Water Industry Competition Act 2006 No 104
Historical version for 10 December 2008 to 12 May 2009 (accessed 18 December 2014 at 23:30) Current version
Part 5

Part 5 Operation of water retail market

Division 1 Resolution of disputes between small retail customers and licensed retail suppliers

47   Internal review of certain decisions disputed by small retail customers

(1)  A small retail customer may apply to a licensed retail supplier for a review of the retail supplier’s decision in relation to any matter arising under a water supply or sewerage service contract or any other matter prescribed by the regulations for the purposes of this subsection.
(2)  The regulations:
(a)  may establish the procedures for making an application and for dealing with an application, and
(b)  may impose conditions on retail suppliers’ licences relating to the provision and implementation of procedures for dealing with an application, and
(c)  may treat a failure to make a decision within a specified period as a decision of a particular kind.
(3)  An application is to be made and dealt with free of charge to the applicant.

48   Review of decisions under approved ombudsman scheme

(1)  A small retail customer, and any other person of a class prescribed by the regulations, may apply to the ombudsman for review of a decision in a dispute or complaint to which the scheme relates.
(2)  Except as provided by the scheme or by the regulations, a person does not have a right of review under this section in respect of a decision for which a review may be sought under section 47 unless the decision has been the subject of review under that section.
(3)  A review under this section is to be free of charge to small retail customers and to other persons of such classes as are prescribed by the regulations.
(4)  This section does not limit or otherwise affect the jurisdiction of the Consumer, Trader and Tenancy Tribunal.
(5)  The ombudsman may decline to deal with a matter if it has been, is being or should be dealt with by another person or tribunal or there are, in the ombudsman’s opinion, not sufficient grounds for further investigation.
(6)  Without limiting subsection (5), the ombudsman may deal with a matter by making arrangements for it to be referred to another person or tribunal.

49   Approved ombudsman scheme

(1)  The Minister may approve an ombudsman scheme for the purposes of this Act, being a scheme that provides for the appointment of an ombudsman to deal with:
(a)  disputes and complaints under water supply or sewerage service contracts entered into with small retail customers, and
(b)  any other disputes and complaints of such classes (whether or not under water supply or sewerage service contracts referred to in paragraph (a)) as are prescribed by the regulations.
(2)  Before approving such a scheme, the Minister must be satisfied that the scheme meets the following objectives:
(a)  that all licensed retail suppliers that are required to be members of the scheme are members of the scheme, have agreed to be bound by decisions of the ombudsman under the scheme and, as members, are so bound,
(b)  that the scheme has satisfactory arrangements in place to deal with all disputes and complaints referred to in subsection (1),
(c)  that the ombudsman will be able to operate independently of all licensed retail suppliers in exercising functions under the scheme,
(d)  that the scheme will be accessible to small retail customers and other persons prescribed by the regulations,
(e)  that membership of the scheme will be accessible to all potential members and will provide appropriate representation for all members in relation to the scheme’s governing body,
(f)  that, without limiting any other application of the scheme, the scheme will apply to all disputes and complaints arising under water supply or sewerage service contracts,
(g)  that the scheme will operate expeditiously and without cost to small retail customers and to other persons of such classes as are prescribed by the regulations,
(h)  that the scheme will allow small retail customers to choose whether or not they wish to be bound by determinations under the scheme,
(i)  that the scheme will satisfy best practice benchmarks for schemes of a similar kind, both in terms of its constitution and procedure and in terms of its day to day operations,
(j)  that the scheme will provide for a monetary limit on claims covered by the scheme of an amount or amounts approved by the Minister,
(k)  that the scheme will maintain the capacity of the ombudsman, where appropriate, to refer disputes or complaints to other forums,
(l)  that the scheme will require the ombudsman to inform the Minister of substantial breaches of this Act or the regulations, or the conditions of a licence, of which the ombudsman becomes aware,
(m)  such other objectives as are prescribed by the regulations.
(3)  A scheme may treat a failure to make a decision within a specified period as a decision of a particular kind.
(4)  The Minister may at any time revoke an approval under this section.
(5)  If the regulations prescribe a dispute or complaint involving a person other than a licensed retail supplier as a dispute or complaint to which an approved scheme may apply, the regulations may make it an offence for the person to fail to comply with a decision of the ombudsman under the scheme.
(6)  Notice of any approval given by the Minister under this section, and of the revocation of any such approval, is to be published in the Gazette.
(7)  Subject to this section, the same scheme may be approved for the purposes of both this Act and any other Act or law.

50   Licence conditions relating to approved ombudsman scheme

It is a condition of a retail supplier’s licence under which a licensed retail supplier supplies water to small retail customers that:
(a)  the retail supplier must be a member of an approved ombudsman scheme, and
(b)  the retail supplier is bound by, and must comply with, any decision of the ombudsman under the scheme relating to a dispute or complaint involving the retail supplier and a small retail customer.

Division 2 Monopoly suppliers

51   Declaration of monopoly suppliers

(1)  The Minister may, by order published in the Gazette, declare that a specified licensed retail supplier or licensed network operator is a monopoly supplier in relation to:
(a)  a specified water supply or sewerage service, and
(b)  a specified area, and
(c)  a specified class of customers.
(2)  Such a declaration may only be made in relation to a service if the Minister is satisfied:
(a)  that it is a service:
(i)  for which there are no other suppliers to provide competition in the part of the market concerned, and
(ii)  for which there is no contestable market by potential suppliers in the short term in that part of the market, and
(b)  in the case of a water supply service for recycled water, that connection of land to that service is required by or under some other Act,
and must be revoked if the Minister ceases to be satisfied as to any of those matters.

52   Pricing determinations for monopoly services

(1)  The Minister may refer either or both of the following matters to IPART for investigation and report:
(a)  the determination of the pricing for any service in respect of which a declaration is in force under section 51,
(b)  a periodic review of pricing policies in respect of any such service.
(2)  The provisions of Part 3 of the Independent Pricing and Regulatory Tribunal Act 1992 in relation to government monopoly services apply to and in respect of a matter referred to IPART under this section in the same way as they apply to and in respect of a matter referred to IPART under section 12 of that Act.
(3)  It is a condition of any licence held by a monopoly supplier that the supplier must comply with IPART’s determination in relation to a matter so referred.

53   Obligations of monopoly suppliers

(1)  It is a condition of a licence held by a monopoly supplier for any water supply or sewerage service that the supplier must, in accordance with the declaration for that service, supply that service to any eligible premises to which the owner of the premises requests the supplier to provide that service.
(2)  In this section, eligible premises, in relation to a water supply or sewerage service, means premises to which water industry infrastructure by means of which the service is provided is available.

Division 3 Retailers of last resort

54   Declaration of retailers of last resort

The Minister may, by order published in the Gazette, declare that a specified person (whether a licensed retail supplier or a public water utility) is the retailer of last resort in relation to the supply of water or the provision of sewerage services within the whole or any specified part of its area of operations.

55   Preparation of contingency plans

(1)  As soon as practicable after a person becomes a retailer of last resort, the person must, in accordance with the regulations, submit for the Minister’s approval a contingency plan setting out the arrangements that are in place to ensure that it can meet its obligations as a retailer of last resort.
(2)  The Minister may approve a contingency plan as submitted, or may require the retailer of last resort to amend it and resubmit it for approval.
(3)  A contingency plan may only be varied with the consent of the Minister.
(4)  In the case of a retailer of last resort that is a licensed retail supplier:
(a)  submission of a contingency plan in accordance with subsection (1), and
(b)  maintenance of the arrangements set out in its contingency plan,
are conditions of the retail supplier’s licence.

56   Minister may declare supply failure

(1)  The Minister may, by order in writing served on:
(a)  a licensed retail supplier, and
(b)  the relevant retailer of last resort,
declare a supply failure in relation to the licensed retail supplier.
(2)  Such an order may not be given except in such circumstances as are prescribed by the regulations.

57   Effect of declaration of supply failure

(1)  Subject to the regulations and the terms of the order:
(a)  the licensed retail supplier, on being served with such an order, must cease supplying water or providing sewerage services to those customers specified by the order, and
(b)  a retailer of last resort, on being served with such an order, must commence supplying water or providing sewerage services to such of those customers as are within the area in respect of which it is the retailer of last resort, and
(c)  those customers become, in relation to the supply of water or the provision of sewerage services, the customers of the relevant retailer of last resort.
(2)  In the case of a retailer of last resort that is a licensed retail supplier, compliance with such an order is a condition of the retail supplier’s licence.
(3)  Each such customer and the relevant retailer of last resort are taken to have entered into a special circumstances contract in such terms as are prescribed by the regulations for the purposes of this section.
(4)  Subsection (3) does not apply in circumstances in which section 36 (4) of the Hunter Water Act 1991, section 553A (2) of the Local Government Act 1993 or section 55 (3B) of the Sydney Water Act 1994 applies.
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