land that is connected to water infrastructure operated by the entity. The clause sets out the things that a notice may direct an owner or occupier to do (and that a reasonable period for compliance must be set in the notice). If the requirements of a notice are not complied with, the water industry entity may install a flow reducing device to reduce the flow in the pipes on the relevant land notwithstanding that this reduction in flow will operate continuously instead of during the periods specified in the notice. A failure to comply with a notice attracts a penalty of $10,000 for a body corporate and $5,000 for a natural person.

60—Power to test and protect water

An authorised entity may, at any reasonable time, enter and remain on land—

to test any water that constitutes, or is reasonably likely to constitute, water to be supplied in connection with the provision of water services under this Bill; or

to avert, eliminate or minimise any risk, or perceived risk, to any water that constitutes, or is reasonably likely to constitute, water to be supplied in connection with the provision of water services under this Bill; or

in the event that it appears that water that constitutes, or is reasonably likely to constitute, water to be supplied in connection with the provision of water services under the Bill, has been adversely affected, or is reasonably likely to be adversely affected, by any circumstance—to take action to address that situation.

For the purposes of this clause—

testing under subclause (1)(a) may include taking samples of any water; and

action taken under subclause (1)(b) or (c) may constitute such action as the authorised entity thinks fit, including by removing anything from any water or any other place; and

action may be taken whether or not the water is located in any infrastructure.

The clause also sets out notice requirements and procedures relating to the exercise of powers under the clause, and powers that may be exercised in an emergency.

Division 3—Powers in relation to infrastructure and installations

61—Entry to land and related powers

A water industry officer for a water industry entity may, at any reasonable time, enter and remain in a place to which a water service or a sewerage service is supplied by the use of water/sewerage infrastructure operated by the entity—

to inspect any infrastructure, equipment or other thing installed or used in connection with the supply, use or storage of water or the collection or removal of sewage (including on the customer's side of any connection point); or

to read, or check the accuracy of, a meter for measuring the supply of water; or

to install, repair or replace any infrastructure, meter, equipment or works (including where the infrastructure, meter, equipment or works have been installed by another person or are located on the customer's side of any connection point); or

to investigate suspected theft of water; or

to investigate whether there has been a contravention of Part 6 Division 1 or 2; or

to see whether a hazard exists in connection with any infrastructure, equipment, works or other thing; or

to take action to prevent or minimise any hazard in connection with the supply, use or storage of water or the collection or removal of sewage; or

to take samples of any water or other material in any infrastructure, equipment or works, or on any land; or

to exercise any other power prescribed by the regulations. Relevant matters to the entry of land under the clause are set out.

62—Disconnection etc if entry refused

If a water industry officer seeks to enter a place under Part 6 and entry is refused or obstructed, the water industry officer may, by written notice to the occupier of the place, ask for consent to entry by the water industry officer.

If entry is again refused or obstructed, the water industry entity may—

if it is possible to do so—disconnect the supply of water to the place, or the collection of sewage from the place, or restrict the supply of services to that place, without entering the place; or

if the above is not possible without entering the place—obtain a warrant under Part 10 to enter the place for the purpose of making a disconnection or restriction envisaged, and then enter the place under the warrant and take the relevant action.

A water industry officer may not enter a place under a warrant unless accompanied by a police officer.

The water industry entity must restore a connection if—

the occupier consents to the proposed entry and pays the appropriate reconnection fee; and

it is safe to restore the connection; and

there is no other lawful ground for refusing to restore the connection.

63—Disconnection in an emergency

A water industry entity may, without incurring any liability, cut off the supply of water to any region, area, land or place if it is, in the entity's opinion, necessary to do so to avert danger to any person or property.

64—Special legislation not affected

Nothing in this Bill affects the exercise of any power, or the obligation of a water industry entity to comply with any direction, order or requirement, under the Emergency Management Act 2004, Environment Protection Act 1993, Essential Services Act 1981, Fire and Emergency Services Act 2005 or the Public and Environmental Health Act 1987.

Part 7—Technical and safety issues

65—Standards

The Technical Regulator may, by notice in the Gazette, publish standards—

relating to the design, manufacture, installation, inspection, alteration, repair, maintenance (including cleaning), removal, disconnection or decommissioning of any infrastructure that is used, or is capable of being used, in the water industry, or any equipment connected to, or any equipment, products or materials used in connection with, any infrastructure that is used, or is capable of being used, in the water industry (including on the customer's side of any connection point); or

relating to plumbing, including plumbing work or any equipment, products or materials used in connection with plumbing; or

providing for any other matter that the Bill may contemplate as being dealt with or administered by a standard prepared or published by the Technical Regulator.

if the above is not possible without entering the place—obtain a warrant under Part 10 to enter the place for the purpose of making a disconnection or restriction envisaged, and then enter the place under the warrant and take the relevant action.

A standard may—

specify the nature and quality of the materials from which infrastructure or equipment must be constructed; and

specify the design and size of any pipes or other equipment that may be connected to any infrastructure or used in connection with plumbing; and

specify requirements in relation to the construction, installation or positioning of any infrastructure or equipment; and

specify the number of pipes and other equipment that may be connected to any infrastructure or device; and

specify the position of pipes and other equipment connected to any infrastructure or device; and

specify requirements with respect to any products or materials used in connection with any infrastructure or plumbing; and

specify the procedures to be followed when installing, inspecting, altering, repairing, maintaining, removing, disconnecting or decommissioning any infrastructure or equipment; and

specify requirements relating to the operation, testing or approving of any infrastructure, equipment, products or materials; and

specify examination and testing requirements; and

specify performance or other standards that must be met by any infrastructure, equipment, products or materials (and, in doing so, specify methodologies or other processes or criteria for assessing compliance with those standards, including as to the efficiency, impact or effectiveness of any infrastructure, equipment, products or materials); and

provide for any other matter prescribed by the regulations. The clause sets out procedural matters relating to standards.

66—Performance of regulated work

Any work to which subclause (1) applies (as specified by the regulations) must be carried out by a person with qualifications or experience recognised by regulations made for the purposes of this clause.

A person to whom subclause (2) applies (as specified by the regulations) who carries out specified work—

in relation to any infrastructure that is used in the water industry; or

in relation to any equipment connected to, or used in connection with, any infrastructure that is used in the water industry (including on the customer's side of any connection point); or

in connection with plumbing (including on the customer's side of any connection point),

must ensure that—

the work is carried out as required by a standard published under Part 7; and

examinations and tests are carried out as required by standards published under Part 7.

A failure to comply with a notice under the clause attracts a penalty of up to $5,000.

67—Responsibilities of water industry entity

A water industry entity must, in relation to—

any infrastructure used by the entity in the water industry; or

any equipment connected to, or any equipment, products or materials used in connection with, any infrastructure used by the entity in the water industry,

take reasonable steps to ensure that—

the infrastructure, equipment, products or materials comply with, and are used in accordance with, technical and safety requirements specified by standards published under Part 7; and

the infrastructure, equipment, products or materials are safe and in good working order. (Penalty $250,000).

68—Responsibilities of customers

A customer who is supplied with a retail service must—

ensure that any equipment located on his or her premises that is relevant to the operation of that service (being equipment located on the customer's side of the connection point) complies with any relevant technical or safety requirements and is kept in good repair; and

take reasonable steps to prevent any water running to waste on the premises, or any waste material that should be discharged into a sewerage system to escape. (Penalty $2,500).

69—Prohibition of sale or use of unsuitable items

If, in the Technical Regulator's opinion, a particular component or component of a particular class is, or is likely to become, unsuitable for use in connection with the supply of water or the removal or treatment of sewerage, the Technical Regulator may—

prohibit the sale or use (or both sale and use) of the component or components of the relevant class; and

require traders who have sold the component in the State to take specified action (such as to recall the component from use and either render the component suitable for use or refund the purchase price on the component).

Procedures relating to a prohibitions and requirements are set out. A failure to comply with a prohibition or requirement attracts a penalty of up to $10,000.

70—Public warning statements about unsuitable components, practices etc

The Technical Regulator may, if satisfied that it is in the public interest to do so, make a public statement identifying and giving warnings or information about any of the following:

components for any relevant equipment that, in the opinion of the Technical Regulator, are or are likely to become unsuitable for use and persons who supply the components;

uses of relevant equipment or components for relevant equipment, or installation practices, that, in the opinion of the Technical Regulator, are unsuitable;

uses of products or materials that, in the opinion of the Technical Regulator, are unsuitable;

any other practices or circumstances associated with relevant equipment or components for relevant equipment.

Neither the Technical Regulator nor the Crown incurs any liability for a statement made by the Technical Regulator in good faith in the exercise or purported exercise of powers under this clause.

Part 8—Enforcement

Division 1—Appointment of authorised officers

71—Appointment of authorised officers

The Minister may appoint persons to be authorised officers, who may be assigned to assist 1 or more of the Minister, the Commission, or the Technical Regulator. An officer will be subject to control and direction by the Minister, the Commission, or the Technical Regulator under a scheme established by the Minister after consultation with the Commission and the Technical Regulator.

72—Conditions of appointment

An authorised officer may be appointed for a stated term or for an indefinite term that continues while the officer holds a stated office or position on the conditions stated in the instrument of appointment.

73—Identity cards

An authorised officer must be issued with an identity card in a form approved by the Minister. An authorised officer must, at the request of a person in relation to whom the officer intends to exercise any powers, produce for the inspection of the person his or her identity card (unless the identity card is yet to be issued).

Division 2—General powers of authorised officers

74—Power of entry

An authorised officer may, as reasonably required for the purposes of the administration or enforcement of the Bill, enter and remain in any place.

75—Inspection powers

This clause sets out various powers of an authorised officer who enters a place under

Part 6 of the Bill.

Division 3—Specific powers in relation to infrastructure and equipment

76—Disconnection of supply

This clause provides that if an authorised officer finds that water is being supplied or consumed contrary to the Bill, the authorised officer may disconnect the water supply. If a water supply has been so disconnected, a person must not reconnect the water supply, or have it reconnected, without the approval of an authorised officer

77—Power to make infrastructure etc safe

If an authorised officer finds any water/sewerage infrastructure or any equipment, product or materials unsafe, the authorised officer may—

disconnect the supply of water to the place, or the collection of sewerage from the place, or give a direction requiring any such disconnection;

restrict the provision of any service;

give a direction requiring the carrying out of work necessary to make the infrastructure, equipment, product or materials safe before any reconnection is made.

Failure to comply with such a direction or to reconnect the water supply or sewerage infrastructure (as the case may be) unless the work required by the direction has been carried out, or an authorised officer approves the reconnection attracts a maximum penalty of $10,000.

Division 4—Related matters

78—Power to require information or documents

An authorised officer may require a person to provide information in the person's possession or produce documents relevant to the administration or enforcement of this Bill. Failure, without reasonable excuse, to comply with such a requirement may lead to a fine of up to $10,000.

79—Enforcement notices

An authorised officer may issue a notice (an enforcement notice) for the purpose of securing compliance with a requirement imposed by or under the Bill. The clause also provides for emergency enforcement notices, and sets out what may be included in a notice and relevant procedures relating to notices.

80—Self-incrimination

A person is not required to give information or produce a document under Part 8 if the answer to the question or the contents of the document would tend to incriminate the person of an offence.

However, if a person is required to give information or produce a document under this Part in circumstances prescribed by the regulations and the information or document would tend to incriminate the person of an offence, the person must nevertheless give the information or produce the document, but—

if the person is a natural person, the information or document so given or produced will not be admissible in evidence against the person in proceedings for an offence (other than an offence relating to the making of a false or misleading statement or declaration); and

if the person is a body corporate—

the information or document so given or produced will not be admissible in evidence against a director of the body corporate in proceedings for an offence (other than an offence relating to the making of a false or misleading statement or declaration); and

a director will not be guilty of an offence (other than an offence relating to the making of a false or misleading statement or declaration) as a result of the body corporate having been found guilty of an offence in proceedings in which the information or document so given or produced was admitted in evidence against the body corporate.

81—Warning notices and assurances

The Commission is authorised to issue a warning notice if it appears that a person has contravened a provision of Part 4 and the Technical Regulator is authorised to issue a warning notice if it appears that a person has contravened a provision of Part 7.

82—Injunctions

The District Court may, on the application of the Minister, the Commission, the Technical Regulator or any other person, grant an injunction (including an injunction requiring remedial action) if satisfied that a person has engaged or proposes to engage in conduct that constitutes or would constitute a contravention of this Bill.

Part 9—Reviews and appeals

83—Review of decisions by Commission or Technical Regulator

An application may be made to—

the Commission by an applicant for the issue or variation of the terms or conditions of a licence under Part 4, or for agreement to the transfer of such a licence, for review of a decision of the Commission to refuse the application; or

the Commission by a water industry entity for review of a decision of the Commission under Part 4 to suspend or cancel the entity's licence or to vary the terms or conditions of the entity's licence; or

the Technical Regulator by a person to whom a direction has been given by the Technical Regulator or an authorised officer for review of the decision to give the direction; or

the Technical Regulator by a person affected by the decision for review of a decision of an authorised officer or a water industry officer to disconnect a supply of water to a place, or the collection of sewage from a place, or to restrict the provision of a service.

The administrative details of implementing such an application are set out.

84—Appeals

The following rights of appeal lie to the District Court:

an applicant for review under clause 83 who is dissatisfied with a decision as confirmed, amended or substituted by the Commission or the Technical Regulator; or

a person to whom an enforcement notice has been issued under Part 8 Division 4.

The procedures of an appeal are set out.

85—Minister's power to intervene

The Minister may intervene, personally or by counsel or other representative, in a review or appeal for the purpose of introducing evidence, or making submissions, on any question relevant to the public interest.

Part 10—Miscellaneous

86—Minister's power to require information

The Minister may require the Commission, the Technical Regulator, a water industry entity or other person to give the Minister, within a time specified by the Minister (which must be reasonable), information in the person's possession that the Minister reasonably requires for the performance of the Minister's functions under the Bill.

87—Delegation by Minister

The Minister may delegate powers to a person or body or a person for the time being occupying a particular office or position.

88—Consultation between agencies

The following agencies must, insofar as they share common interests, consult with each other in connection with the operation and administration of the Bill:

the Commission;

the Technical Regulator;

the Minister's Department;

the Health Department;

the Environment Protection Authority.

89—Seizure and dismantling of infrastructure

Water/sewerage infrastructure cannot be seized and dismantled in execution of a judgment (but this clause does not prevent the sale of infrastructure as a part of a going concern in execution of a judgement).

90—Water conservation measures

For the purposes of this clause, water conservation measures may do 1 or more of the following:

prohibit the use of water for a specified purpose or purposes, or restrict or regulate the purposes for which water can be used;

prohibit the use of water in a specified manner or by specified means, or restrict or regulate the manner in which, or the means by which, water may be used;

in the event that it appears that water that constitutes, or is reasonably likely to constitute, water to be supplied in connection with the provision of water services under the Bill, has been adversely affected, or is reasonably likely to be adversely affected, by any circumstance—to take action to address that situation.

The Governor may, by regulation, introduce 1 or more water conservation measures, which may be declared to be for the purposes of taking action to provide for the better conservation, use or management of water (longer-term measures), or for the purposes of taking action on account of a situation, or likely situation, that, in the opinion of the Governor, has resulted, or is likely to result, in a decrease of the amount of water available within a particular area of the State (short-term measures).

The clause sets out procedures for regulations relating to water conservation measures.

91—Save the River Murray levy

This clause continues the Save the River Murray levy.

92—Save the River Murray Fund

This clause continues the Save the River Murray Fund.

93—Immunity

No act or omission undertaken or made by a designated entity, or by another person acting under the authority of a designated entity, exercising or performing a power or function under the Bill (including by discontinuing or disconnecting any service, taking action that may damage any land or property, or adversely affecting the use or enjoyment of any land or property) gives rise to any liability against the designated entity, person or the Crown.

Nothing done by a person in furnishing information to a designated entity in accordance with a requirement under this Bill—

is to be regarded as placing the person in breach of contract or confidence or as otherwise making the person guilty of a civil wrong; or

is to be regarded as placing the person in breach of, or as constituting a default under, any Act or other law or obligation or any provision in any agreement, arrangement or understanding; or

is to be regarded as fulfilling any condition that allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or

is to be regarded as giving rise to any remedy for a party to a contract or an instrument; or

gives rise to any right or entitlement to damages or compensation.

94—Impersonation of officials etc

A person must not impersonate an authorised officer, a water industry officer or anyone else with powers under the Bill. (Penalty: $5,000).

95—Obstruction of officials etc

A person must not, without reasonable excuse, obstruct an authorised officer, a water industry officer, or anyone else engaged in the administration of the Bill or the exercise of powers under the Bill (Penalty: $10,000). Neither must a person must not use abusive or intimidatory language to, or engage in offensive or intimidatory behaviour towards, an authorised officer, a water industry officer, or anyone else engaged in the administration of the Bill or the exercise of powers under the Bill. (Penalty: $5,000).

96—Fire plugs

A water industry entity must, at the direction of the Minister, provide and maintain fire plugs, maintain various standards, and comply with any other requirements relating to the provision of water for fire-fighting purposes, in accordance with any scheme determined by the Minister for the purposes of the clause.

97—Obstruction of works by occupiers

An occupier of land must not—

refuse to allow an owner of the land to enter the land and take action to comply with any provision of the Bill, or a requirement imposed under the Bill;

without reasonable excuse, obstruct an owner of the land who is taking action to comply with any provision of the Bill, or a requirement imposed under the Bill. (Penalty: $5,000).

98—False or misleading information

A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information furnished under the Bill. The penalty if the person made the statement knowing that it was false or misleading is $10,000 or imprisonment for 2 years. In any other case, the penalty is $5,000.

99—Offences

Proceedings for an offence against the Bill must be commenced within 5 years of the date of the alleged offence. The clause also contains procedures relating to offences and expiation notices.

100—General defence

It is a defence to a charge of an offence against the Bill if the defendant proves that—

the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence;

the act or omission constituting the offence was reasonably necessary in the circumstances in order to avert, eliminate or minimise danger to person or property

101—Offences by bodies corporate

If a body corporate is guilty of an offence against the Bill, each director of the body corporate is, subject to the general defences under this Part, guilty of an offence and liable to the same penalty as may be imposed for the principal offence.

102—Continuing offences

Provision is made for ongoing penalties for offences that continue.

103—Order for payment of profit from contravention

The court convicting a person of an offence against the Bill may order the convicted person to pay to the Crown an amount not exceeding the court's estimation of the amount of any monetary, financial or economic benefits acquired by the person, or accrued or accruing to the person, as a result of the commission of the offence.

104—Statutory declarations

A person may be required to verify information given under the Bill by statutory declaration.

105—Power of exemption

The Commission may, with the approval of the Minister, grant an exemption from Part 4, or specified provisions of that Part, on terms and conditions the Commission considers appropriate.

The Technical Regulator may grant an exemption from Part 7, or specified provisions of that Part, on terms and conditions the Technical Regulator considers appropriate.

The Minister may grant an exemption from any provision of the Bill, other than under Part 4, on terms and conditions the Minister considers appropriate.

The clause also sets out relevant matters relating to exemptions.

106—Application and issue of warrant

Application may be made to a magistrate for a warrant to enter a place specified in the application and the magistrate may issue one if satisfied that there are reasonable grounds for doing so.

107—Urgent situations

Application may be made to a magistrate for a warrant by telephone, fax or other prescribed means if the urgency of the situation requires it.

108—Evidence

This clause provides for evidentiary matters in any proceedings.

109—Service

The usual provision for service of notices or other documents is made in this clause.

110—Ventilators

A water industry entity may cause a ventilating shaft, pipe or tube for any sewerage infrastructure or drain to be attached to the exterior wall of a building, so long as the mouth of a shaft, pipe or tube is at least 1.8 metres higher than any window or door situated within a distance of 9 metres from its location.

111—Regulations

The Governor may make regulations for the purposes of the Bill.

Schedule 1—Appoint and selection of experts for District Court

This Schedule sets out provisions relating to the appointment and selection of experts for District Court.

Schedule 2—Related amendments, repeals and transitional provisions

This Schedule sets out related amendments to other Acts. The Sewerage Act 1929, the Water Conservation Act 1936 and the Waterworks Act 1932 are to be repealed. The Schedule also sets out various provisions addressing a number of transitional issues associated with the enactment of this new legislation.

Debate adjourned on motion of Hon. J.M.A. Lensink.


At 18:08 the council adjourned until Tuesday 22 November 2011 at 11:00.


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