Water Industry Competition Act 2006 No 104
Current version for 1 January 2014 to date (accessed 19 December 2014 at 18:09)
Part 2

Part 2 Licensing of network operators and retail suppliers

Division 1 Preliminary

5   Prohibition of unlicensed network operation and water supply

(1)  A person must not:
(a)  construct, maintain or operate any water industry infrastructure, or
(b)  supply water, or provide a sewerage service, by means of any water industry infrastructure,
otherwise than under the authority of a licence.

Maximum penalty: 10,000 penalty units (in the case of a corporation) and 2,500 penalty units (in any other case).

Note. An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 97.
(2)  Subsection (1) (b) does not apply to or in respect of the supply of water, or the provision of sewerage services, by a licensed network operator to a licensed retail supplier or public water utility.
(3)  This section does not apply to a public water utility in relation to:
(a)  the construction, maintenance or operation of water industry infrastructure situated within its area of operations, or
(b)  the supply of water, or the provision of a sewerage service, by means of water industry infrastructure situated within its area of operations.
(4)  This section does not apply to or in respect of:
(a)  such water industry infrastructure as comprises water management works to which Chapter 4, 5 or 6 of the Water Management Act 2000 applies, or
(b)  such other water industry infrastructure as is prescribed by the regulations.

6   Licences

(1)  Subject to any conditions imposed on it by or under this Act:
(a)  a network operator’s licence authorises the licensee, and any other person specified in the licence, to construct, maintain and operate the water industry infrastructure so specified for the purposes so specified, and
(b)  a retail supplier’s licence authorises the licensee, and any other person specified in the licence, to supply water or provide sewerage services (or, if so specified, both), by means of water industry infrastructure, to persons or classes of persons so specified.
(2)  Nothing in this section exempts a licensee from:
(a)  any requirement under the Water Management Act 2000 to hold an access licence or water supply work approval, or
(b)  any requirement under the Protection of the Environment Operations Act 1997 to hold an environmental protection licence.

7   Licensing principles

(1)  In considering whether or not a licence is to be granted under this Part and what conditions are to be imposed on such a licence, regard is to be had to the following principles:
(a)  the protection of public health, the environment, public safety and consumers generally,
(b)  the encouragement of competition in the supply of water and the provision of sewerage services,
(c)  the ensuring of sustainability of water resources,
(d)  the promotion of production and use of recycled water,
(e)  the promotion of policies set out in any prescribed water policy document,
(f)  the potential for adverse financial implications for small retail customers generally arising from the activities proposed to be covered by the licence,
(g)  the promotion of the equitable sharing among participants in the drinking water market of the costs of water industry infrastructure that significantly contributes to water security.
(2)  This section does not restrict the matters to which regard may be had in considering the matters referred to in subsection (1).
(3)  In this section:

prescribed water policy document means a plan or other policy document concerning the use of water resources issued by or on behalf of the Government that is prescribed by the regulations (whether as in force at a particular time or from time to time).

Division 2 Procedure for obtaining licences

8   Applications for licences

(1)  An application for a licence may only be made by or on behalf of a corporation.
(2)  Such an application:
(a)  must be in such form as the Minister may approve, and
(b)  must be accompanied by such fee as the Minister may determine, and
(c)  must be lodged at the office of IPART.

9   Consideration of applications by IPART

(1)  On receiving an application for a licence, IPART:
(a)  must furnish a copy of the application to the Minister, and
(b)  must furnish copies of the application to, and invite submissions on the application from:
(i)  the Minister administering the Public Health Act 2010, and
(ii)  the Minister administering Chapter 2 of the Water Management Act 2000, and
(iii)  such other persons as are prescribed by the regulations, and
(c)  must invite submissions on the application from the public.
(2)  After considering the application and any such submissions, IPART must furnish a report on the application to the Minister.
(3)  Such a report must include recommendations as to whether or not a licence should be granted and as to the conditions (if any) to which a licence (if granted) should be subject.

10   Determination of applications

(1)  The Minister may determine an application for a licence by granting a licence or by refusing the application.
(2)  The Minister must consider, but is not bound to accept, any advice or recommendation in IPART’s report on the application and may, if circumstances so require, seek further advice from IPART in relation to the application.
(3)  A licence may not be granted to:
(a)  a disqualified corporation, or
(b)  a corporation that is a related entity (within the meaning of the Corporations Act 2001 of the Commonwealth) of a disqualified corporation, but only if the disqualified corporation would have a direct or indirect interest in, or influence on, the carrying out of the activities that the licence would authorise if granted.
(4)  A licence may not be granted unless the Minister is satisfied as to each of the following:
(a)  that the applicant has, and will continue to have, the capacity (including technical, financial and organisational capacity) to carry out the activities that the licence (if granted) would authorise,
(b)  that the applicant has the capacity to carry out those activities in a manner that does not present a risk to public health,
(c)  that the applicant has made, and will continue to maintain, appropriate arrangements with respect to insurance,
(d)  in the case of an application for a licence to supply water, that, if such a licence is granted, sufficient quantities of the water supplied by the licensee will have been obtained otherwise than from a public water utility,
(e)  such matters as are prescribed by the regulations,
(f)  such other matters as the Minister considers relevant, having regard to the public interest.
(5)  On making a decision under this section, the Minister must cause notice of the decision, and of the reasons for the decision, to be given to IPART.
(6)  On receiving such notice, IPART must cause the information contained in the notice to be made available to the public on IPART’s internet website.

11   Licence to specify authorised activities and area of operations

(1)  A licence must specify the activities that it authorises the licensee to carry out and the area within which it authorises those activities to be carried out.
Note. For example, a licence might authorise the supply of recycled water of a specified quality within a specified area.
(2)  The same land may be within the area of operations of more than one licensee, whether the respective licences relate to the same or different activities.

12   Duration of licences

(1)  A licence remains in force until it is cancelled.
(2)  A licence does not have effect for the purposes of section 5 (1) while it is suspended.
Note. The effect of this subsection is to prohibit the licensee from doing what the licence would otherwise authorise, but without affecting any obligations to which the licensee is subject under this Act, the regulations or the conditions of the licence.

13   Conditions of licences

(1)  A licence is subject to the following conditions:
(a)  such conditions as are imposed on it by this Act or the regulations,
(b)  such other conditions (not inconsistent with those imposed on it by this Act or the regulations) as are imposed on it by the Minister.
(2)  Without limiting any other matter with respect to which the Minister may impose conditions:
(a)  the Minister may impose conditions to ensure that the licensee has, and continues to have, the capacity (including technical, financial and organisational capacity) to carry out the activities authorised by the licence, and
(b)  the Minister may impose conditions requiring the licensee:
(i)  to give and maintain security (in such amount and form as the Minister may determine) for the fulfilment of its obligations under the licence, and
(ii)  to maintain appropriate arrangements with respect to insurance, and
(c)  in the case of a retail supplier’s licence that authorises the licensee to supply drinking water—the Minister may impose conditions on the licence that the Minister is satisfied promote the equitable sharing among public water utilities and licensed retail suppliers of drinking water of the costs of water industry infrastructure that significantly contributes to water security, including (but not limited to) the following:
(i)  a condition requiring the licensee to obtain a specified proportion of the water that it supplies under the authority of its licence by means of specified water industry infrastructure,
(ii)  a condition requiring the licensee to contribute to the costs of specified water industry infrastructure (whether or not it is used to provide the licensee with the water that it is authorised to supply under the licence) calculated in a specified manner and payable to a specified person or persons.
(3)  Without limiting any other matter with respect to which regulations may be made, regulations for the purposes of this section:
(a)  may impose conditions requiring a licensee to implement government policy with respect to social programs for the supply of water and the provision of sewerage services, and
(b)  may make provision for the funding of such programs, whether in whole or in part, from money made available by Parliament for that purpose, including payment of the efficient costs of implementing such programs, and
(c)  in the case of a licence to supply water, may impose conditions with respect to the quantity of water that the licensee may obtain from a public water utility, and
(d)  may make provision for the calculation of contributions for the purpose of the imposition of conditions under subsection (2) (c).
(3A)  Nothing in Part 3 (Access to infrastructure services) limits the power of the Minister to impose conditions under this section.
(4)  In this section, social program for the supply of water and the provision of sewerage services means a program to ensure that those services are available to people in need, including those suffering financial hardship and those living in remote areas, and includes a program for the granting of payment assistance, discounts or rebates.

Division 3 Administration of licences

14   Annual licence fees

(1)  The Minister may require a licensee to pay to the Minister such amount, by way of an annual licence fee, as the Minister may from time to time determine.
(2)  The amount so determined must not exceed the cost of administering this Act, during the year to which the fee relates, in relation to the licensee.
(3)  It is a condition of each licence that the licensee must comply with any requirement under this section.

15   Variation of licence conditions

The Minister may at any time:
(a)  vary the existing conditions of a licence (other than those imposed by this Act or the regulations), or
(b)  impose new conditions on a licence (not inconsistent with those imposed by this Act or the regulations),
either of his or her own motion or on the application of the licensee.

16   Enforcement of licences

(1)  The Minister may, by order, do any one or more of the following in relation to a licensee that contravenes this Act or the regulations or the conditions of the licence:
(a)  the Minister may impose on the licensee a monetary penalty not exceeding:
(i)  $500,000 for the first day on which the contravention occurs, and
(ii)  a further $20,000 for each subsequent day (not exceeding 25 days) on which the contravention continues,
(b)  the Minister may require the licensee to take such action as the Minister considers appropriate in the circumstances, including (for example) requiring the licensee to do any one or more of the following:
(i)  to send specified information to customers,
(ii)  to publish notices containing specified information,
(iii)  to take specified action to rectify the contravention,
(iv)  to take specified action to prevent any future contravention,
(c)  the Minister may cancel the licence,
(d)  the Minister may suspend the licence,
(e)  the Minister may declare that the licensee is a disqualified corporation for the purposes of this Act,
(f)  the Minister may declare that specified persons, being:
(i)  persons who are directors of the licensee or are concerned in the management of the licensee, or
(ii)  persons or classes of persons who are related persons in relation to a person referred to in subparagraph (i),
are disqualified individuals for the purposes of this Act.
(2)  An order under subsection (1) (d), (e) or (f) may be expressed to apply indefinitely, for a specified period of time or for a period of time ending on the occurrence of a specified event or state of affairs.
(3)  The Minister may, by order, cancel or suspend a licence if the licensee becomes a disqualified corporation.
(4)  The Minister’s functions under subsections (1) and (3) may also be exercised by IPART but, in the case of action of the kind referred to in subsection (1) (c), (d), (e) or (f) or (3), only with the concurrence of the Minister.
(5)  Neither IPART nor the Minister may take action under this section for any contravention for which the other has previously taken the same kind of action.
(6)  Nothing in this section prevents a licence from being cancelled or suspended at the request of the licensee.
(7)  IPART has the function of monitoring and reporting to the Minister on compliance by a licensee with the conditions of the licence.

17   Licensees to be notified of proposed action

(1)  Action under section 15 or 16 may not be taken unless:
(a)  notice of the proposed action has been given to:
(i)  the licensee, and
(ii)  such other persons as are prescribed by the regulations, and
(b)  the licensee and each such person has been given a reasonable opportunity to make submissions with respect to the proposed action, and
(c)  the Minister or IPART, as the case requires, has given consideration to any such submissions.
(2)  Subsection (1) (a) (i) does not apply to action taken at the request of the licensee.

18   Emergency directions

(1)  If of the opinion that it is necessary to do so in order to deal with a risk to public health or public safety arising from:
(a)  the construction, maintenance or operation of water industry infrastructure, or
(b)  the supply of water, or the provision of a sewerage service,
the Minister may direct a licensed network operator or licensed retail supplier to take specified action to reduce or eliminate that risk.
(2)  It is a condition of a network operator’s or retail supplier’s licence that the network operator or retail supplier must comply with any direction under this section.
(3)  If the network operator or retail supplier fails to carry out appropriate work in accordance with any such direction, the Minister may arrange for the work to be carried out.
(4)  The cost of carrying out the work may be recovered by the Minister in a court of competent jurisdiction as a debt owed to the Minister by the network operator or retail supplier.
(5)  The Minister’s functions under this section may be exercised by an inspector on the Minister’s behalf without the need for any authority other than that conferred by this subsection.

19   Cancellation of licences in public interest

(1)  The Minister may, by written notice served on the licensee, cancel a licence if the Minister considers the cancellation to be in the public interest.
(2)  Cancellation may be:
(a)  of the Minister’s own motion, or
(b)  on the written recommendation of some other Minister.
(3)  Cancellation may be with respect to the whole or any part of the water industry infrastructure to which the licence relates.
(4)  Cancellation takes effect on and from the day specified in the notice of cancellation.
(5)  In determining when cancellation is to take effect, the Minister is to consider the public interest and, if cancellation arises from the recommendation of some other Minister, that Minister’s reasons for the recommendation.
(6)  A licensee whose licence is cancelled under this section may bring proceedings for compensation in the Supreme Court:
(a)  if cancellation was of the Minister’s own motion, against the Minister, or
(b)  if cancellation was on the written recommendation of some other Minister, against that Minister.
(7)  The Supreme Court is to hear the proceedings and determine whether it is just that compensation be paid to the plaintiff by reason of the cancellation.
(8)  If the Supreme Court determines that it is just that such a payment be made, the Supreme Court must determine the amount of the payment and give judgment accordingly.

20   Register of licences

(1)  IPART is to maintain a register of licences.
(2)  The regulations may make provision with respect to the manner and form in which the register is to be kept and the nature of the information to be included in the register.
(3)  IPART must keep the register available for inspection by members of the public, free of charge, during normal office hours.
(4)  It is sufficient compliance with subsection (3) if a copy of the register is made available to the public on IPART’s internet website.
(5)  Copies of entries in the register are to be made available to members of the public, at cost, during normal office hours.
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