2014
2014
2015-01-01
act
government
publicgeneral
act.reprint
allinforce
2014-10-16
2014-10-16
0
2014
none
act-2014-074
6d19da81-0d6c-49ff-beba-e06efc69fba3
94993eee-ac4f-4e56-986d-8b37aa231605
Note—
Amending provisions are subject to automatic
repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to provide for State Water Corporation to
become Water NSW and to abolish the Sydney Catchment Authority and transfer
its functions to Water NSW; and to repeal and amend certain legislation
consequentially.
Part 1Preliminary
1Name of
Act
This Act is the Water NSW Act
2014.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
(1)
In this Act:
area of
operations of Water NSW—see section 15.
assets—see clause 2 (1) of
Schedule 1.
authorised officer means a person
who has been appointed as an authorised officer under this Act.
board means the board of directors
of Water NSW.
catchment
audit means an audit conducted under section
42.
catchment
health, in relation to a declared catchment area, means the
condition of ecosystems and systems of management (such as sewerage and
stormwater systems) in that catchment that protect water
quality.
catchment
infrastructure works means:
(a)
water storages, water mains, or connected or
associated works, or
(b)
monitoring devices in, under, over or near any
works referred to in paragraph (a), or
(c)
any works ancillary or antecedent to any works
referred to in paragraph (a) or (b), or
(d)
hydro-electric plants or associated
infrastructure or works,
and includes anything prescribed by the regulations as
being within this definition, but excludes anything prescribed by the
regulations as being outside this definition.
catchment
management means the management of land and water resources
in a declared catchment area.
chief
executive officer means the chief executive officer of Water
NSW.
controlled area means an area of
land for the time being declared under this Act to be a controlled
area.
county
council means a county council under the Local Government Act
1993.
declared
catchment area means an area of land for the time being
declared under this Act to be a declared catchment area.
Department means the Department of
Trade and Investment, Regional Infrastructure and Services.
Fish
River water supply scheme means the water management work
comprising the concrete dam on Fish River at Oberon and Duckmaloi Weir,
together with:
(a)
its associated gravitation main, concrete
reservoirs, reticulation systems and treatment works, and
(b)
the pumping station at Oberon,
and
(c)
all incidental and connected works,
and
(d)
all additions, amplifications, improvements and
extensions to that scheme.
function includes a power, authority
or duty, and exercise a function includes perform
a duty.
IPART means the Independent Pricing
and Regulatory Tribunal established under the Independent
Pricing and Regulatory Tribunal Act 1992.
land includes the following:
(a)
the sea or an arm of the sea,
(b)
a bay, inlet, lagoon, lake or body of water,
whether inland or not and whether tidal or non-tidal,
(c)
a river, stream or watercourse, whether tidal or
non-tidal,
(d)
a building erected on the
land.
lease includes a licence or
permit.
liabilities—see clause 2 (1)
of Schedule 1.
listed
functions of Water NSW—see section 7
(1).
Ministerial Corporation means the
Water Administration Ministerial Corporation constituted by the Water Management Act
2000.
motor
vehicle means any motor car, motor cycle or other vehicle
propelled by any means other than human or animal power.
operating
licence means an operating licence granted under this Act or
any renewal of it.
operational audit means an
operational audit of Water NSW that is required to be prepared under an
operating licence.
owner, in relation to land, includes
every person who jointly or severally at law or in equity:
(a)
is entitled to the land for an estate of freehold
in possession, or
(b)
is a person to whom the Crown has contracted to
sell the land under the Crown Lands Act
1989 or any other Act relating to alienation of land of
the Crown, or
(c)
is entitled to receive, or receives, or if the
land were let to a tenant would receive, the rents and profits of the land,
whether as beneficial owner, trustee, mortgagee in possession or
otherwise,
and, in relation to land of the Crown, means the Crown,
but does not include a person who, or a class of persons that, is declared by
the regulations as being outside this definition, either generally or in a
particular case or class of cases.
public
authority includes a corporation that is incorporated by or
under an Act, but does not include:
(a)
a company within the meaning of the Corporations
Act 2001 of the Commonwealth, or
(b)
a co-operative within the meaning of the Co-operatives
National Law (NSW), or
(c)
an association incorporated under the Associations Incorporation Act 2009,
or
(d)
a body prescribed by the regulations as not being
a public authority for the purposes of this
definition.
Regulatory Authority—see
section 61.
rights—see clause 2 (1) of
Schedule 1.
special
area means an area of land for the time being declared under
this Act to be a special area.
specified includes referred
to.
State
Water Corporation means State Water Corporation as
constituted by the State Water Corporation Act
2004 immediately before the repeal of that Act by this
Act.
Sydney
catchment area means the declared catchment area known as
the Sydney catchment area referred to in clause 17 of Schedule 2, as declared
from time to time under this Act.
water
storages means dam walls, pumps and other works used for or
with respect to the extraction, and storage, of:
(a)
water in rivers and lakes,
and
(b)
water occurring naturally on the surface of the
ground, and
(c)
sub-surface waters.
works, in relation to Water NSW,
includes:
(a)
any catchment infrastructure works, metering
equipment, water storages and other water management works vested in or under
the control of Water NSW, and
(b)
any other assets of Water NSW of a kind
prescribed by the regulations.
(2)
In this Act, each of the following terms and
expressions has the same meaning as in the Water Management
Act 2000:
estuary
lake
metering
equipment
river
water
management work
water
source
water
supply authority
(3)
Subject to subsections (1) and (2), words and
expressions used in this Act have the same meanings as they have in the
State Owned Corporations Act
1989.
(4)
Notes included in this Act do not form part of
this Act.
Part 2Constitution and functions of
Water NSW
Division 1Constitution of Water
NSW
4Constitution of Water
NSW
(1)
State Water Corporation continues in existence as
a corporation constituted by this Act, but with the new corporate name of
Water NSW.
(2)
Accordingly, Water NSW is taken for all purposes
(including the rules of private international law) to be a continuation of,
and the same legal entity as, State Water Corporation.
Note—
Schedule 3 to this Act, as originally enacted,
amended the State Owned Corporations Act
1989 to provide for Water NSW to continue to be a
statutory State owned corporation.
The State Owned
Corporations Act 1989 contains a number of provisions that
will apply to Water NSW as a statutory State owned corporation. In
particular:
(a)
Part 3 contains provisions relating to the status
of Water NSW, the application of the Corporations Act
2001 of the Commonwealth, the issue of shares to the
Treasurer and another Minister, the board of directors, the chief executive
officer, the employment of staff, the giving of directions by the portfolio
Minister (including directions for the performance of non-commercial
activities or the carrying out of public sector policies), the constitution of
Water NSW, dividends and tax-equivalent payments, government guarantees, the
sale or disposal of assets and the legal capacity and general powers of Water
NSW, and
(b)
Part 4 deals with the accountability of Water NSW
(including statements of corporate intent, annual reports and accounts),
and
(c)
Part 5 deals with miscellaneous matters
(including the duties and liabilities of directors and the application of
public sector legislation).
5Foundation charter of Water
NSW
(1)
For the purposes of the State
Owned Corporations Act 1989, the foundation charter of
Water NSW is this Part (but not the remainder of this Act).
Note—
Section 3 of the State Owned
Corporations Act 1989 defines the foundation charter of a
statutory State owned corporation (SOC) as the whole of any Act by
which a SOC is established for the purposes of the State
Owned Corporations Act 1989 and, in particular, for the
purpose of the provisions relating to the legal capacity of statutory SOCs and
assumptions that they have complied with that Act and their foundation
charter.
(2)
Nothing in this section limits the operation of
section 4.
Division 2Objectives and functions of
Water NSW
6Objectives of Water
NSW
(1)
The principal objectives of Water NSW are:
(a)
to capture, store and release water in an
efficient, effective, safe and financially responsible manner,
and
(b)
to supply water in compliance with appropriate
standards of quality, and
(c)
to ensure that declared catchment areas and water
management works in such areas are managed and protected so as to promote
water quality, the protection of public health and public safety, and the
protection of the environment, and
(d)
to provide for the planning, design, modelling
and construction of water storages and other water management works,
and
(e)
to maintain and operate the works of Water NSW
efficiently and economically and in accordance with sound commercial
principles.
(2)
The other objectives of Water NSW are as
follows:
(a)
to be a successful business and, to that
end:
(i)
to operate at least as efficiently as any
comparable business, and
(ii)
to maximise the net worth of the State’s
investment in Water NSW,
(b)
to exhibit a sense of social responsibility by
having regard to the interests of the community in which it
operates,
(c)
to exhibit a sense of responsibility towards
regional development and decentralisation in the way in which it
operates,
(d)
where its activities affect the environment, to
conduct its operations in compliance with the principles of ecologically
sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act
1991.
(3)
The other objectives of Water NSW are of equal
importance, but are not as important as the principal objectives of Water
NSW.
(4)
Section 20E of the State
Owned Corporations Act 1989 does not apply to Water
NSW.
(5)
Nothing in this section gives rise to, or can be
taken into account in, any civil cause of action.
7Functions of Water
NSW
(1)
For the purposes of this Act, the listed functions of Water NSW are as
follows:
(a)
to capture and store water and to release
water:
(i)
to persons entitled to take the water, including
release to regional towns, and
(ii)
for any other lawful purpose, including the
release of environmental water,
(b)
to supply water to the Sydney Water
Corporation,
(c)
to supply water to water supply authorities and
to local councils or county councils prescribed by the
regulations,
(d)
to supply water to licensed network operators or
licensed retail suppliers within the meaning of the Water
Industry Competition Act 2006,
(e)
to supply water to other persons and bodies, but
under terms and conditions that prevent the person or body concerned from
supplying the water for consumption by others within the State unless the
person or body is authorised to do so by or under an Act,
(f)
to construct, maintain and operate water
management works (including providing or constructing systems or services for
supplying water),
(g)
to protect and enhance the quality and quantity
of water in declared catchment areas,
(h)
to manage and protect declared catchment areas
and water management works vested in or under the control of Water NSW that
are used within or for the purposes of such areas,
(i)
to undertake flood mitigation and
management,
(j)
to undertake research on catchments generally,
and in particular on the health of declared catchment
areas,
(k)
to undertake an educative role within the
community.
(2)
Water NSW may:
(a)
provide facilities or services that are
necessary, ancillary or incidental to its listed functions,
and
(b)
conduct any business or activity (whether or not
related to its listed functions) that it considers will further its
objectives.
(3)
However, the listed functions of Water NSW and
its functions under subsection (2):
(a)
may only be exercised under the authority of, and
in accordance with, one or more operating licences, and
(b)
are subject to any applicable requirements under
the Water Management Act 2000 or the Water Act
1912.
(4)
Water NSW also has such other functions as may be
conferred or imposed on it:
(a)
by or under another provision of this Act,
or
(b)
by or under any other Act or law,
or
(c)
by an operating
licence.
(5)
Nothing in this Act requires the authorisation of
an operating licence for the exercise of a function that is conferred or
imposed on Water NSW by or under another provision of this Act or by or under
any other Act or law.
Division 3Management of Water
NSW
8Board of directors of Water
NSW
(1)
The board of directors of Water NSW is to consist
of not fewer than 3, and not more than 8, directors appointed by the voting
shareholders.
(2)
The voting shareholders are to consult with the
portfolio Minister on the persons recommended for appointment as
directors.
(3)
The person for the time being holding office as
chief executive officer of Water NSW is to be a director of the
board.
(4)
Schedule 8 to the State Owned
Corporations Act 1989 and section 20J (subsections (2) and
(5) excepted) of that Act apply with respect to the
board.
(5)
The persons appointed as directors are, between
them, to have the necessary expertise, skills and knowledge that will enable
Water NSW to meet its objectives.
9Chief executive
officer
(1)
The chief executive officer of Water NSW is to be
appointed by the board after consultation with the voting shareholders and the
portfolio Minister.
(2)
The board may remove a person from office as
chief executive officer, at any time, for any or no reason and without notice,
but only after consultation with the voting shareholders and the portfolio
Minister.
(3)
The chief executive officer is entitled to be
paid such remuneration (including travelling and subsistence allowances) as
the board may determine after consultation with the voting
shareholders.
(4)
The board may, after consultation with the voting
shareholders and the portfolio Minister, fix the conditions of employment of
the chief executive officer in so far as they are not fixed by or under any
other Act or law.
(5)
The Government Sector
Employment Act 2013 (Part 6 included) does not apply to
the chief executive officer.
(6)
Clauses 1 and 4 of Schedule 9 to the State Owned Corporations Act 1989 have
effect with respect to the chief executive officer.
(7)
The provisions of section 20K (2) and (4) of the
State Owned Corporations Act 1989 do not
apply to the chief executive officer.
(8)
The provisions of this section are in addition
to, and (except to the extent to which this section provides) do not derogate
from, the provisions of the State Owned
Corporations Act 1989.
10Acting chief executive
officer
(1)
The board may, from time to time, appoint a
person to act in the office of chief executive officer during the illness or
absence of the chief executive officer.
(2)
The board may remove a person from office as
acting chief executive officer, at any time, for any or no reason and without
notice.
(3)
A person, while acting in the office of chief
executive officer:
(a)
has all the functions of the chief executive
officer and is taken to be the chief executive officer,
and
(b)
is entitled to be paid such remuneration
(including travelling and subsistence allowances) as the board may
determine.
(4)
For the purposes of this section, a vacancy in
the office of chief executive officer is regarded as an absence from office of
the chief executive officer.
(5)
The board is not to appoint a person to act in
the office of chief executive officer during any vacancy in that office
without the concurrence of the voting shareholders and the portfolio
Minister.
(6)
The provisions of this section are in addition
to, and (except to the extent to which this section provides) do not derogate
from, the provisions of the State Owned
Corporations Act 1989.
Division 4Operating
licences
11Grant of operating
licences
(1)
The Governor may, on the recommendation of the
portfolio Minister, grant one or more operating licences to Water NSW to
authorise it, in accordance with this Act, to carry out the listed functions
specified in the licence, and such other functions as may be conferred or
imposed on it by the licence, in the areas and circumstances (if any)
specified in the licence.
Note—
Section 7 (5) provides that nothing in this Act
requires the authorisation of an operating licence for the exercise of a
function that is conferred or imposed on Water NSW by or under a provision of
this Act (other than section 7) or by or under any other Act or
law.
(2)
If Water NSW is granted more than one operating
licence, each operating licence must specify the functions to which it relates
and the areas or circumstances (or both) in which those functions may be
exercised under the authority of that licence.
(3)
Except to the extent to which this Act expressly
provides, nothing in an operating licence limits the requirements imposed by
or under any other Act or law with respect to the functions referred to in
subsection (1).
(4)
In this section, listed functions of Water NSW
include functions under section 7 (2).
12Terms and conditions of
operating licence
(1)
Subject to subsection (2), an operating licence
is subject to the terms and conditions determined by the Governor on the
recommendation of the portfolio Minister.
(2)
The operating licence must include terms or
conditions under which Water NSW is required:
(a)
in connection with an operating licence that
authorises Water NSW to capture, store, release or supply water:
(i)
to provide, construct, operate, manage and
maintain efficient, co-ordinated and commercially viable systems and services
to capture, store, release or supply water, and
(ii)
to ensure that the systems and services meet the
performance standards specified in the operating licence in relation to water
delivery, water quality, service interruptions or any other matters set out in
the operating licence, and
(b)
in connection with an operating licence that
authorises Water NSW to exercise functions with respect to a declared
catchment area—to compile indicators of the direct impact of Water
NSW’s activities (including, but not limited to, the impact of energy
used and waste generated) on the environment so as to provide information
about its performance and enable reports to be
prepared.
Note—
In the case where Water NSW has been granted more
than one operating licence, section 11 (2) also requires each operating
licence to specify the functions of Water NSW to which the licence relates and
the areas or circumstances (or both) in which those functions may be exercised
under the authority of that licence.
(3)
The terms and conditions of an operating licence
are to make provision for the preparation of operational audits by
IPART.
(4)
The terms and conditions of an operating licence
may confer on Water NSW any specified functions of:
(a)
the Minister administering the Water Management Act 2000 under that Act
or the Water Act 1912,
or
(b)
the Ministerial Corporation under any Act or
law.
(5)
A function is not to be conferred under
subsection (4) unless the Minister administering the Water
Management Act 2000 or the Premier provides his or her
concurrence to the conferral of the function.
(6)
A function of the Minister referred to in
subsection (4) (a) or of the Ministerial Corporation conferred on Water NSW
under subsection (4) may also be exercised by the Minister or the Ministerial
Corporation (as the case requires) despite that conferral. However, a function
may be conferred exclusively on Water NSW if the Minister administering the
Water Management Act 2000 or the Premier
provides his or her concurrence to the exclusive conferral of the
function.
(7)
The conferral of functions under subsection (4)
has effect according to its tenor.
13Amendment of operating
licence
(1)
The Governor, on the recommendation of the
portfolio Minister, may:
(a)
amend an operating licence (including by adding,
altering or omitting functions authorised by the licence or areas or
circumstances in which such functions may be exercised under the authority of
the licence), or
(b)
substitute an operating licence,
or
(c)
impose, amend or revoke conditions of the
operating licence.
(2)
The portfolio Minister is to consult with Water
NSW before making a recommendation to the Governor under subsection
(1).
14Term of operating
licence
(1)
The term of an operating licence is to be for a
maximum of 5 years, as determined by the Governor.
(2)
The Governor may renew an operating licence,
subject to subsection (1).
(3)
An operating licence may be renewed even if its
term has expired.
15Area of operations of Water
NSW
(1)
The area of operations of Water NSW is the whole
of the State.
(2)
However, nothing in this Act authorises or
requires Water NSW to exercise any of the following functions except as
provided by this section:
(a)
a function that is conferred or imposed on the
Sydney Water Corporation by or under the Sydney Water Act
1994 with respect to its area of
operations,
(b)
a function that is conferred or imposed on the
Hunter Water Corporation by or under the Hunter Water Act
1991 with respect to its area of operations under that
Act,
(c)
a function that is conferred or imposed on a
water supply authority by or under the Water Management
Act 2000 with respect to the area of operations prescribed
for it by regulations made under section 289 (1) of that
Act.
(3)
Subsection (2) (c) does not limit the functions
of Water NSW in its capacity as a water supply authority in relation to the
Fish River water supply scheme.
(4)
Despite subsections (1) and (2), an operating
licence may authorise Water NSW:
(a)
to carry out any of its functions outside of the
State, or
(b)
to exercise a function referred to in subsection
(2), but only with the agreement of the Corporation or water supply authority
concerned (the relevant
body).
(5)
If Water NSW is authorised by an operating
licence to exercise any functions of the kind referred to in subsection (4)
(b), Water NSW is to obtain the agreement of each relevant body in relation to
the exercise of those functions.
(6)
Nothing in this section affects the area of
operations of the Sydney Water Corporation or Hunter Water Corporation or any
water supply authority.
16Contravention of operating
licence
(1)
If, in the opinion of the portfolio Minister,
Water NSW contravenes an operating licence, the portfolio Minister may cause a
notice to be served on Water NSW requiring it to rectify the contravention
within a specified period.
(2)
If, in the opinion of the portfolio Minister,
Water NSW contravenes an operating licence, and whether or not a notice has
been served under subsection (1) or the period specified in the notice has
ended, the Governor may direct that Water NSW is to pay a monetary penalty of
an amount to be determined by the Governor.
(3)
The fact that the Governor has directed that
action be taken under this section does not prevent the Governor directing
that the same or other action under this section be taken if the contravention
continues or a fresh contravention occurs.
(4)
An operating licence may make provision for
advice to be provided to the portfolio Minister in connection with the
exercise of the portfolio Minister’s functions under this
section.
(5)
A penalty imposed under this section may be
recovered in any court of competent jurisdiction as if it were a debt due to
the State.
17Contravention of operating
licence: action by IPART
(1)
IPART may impose a monetary penalty on Water NSW
if Water NSW contravenes an operating licence.
(2)
IPART may, instead of imposing a monetary
penalty, require Water NSW to take such action as IPART considers appropriate
in the circumstances, including (for example) requiring the sending of
information to customers or the publication of notices in
newspapers.
(3)
IPART may not require action to be taken under
subsection (2) by Water NSW if the cost of that action would exceed the
monetary penalty that IPART could impose under this section on Water
NSW.
(4)
If IPART requires information to be sent to a
customer under subsection (2), Water NSW may satisfy that requirement by
sending the information to the customer with the next account or bill to be
sent to the customer by Water NSW or, if Water NSW is sending other
information to that customer before the next account or bill, with that other
information.
(5)
Action may be taken under this section only if
Water NSW has knowingly contravened an operating
licence.
(6)
The monetary penalty that IPART may impose under
this section must not exceed $10,000 for the first day on which the
contravention concerned occurs and a further $1,000 for each subsequent day
(not exceeding 30 days) on which the contravention
continues.
(7)
IPART must not take action under this section
unless:
(a)
IPART has:
(i)
considered whether the contravention has been or
is likely to be the subject of any other penalty or action or any claim for
compensation, and is satisfied that it is nevertheless appropriate to take
action under this section, and
(ii)
considered the action that Water NSW has taken or
is likely to take in respect of the contravention and the cost to Water NSW in
taking that action, and is satisfied that it is nevertheless appropriate to
take action under this section, and
(b)
each of the following procedures have been
followed:
(i)
notice of the proposed action has been given to
Water NSW,
(ii)
Water NSW has been given a reasonable opportunity
to make submissions with respect to the proposed action,
(iii)
IPART has given due consideration to any such
submissions.
(8)
IPART is required to consider the seriousness of
the contravention concerned in determining whether to impose a monetary
penalty under this section.
(9)
IPART must not take action under this section in
respect of a contravention if any action has already been taken under section
16 in respect of the contravention.
(10)
Nothing in this section affects any powers under
section 16 in respect of a contravention, whether or not IPART has already
taken action under this section in respect of the
contravention.
(11)
A penalty imposed under this section may be
recovered in any court of competent jurisdiction as if it were a debt due to
the State.
18Administrative review of
certain decisions of IPART concerning operating licence
(1)
Water NSW, if aggrieved by a decision of IPART to
take action under section 17 in relation to Water NSW, may apply to the Civil
and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act
1997 of the decision.
(2)
Section 53 (Internal reviews) of the Administrative Decisions Review Act
1997 does not apply to such a decision of
IPART.
19Cancellation of operating
licence
(1)
An operating licence of Water NSW may be
cancelled only in the circumstances specified by this
section.
(2)
The Governor may cancel an operating licence of
Water NSW if Water NSW ceases, otherwise than as authorised by the operating
licence, to carry out the functions of Water NSW to which the licence relates
in accordance with the operating licence for any reason.
(3)
The Governor may cancel any or all of the
operating licences of Water NSW if:
(a)
Water NSW:
(i)
is, in the opinion of the portfolio Minister, in
material default in complying with any operating licence, viewed in terms of
the operation of the operating licence as a whole, and
(ii)
has not, within the time specified by the
portfolio Minister in a notice to Water NSW, either rectified the default or
shown cause, to the satisfaction of the portfolio Minister, why the operating
licence should not be cancelled, or
(b)
Water NSW has been convicted on more than 3
occasions within a period of 12 months of offences that are punishable by a
fine of at least $10,000 or, if Water NSW were a natural person, imprisonment
for 12 months or more.
(4)
A notice under section 16 (1) can also be
regarded as a notice for the purposes of subsection (3) (a)
(ii).
(5)
If an operating licence is cancelled under this
section, the Governor may, by order published in the Gazette, transfer to the
Ministerial Corporation, the State or a public or local authority (as
specified in the order), from a date specified in the order, such of the
assets and rights of Water NSW that are specified in the order and that, in
the opinion of the portfolio Minister, are necessary to enable the Ministerial
Corporation, the State or the public or local authority to exercise such of
the functions exercisable (or formerly exercisable) by Water NSW as appear to
be necessary in the public interest.
(6)
An order under this section may provide
for:
(a)
the Ministerial Corporation, the State or a
public or local authority to assume those liabilities of Water NSW that the
Governor considers appropriate and specifies in the order,
or
(b)
the Ministerial Corporation, the State or a
public or local authority to pay the whole or any part of the liabilities of
Water NSW.
(7)
Schedule 1 applies to any transfer of assets,
rights or liabilities under this section.
Division 5Memoranda of
understanding
20Definition
In this Division:
regulatory agencies means:
(a)
the Environment Protection Authority and the
Secretary of the Ministry of Health, and
(b)
the Chief Executive of the Office of Environment
and Heritage, the Secretary of the Department, local councils, county
councils, and any persons, bodies or agencies for the time being nominated by
order of the portfolio Minister communicated to Water
NSW.
21Requirement to enter into
certain memoranda of understanding
(1)
Water NSW is required to enter into memoranda of
understanding respectively with the regulatory agencies referred to in
paragraph (a) of the definition of regulatory agencies in section 20.
The following subsections of this section apply in relation to such a
memorandum of understanding, and do not apply to memoranda of understanding
with other regulatory agencies.
(2)
A memorandum of understanding is to be of the
nature referred to in an operating licence.
(3)
A memorandum of understanding is to be reviewed,
and amended or replaced, at such times and in such circumstances as are agreed
on between Water NSW and the regulatory agency concerned or as are determined
by the portfolio Minister.
(4)
If Water NSW and a regulatory agency are not able
to enter into, or agree on a term of, a memorandum of understanding, the
memorandum is to be entered into in accordance with the procedures determined
by the Premier or is taken to be entered into in such terms as are determined
by the Premier.
22Direction to enter into
certain memoranda of understanding
(1)
The portfolio Minister may, from time to time,
direct Water NSW to enter into memoranda of understanding with such regulatory
agencies referred to in paragraph (b) of the definition of regulatory agencies in section 20 as
the Minister determines. This section does not apply to a memorandum of
understanding referred to in section 21.
(2)
The portfolio Minister may specify the matters to
be dealt with in a memorandum of understanding and the period (not more than 6
months from the date of the direction) within which the memorandum is to be
entered into.
(3)
A memorandum of understanding is to be reviewed,
and amended or replaced, at such times and in such circumstances as are agreed
on between Water NSW and the regulatory agency concerned or as are determined
by the portfolio Minister.
(4)
If Water NSW and a regulatory agency are not able
to enter into, or agree on a term of, a memorandum of understanding, the
memorandum is to be entered into in accordance with the procedures determined
by the Premier or is taken to be entered into in such terms as are determined
by the Premier.
23Public exhibition of memoranda
of understanding
(1)
Water NSW must give notice of the preparation of
each memorandum of understanding to which it is a party.
(2)
The notice is to be given in a newspaper
circulating in the area of operations of Water NSW and must:
(a)
specify the address of the place at which copies
of the memorandum of understanding may be inspected, and
(b)
specify the address to which representations
concerning the memorandum of understanding may be
forwarded.
(3)
Any person may, within 30 days or such longer
period as may be specified in the notice, make representations to Water NSW
and to the regulatory agency concerned about the memorandum of
understanding.
(4)
Water NSW and each regulatory agency must, on the
expiration of the period referred to in subsection (3), and before entering
into the memorandum of understanding, consider any representations made under
this section.
(5)
Notice of the execution of a memorandum of
understanding is to be published in the Gazette and in a newspaper circulating
in the area of operations of Water NSW within 14 days after the
execution.
(6)
The requirements of this section apply to an
amendment to a memorandum of understanding in the same way as they apply to a
memorandum of understanding.
Division 6Arrangements for drawing
water
24Arrangements for drawing water
from certain water storages and pipelines
(1)
This section applies only to:
(a)
water storages and pipelines of Water NSW that
were water storages and pipelines of the Sydney Catchment Authority to which
section 21A of the Sydney Water Catchment Management Act
1998 applied immediately before its repeal,
and
(b)
water storages and pipelines of Water NSW (or
water storages and pipelines of Water NSW of a kind) prescribed by the
regulations.
(2)
Subject to its operating licences, Water NSW has
control over all water in water storages or pipelines to which this section
applies.
(3)
Water in these water storages or pipelines is
available for supply by Water NSW.
(4)
Water NSW may enter into an arrangement with any
person to permit that person to draw or take water from these water storages
or pipelines.
Division 7Arrangements with Sydney Water
Corporation
25Arrangements with Sydney Water
Corporation
(1)
Water NSW is required to enter into arrangements
with the Sydney Water Corporation regarding the supply of water by Water NSW
to the Sydney Water Corporation.
(2)
The matters with which the arrangements are to
deal are to include the following:
(a)
the standard of quality of the water
supplied,
(b)
the continuity of water
supply,
(c)
the maintenance of adequate reserves of water by
Water NSW,
(d)
subject to this Division, the cost to be paid by
the Sydney Water Corporation for the supply of water to
it.
(3)
The arrangements may be amended or replaced from
time to time.
(4)
The Treasurer is to be consulted about the terms
of the arrangements, including amendments and replacements, before their
finalisation.
(5)
The terms of the arrangements, including
amendments and replacements, have no effect unless or until approved by the
portfolio Minister.
(6)
The arrangements are to be reviewed as required
by:
(a)
the terms of the arrangements,
or
(b)
the terms of an operating licence,
or
(c)
the portfolio
Minister.
(7)
The arrangements are to be amended or replaced at
times specified by:
(a)
the terms of the arrangements,
or
(b)
the terms of an operating licence,
or
(c)
the portfolio
Minister.
(8)
The provisions of section 23 (Public exhibition
of memoranda of understanding) apply, with the necessary modifications, to
arrangements under this section in the same way as they apply to memoranda of
understanding.
(9)
Nothing in this Division limits the matters that
may be included in an operating licence or limits the terms of an operating
licence.
26Negotiations
(1)
Water NSW and the Sydney Water Corporation are
required to enter into negotiations for the purpose of entering into, amending
or replacing the arrangements as and when required by or under this
Division.
(2)
If it appears to the Premier that negotiations
are unable to be finalised, the arrangements are to be entered into, amended
or replaced in accordance with the procedures determined by the Premier or are
taken to be entered into, amended or replaced in such terms as are determined
by the Premier.
27Role of IPART with respect to
arrangements
(1)
An arrangement under this Division is not to be
entered into, amended or replaced except after consultation with IPART and
after IPART has provided a report on the proposed arrangement or amendment to
the portfolio Minister, Water NSW and the Sydney Water
Corporation.
(2)
In providing such a report, IPART is to take into
consideration any public submissions made under the provisions applied by
section 25 (8).
(3)
IPART may investigate the adequacy and operation
of the arrangements under this Division at any time, and may provide a report
on any aspect of the arrangements, or their adequacy or operation, to the
portfolio Minister.
(4)
The portfolio Minister is to table the report (or
cause it to be tabled) in both Houses of Parliament within one month after the
Minister receives the report.
(5)
Without limiting the generality of any provisions
of the Independent Pricing and Regulatory
Tribunal Act 1992, the supply of water by Water NSW to the
Sydney Water Corporation is capable of being declared to be a government
monopoly service within the meaning of that Act.
(6)
The provisions of this Division and of the
arrangements have effect subject to the Independent
Pricing and Regulatory Tribunal Act
1992.
Division 8Transfer of assets, rights and
liabilities
28Transfer of specified assets,
rights and liabilities
(1)
The portfolio Minister may, with the concurrence
of the voting shareholders, by order in writing, transfer to Water NSW such of
the assets, rights and liabilities of the Ministerial Corporation, the State
or a public or local authority as are specified or referred to in the
order.
(2)
The portfolio Minister may, with the concurrence
of the voting shareholders, by order in writing, transfer to the Ministerial
Corporation or to any other person or body on behalf of the State such of the
assets, rights and liabilities of Water NSW, as are specified or referred to
in the order.
(3)
The portfolio Minister is not to make an order
under subsection (1) or (2) unless the relevant person or body from whom, or
to whom, the assets, rights or liabilities are to be transferred has consented
to the transfer.
(4)
The fee simple in land that comprises the bed of
any river, lake or estuary is not to be transferred to Water NSW under this
section unless the Minister administering the Crown Lands Act
1989 has been consulted in relation to the
transfer.
(5)
Subsection (4) does not prevent the transfer to
Water NSW of the ownership of any works installed in or on the bed of any
river, lake or estuary.
(6)
An order under this section may be made on such
terms and conditions as are specified in the order.
(7)
Schedule 1 applies to any transfer of assets,
rights or liabilities by an order under this section.
(8)
Section 20C of the State
Owned Corporations Act 1989 does not apply to the transfer
of assets, rights or liabilities to Water NSW.
Part 3Powers of Water
NSW
29Ownership of
works
(1)
Water NSW is the owner of all works installed by,
vested in or transferred to Water NSW in or on any land (including the bed of
any river, lake or estuary) whether or not the land is owned by Water
NSW.
(2)
Water NSW may, subject to this and any other Act
or law and for purposes consistent with its objectives:
(a)
build and install works, and
(b)
operate, repair, replace, maintain, remove,
extend, expand, connect, disconnect, improve or do any other things that are
necessary or appropriate to any of its works, and
(c)
sell, demolish or otherwise deal with any of its
works.
(3)
Part 3 and section 91 (b) and (c) of the Public Works and Procurement Act 1912 do
not apply in respect of works owned by Water NSW.
(4)
The provisions of this section have effect
despite anything contained in section 42 of the Real
Property Act 1900.
30Acquisition of land for
purposes of this Act
(1)
Water NSW may acquire land (including an interest
in land) for the purposes of this Act.
(2)
Other purposes for which land may be acquired
under this section include the purposes of a future sale, lease or disposal,
that is, to enable Water NSW to exercise its functions in relation to land
under this Act.
(3)
Land that Water NSW is authorised to acquire
under this section may be acquired by agreement or by compulsory process in
accordance with the Land Acquisition (Just Terms
Compensation) Act 1991.
(4)
For the purposes of the Public
Works and Procurement Act 1912:
(a)
an acquisition in accordance with this section is
taken to be for an authorised work, and
(b)
Water NSW is, in relation to that work, taken to
be the Constructing Authority, and
(c)
Part 3 and section 91 (b) and (c) of that Act do
not apply in respect of that work.
(5)
Water NSW may not give a proposed acquisition
notice under the Land Acquisition (Just Terms
Compensation) Act 1991 for the purposes of this or any
other Act, without the approval of the portfolio
Minister.
(6)
Any such acquisition is not void merely because
it is expressed to be for the purposes of Water NSW or for the purposes of
this Act.
31Metering equipment
functions
(1)Conferral of
functions
Water NSW may, if an operating licence so
provides, operate, replace, repair, maintain, remove, connect, disconnect or
modify metering equipment that Water NSW does not own.
(2)
Water NSW may from time to time test any metering
equipment that it owns or any other metering equipment in respect of which it
exercises functions under this section.
(3)
The regulations may provide that Water NSW is, or
is not, to exercise any of its functions with respect to the operation,
replacement, repair, maintenance, removal, connection, disconnection or
modification of metering equipment under section 29 or this section to the
exclusion of any other person and may limit the exercise of any of those
functions to:
(a)
specified water sources or classes of water
sources, or
(b)
a specified area, or
(c)
specified access licences or approvals or classes
of access licences or approvals for specified areas, or
(d)
specified works or classes of
works.
(4)Operation of
sections
The functions conferred by section 29 and this
section in respect of metering equipment are in addition to any functions
conferred on Water NSW under the Water Management
Act 2000 or the Water Act
1912 in relation to water management works or other
works.
(5)
The conferral of functions by section 29 and this
section in respect of metering equipment, and any regulations under this
section, have effect despite any other provision of the Water
Management Act 2000 or the Water Act
1912.
(6)
A direction under section 326 of the Water Management Act 2000, or a
condition of an access licence or approval under that Act, ceases to have
effect during any period that the exercise of a function is conferred
exclusively on Water NSW by or under section 29 or this section, if the
direction or condition requires the exercise of, or relates to the exercise
of, that function.
(7)
Subsections (5) and (6) do not apply to a
direction given to Water NSW or an access licence or approval held by Water
NSW.
(8)
Subsection (6) does not affect the operation of,
or enforcement of, a direction under section 326 of the Water
Management Act 2000 or a condition of an access licence or
approval in relation to any period before the direction or condition ceased to
have effect.
(9)
In this section, access licence and approval have the same meanings as
in the Water Management Act
2000 and include an entitlement (within the meaning of
clause 2 of Schedule 10 to that Act) that confers a corresponding
authority.
32Entry on land to read meters
or carry out works
(1)When entry
permitted
Water NSW may, by its employees and agents, enter
and occupy land for any one or more of the following purposes:
(a)
to read any of its metering equipment (including
metering equipment in respect of which Water NSW has functions because of
section 31),
(b)
to operate, repair, replace, maintain, remove,
extend, expand, connect, disconnect, improve or do any other things that Water
NSW considers are necessary or appropriate to any of its
works,
(c)
to construct new works and, for these purposes,
to carry out any work on, below or above the surface of the
land,
(d)
to ascertain the character and condition of the
land to enable Water NSW to operate, repair, replace, maintain, remove,
extend, expand, connect, disconnect or improve, or do any other thing to,
Water NSW’s systems and services for the purposes of carrying out the
terms and conditions of its operating licences,
(e)
if pollution of water is occurring in a declared
catchment area or in water that is captured, stored, released or supplied by
Water NSW—to find the source of the pollution and, for this purpose, to
dig up and remove material from the land,
(f)
in exercise of any of Water NSW’s
functions:
(i)
to divert water from, or alter the course of, a
stream, and
(ii)
to impound or take water on, in or under the
surface of the land.
(2)
The power conferred by subsection (1) (a) is
sufficient authority for an employee or agent to enter and occupy land (except
an enclosed part occupied as a separate dwelling) during daylight unless the
employee or agent is refused access by the lawful occupier of the
land.
(3)
Water NSW may remove or use anything dug up or
obtained in the exercise of its powers under this
section.
(4)
Reasonable force may be used to enter land (but
not a dwelling-house) under this section.
(5)Giving of
notice
Water NSW must not exercise the powers conferred
by subsection (1) (b), (c), (d), (e) or (f) unless:
(a)
reasonable notice in writing of its intention to
do so has first been given to the landholder of the land, building or
dwelling-house, or
(b)
it authorises the entry after forming the opinion
that the giving of the notice would cause undue
delay.
(6)
If the powers of entry under subsection (1) (b),
(c), (d), (e) or (f) are exercised without notice being given or by force,
Water NSW must, without delay, notify such persons as it considers appropriate
of the action taken.
(7)Other powers of
entry
Nothing in this section limits any powers of
entry that Water NSW may have apart from this section (including, without
limitation, any powers it may have under sections 296 and 297 of the Water Management Act 2000 in its
capacity as the water supply authority for the Fish River water supply scheme
or in any other capacity).
33Power to break up
roads
(1)
Water NSW may, on giving reasonable notice to
persons likely to be affected and for the purpose of exercising its functions
under this or any other Act, open and break up:
(a)
the soil and pavement of a public road or public
reserve, and
(b)
any sewer, drain or tunnel in or under a public
road or public reserve.
(2)
The statutory body having the control and
management of a public road or public reserve may, as prescribed by the
regulations, require Water NSW to comply with conditions in exercising its
powers under subsection (1), including conditions for restoration of the
surface and removal of rubbish.
(3)
If a public road or public reserve is damaged by
a leakage from, or a bursting of, Water NSW’s water main, the statutory
body having the control and management of the public road or public reserve
may require Water NSW to make good the damage without
delay.
(4)
If Water NSW fails:
(a)
to comply with a condition in force under
subsection (2), or
(b)
to comply with a requirement under subsection
(3),
the statutory body affected by the failure may remedy it
and recover the cost of doing so in a court of competent jurisdiction as a
debt owed to the statutory body by Water NSW.
34Altering position of
conduits
(1)
Water NSW may serve on a person a notice in
writing that complies with subsection (2) if:
(a)
Water NSW, in order to exercise its functions,
needs an alteration to be made in the position of a conduit owned by the
person, and
(b)
the alteration would not permanently damage the
conduit or adversely affect its operation.
(2)
A notice must:
(a)
specify the alteration needed,
and
(b)
require the alteration to be made within a
reasonable time stated in the notice, and
(c)
include an undertaking by Water NSW to pay the
reasonable cost of the alteration.
(3)
If the alteration is not made as required by the
notice, Water NSW may make the alteration in such a manner as not to damage
the conduit permanently or adversely affect its operation on completion of the
alteration.
(4)
Water NSW may, for the purposes of subsection
(3), exercise any powers of the person on whom the notice was served, in
addition to or instead of any powers of Water NSW.
(5)
Except as provided by subsection (4), this
section does not confer on Water NSW or the owner of the conduit any
additional powers of entry or powers to carry out works than would be
available apart from this section.
(6)
In this section:
conduit means anything that is in or
under a public road (or any other land on which no building or other structure
is located) and is used for the conveyance of a substance, energy or
signals.
35Water NSW may use water
management works to generate hydro-electricity
Water NSW may:
(a)
authorise devices for generating electricity from
water released in the exercise of Water NSW’s functions under this Act
to be placed on or in any of its water management works,
and
(b)
install and use devices placed on or in any of
its water management works to generate and supply
electricity.
36Obstruction of water
management works
(1)
If a person places a structure or other thing in
or near any of the water management works of Water NSW in such a manner as to
interfere with the work, Water NSW may:
(a)
demolish and remove the structure or other thing,
and
(b)
repair the work, and
(c)
recover the cost of doing so in a court of
competent jurisdiction as a debt owing to Water NSW by the person who placed
the structure or other thing there.
(2)
Water NSW may apply for and obtain an injunction
to prevent a structure or other thing being placed as referred to in
subsection (1).
(3)
A person:
(a)
must not wilfully or negligently destroy, damage
or interfere with any water management works of Water NSW,
or
(b)
must not open up ground to expose any water
management work of Water NSW without reasonable excuse, or the consent of
Water NSW, and without giving Water NSW at least 2 days’ written notice
of intention to open the ground unless that requirement is waived by Water
NSW.
Maximum penalty:
(a)
in the case of a corporation—400 penalty
units, or
(b)
in the case of an individual—200 penalty
units.
37Compensation by Water NSW for
damage
(1)
Water NSW, in exercising its functions under this
Part, is to do as little damage as practicable and is, subject to this Part,
to compensate all persons who suffer damage by the exercise of its
functions.
(2)
Compensation may be made by reinstatement,
repair, construction of works or payment.
(3)
A claim for compensation:
(a)
is ineffective unless made in writing not later
than 6 months after the damage was suffered, and
(b)
in the absence of agreement on the compensation,
must be dealt with as if it were a claim for compensation for the acquisition
of land for public purposes under the Public Works and
Procurement Act 1912.
38Compensation to Water NSW for
damage
(1)
Without limiting section 36, a person who,
without the consent of Water NSW, carries out any activity that causes
destruction of, damage to or interference with any work owned by Water NSW in
circumstances in which the person should have known that the destruction,
damage or interference would result from the carrying out of the activity, is
liable to compensate Water NSW for all loss or damage suffered by Water NSW as
a result.
(2)
Water NSW is not entitled to compensation both
under this section and another provision of this Act for the same destruction,
damage or interference.
(3)
A reference in this section to a person extends
to any person:
(a)
who caused the carrying out of the activity,
or
(b)
by whose order or direction the activity was
carried out, or
(c)
who aided, assisted, counselled or procured the
carrying out of the activity.
(4)
Water NSW may proceed against a person for
recovery of its loss or compensation for its damage under this section whether
or not Water NSW has proceeded against the person principally responsible for
the loss or damage or any other person involved in the carrying out of the
activity that caused the loss or damage.
39Water NSW may impose fees and
charges
(1)
Water NSW may impose fees and charges on any
person to whom Water NSW provides a service in the exercise of its functions,
including any person to whom Water NSW makes water
available.
(2)
Water NSW may impose different fees and charges
according to specified factors or circumstances.
(3)
Any fee or charge imposed under this section is
taken to be a debt due to Water NSW and is recoverable in a court of competent
jurisdiction.
(4)
A fee or charge levied under this Act on the
holder of an access licence (within the meaning of the Water
Management Act 2000) and any costs awarded to Water NSW by
a court in proceedings to recover the fee or charge are a charge on the access
licence and may be registered in accordance with the Water
Management Act 2000.
(5)
However, Water NSW may not impose a fee or charge
under this section for the provision of any service whose cost is determined
or regulated under any arrangement, operating licence, memorandum of
understanding or other instrument under this Act.
Note—
For example, arrangements between Water NSW and
the Sydney Water Corporation made under section 25 regarding the supply of
water to the Sydney Water Corporation are required to make provision for the
cost of the supply of such water (subject to the role of IPART under Division
7 of Part 2).
Part 4Declared catchment areas and
special and controlled areas
Division 1Declared catchment
areas
40Declaration of declared
catchment areas
(1)
The Governor may, by order published in the
Gazette, declare an area of land specified in the order to be, or to be part
of, a declared catchment area of Water NSW.
(2)
The Governor may, by the same order or by a
subsequent order published in the Gazette, declare a specified part of a
declared catchment area of Water NSW to be the inner catchment area or outer
catchment area of the declared catchment area.
(3)
The Sydney catchment area must not be reduced in
size, and an order revoking the declaration of the Sydney catchment area as a
declared catchment area must not be made, unless authorised by an Act of
Parliament.
41Catchment health
indicators
(1)
The Minister:
(a)
must appoint a public authority or other person
to be the
appointed person to carry out functions under this section
in relation to the Sydney catchment area, and
(b)
may appoint a public authority or other person to
be the
appointed person to carry out functions under this section
in relation to any other declared catchment area.
(2)
The appointed person must develop and approve
catchment health indicators of the catchment health of the declared catchment
area.
(3)
The appointed person must publish the approved
catchment health indicators in the Gazette.
(4)
Those indicators may be amended or replaced in
the same way as they were originally developed, approved and
published.
42Catchment
audits
(1)
The Minister:
(a)
must appoint a public authority or other person
to be the appointed
auditor to carry out functions under this section in
relation to the Sydney catchment area, and
(b)
may appoint a public authority or other person to
be the appointed
auditor to carry out functions under this section in
relation any other declared catchment area.
(2)
The appointed auditor must:
(a)
conduct an audit (a catchment
audit) of the catchment health of the declared catchment
area, and
(b)
present a report on that audit to the
Minister.
(3)
The catchment audit must assess the state of the
declared catchment area having regard to the catchment health indicators
approved under section 41 for the area, as in force at the time of the
assessment.
(4)
A catchment audit for the Sydney catchment area
must be conducted, and a report presented to the Minister on that audit (the
initial
report), no more than 3 years after the day on which section
4 commences. Subsequent audits must be conducted, and reports must be
presented to the Minister on those audits, at intervals of no more than 3
years calculated from the day the initial report is
presented.
(5)
A catchment audit for a declared catchment area
other than the Sydney catchment area must be conducted, and a report presented
to the Minister, within the period specified by the
Minister.
(6)
The Minister is to table the report (or cause it
to be tabled) in both Houses of Parliament within one month after the Minister
receives the report.
(7)
The Minister is to forward a copy of the report
of a catchment audit to Water NSW as soon as practicable after the report is
received.
43Incorporation of catchment
audit findings
(1)
Water NSW must evaluate the findings of a
catchment audit, as stated in the report of the catchment audit, to the extent
to which they relate to the activities of Water NSW and risks to water quality
in the declared catchment area to which the catchment audit
relates.
(2)
Water NSW must incorporate the findings of a
catchment audit, to the extent to which they relate to the activities of Water
NSW and water quality, into:
(a)
Water NSW’s risk framework,
and
(b)
Water NSW’s programs and activities
relating to catchment management.
(3)
This section must be complied with within 6
months after the catchment audit report is received by the
Minister.
44Report concerning adjustments
as a result of catchment audit findings
(1)
If a catchment audit has been conducted under
this Division for a declared catchment area, Water NSW must report to the
Minister on Water NSW’s progress to achieve improvements in catchment
health, to prevent degradation of existing catchment health and to maintain
existing catchment health, having regard to the findings of the
audit.
(2)
Such a report must be provided within 2 years
after the catchment audit report is received by the
Minister.
45Operation of this
Division
Nothing in this Division prevents:
(a)
an operating licence from including terms and
conditions relating to Water NSW’s activities (including, but not
limited to, Water NSW’s catchment management functions) or requiring
reports on those activities, or
(b)
IPART from recommending to the Minister that an
operating licence include terms and conditions relating to Water NSW’s
catchment management functions or requiring reports on those
functions.
Division 2Special
areas
46Definitions
In this Division:
means:
(a)
the Minister, and
(b)
if the Minister is not the Minister for the
Environment—the Minister for the Environment.
public
agency means the Governor, a Minister or a public
authority.
47Special
areas
(1)
The Governor may, on the recommendation of the
Minister, by order published in the Gazette, declare an area of land specified
in the order to be a special area.
(2)
The Minister is not to recommend the making of
such an order unless the Minister certifies that the Minister is satisfied
that the making of the order is necessary for either or both of the following
purposes:
(a)
protecting the quality of stored waters, whether
intended for use for drinking or other purposes,
(b)
maintaining the ecological integrity of an area
of land to be declared to be a special area in a manner that is consistent
with Water NSW’s objectives.
(3)
The Minister must cause a copy of an order made
under this section, including an order amending an order, to be tabled in each
House of Parliament within 14 sitting days of that House after the order has
been published in the Gazette.
(4)
A special area must not be reduced in size, and
an order declaring an area of land to be a special area must not be repealed,
unless authorised by an Act of Parliament.
(5)
The Governor may, on the recommendation of the
Minister, by order published in the Gazette, declare that the order declaring
an area of land at Woodford to be a special area (being an order published in
Gazette No 45 of 15 March 1991 at page 2186) is repealed on the date specified
in the later order.
48Restriction on alienation of
land in special areas
(1)
Water NSW must not alienate, mortgage, charge or
demise land in a special area that is owned by or vested in Water NSW
unless:
(a)
to or in favour of the Minister administering the
National Parks and Wildlife Act 1974 (at
no cost to that Minister), or
(b)
authorised by an Act of
Parliament.
(2)
Nothing in subsection (1) operates:
(a)
to extinguish or otherwise affect any existing
lease or other interest in the land in a special area, or
(b)
to prevent the renewal of any such lease or other
interest, or
(c)
to prevent the grant of a lease or other interest
in the land in accordance with any plan of management prepared in relation to
the land under this Act.
49Crown land in special
areas
(1)
Action may not be taken under the Crown Lands Act 1989 in relation to land
in a special area unless the Regulatory Authority has given approval in
writing and any conditions to which the approval is subject are complied
with.
(2)
The Regulatory Authority may, in a special area,
by order in writing, authorise Water NSW to exercise the functions of a person
or body appointed to manage the affairs of a reserve trust under Part 5 of the
Crown Lands Act 1989 without being
appointed as such.
50Exercise of functions by
public agencies in special areas
(1)
A public agency may not, in relation to land
within a special area, exercise functions other than functions under this Act
unless notice is first given to the Regulatory
Authority.
(2)
On receiving a notice referred to in this
section, the Regulatory Authority may make such representations to the public
agency as the Regulatory Authority thinks fit.
(3)
A public agency may not exercise functions
contrary to any such representations unless, before the exercise of the
functions, not less than 28 days’ notice has been given to the
Regulatory Authority of the functions intended to be
exercised.
(4)
If a public agency has functions with regard to a
development application or an application for a complying development
certificate relating to land within a special area to which an environmental
planning instrument applies, the forwarding of the application or a copy of it
to the Regulatory Authority, whether by the public agency or the applicant, is
taken also to be the giving of notice for the purposes of this
section.
(5)
This section does not apply to a public
agency’s functions with regard to the making of an environmental
planning instrument in relation to land within a special
area.
(6)
This section does not apply to a public
agency’s functions with regard to a development application if an
environmental planning instrument applying in the special area prevents the
development application from being determined by the granting of consent
without the concurrence of the Regulatory Authority.
51Regulations concerning special
areas
(1)
The regulations may make provision for or with
respect to special areas, including charges or payments for abstraction of
water and the regulation or prohibition of abstracting, using, polluting or
contaminating waters or polluting or contaminating land within such
areas.
(2)
A regulation made under this Division prevails to
the extent of any inconsistency with an instrument made under another Act
(other than a State environmental planning policy under the Environmental Planning and Assessment Act
1979).
52Plans of
management
(1)
The joint sponsors are jointly required to cause
a plan of management to be prepared for each special area as soon as
practicable after it has been declared to be a special
area.
(2)
When a plan of management has been prepared, the
joint sponsors must give notice of the plan in a newspaper circulating
throughout New South Wales and must, in that notice:
(a)
specify the address of the place at which copies
of the plan of management may be inspected, and
(b)
specify the address to which representations
concerning the plan of management may be forwarded.
(3)
Any person may, within 30 days or such longer
period as may be specified in the notice, make representations to the joint
sponsors concerning the plan of management.
(4)
The joint sponsors must, on the expiration of the
period referred to in subsection (3), and before adopting the plan of
management, consider any representations made under this
section.
(5)
The joint sponsors may adopt the plan of
management without alteration or with such alterations as the joint sponsors
think fit having regard to the representations made under this
section.
(6)
The joint sponsors may:
(a)
amend or alter a plan of management from time to
time, or
(b)
cancel a plan of management,
or
(c)
cancel a plan of management and substitute a new
plan.
(7)
Before doing any of the things referred to in
subsection (6), the joint sponsors may consult with any person or body
(including persons or bodies other than the joint sponsors) that the joint
sponsors think fit.
(8)
Subsections (2)–(4) apply to an amendment
or alteration of a plan of management in the same way as they apply to a plan
of management.
53Operations under plan of
management
(1)
A plan of management adopted under this Act for a
special area must be carried out and given effect to by the joint
sponsors.
(2)
Subject to the requirements of any other Act or
any instrument under any other Act, no operations are to be undertaken by the
joint sponsors in relation to the lands within the special area unless the
operations are in accordance with the plan.
(3)
The joint sponsors (together or individually) may
engage such contractors (including government agencies) as may be necessary or
convenient to assist them in carrying out and giving effect to the
plan.
Division 3Controlled
areas
54Controlled
areas
(1)
The Governor may, on the recommendation of the
Minister, by order published in the Gazette, declare an area of land specified
in the order to be a controlled area.
(2)
An order under this section applies to land only
while it is owned by or vested in Water NSW.
55Regulations concerning
controlled areas
(1)
The regulations may make provision for or with
respect to controlled areas, including the regulation or prohibition of
abstracting, using, polluting or contaminating waters or polluting or
contaminating land within such areas.
(2)
A regulation made under this Division prevails to
the extent of any inconsistency with an instrument made under another Act
(other than a State environmental planning policy under the Environmental Planning and Assessment Act
1979).
Part 5Regulatory
functions
Division 1Functions of
IPART
56Regulatory functions of
IPART
(1)
The regulatory functions of IPART under this Act
are as follows:
(a)
the function of making recommendations under
subsection (2),
(b)
the functions of monitoring and reporting or
informing under subsection (3),
(c)
the auditing functions of IPART under subsection
(4),
(d)
the function of determining the operating licence
fee (if any),
(e)
the function of imposing monetary penalties or
requiring other action to be taken under section 17,
(f)
such other functions of IPART under this Act as
are specified by the regulations for the purposes of this
section.
(2)
IPART has the function of making recommendations
to the portfolio Minister for or with respect to:
(a)
the granting, amendment or cancellation of an
operating licence, and
(b)
the imposition, amendment or cancellation of
conditions in relation to an operating licence, and
(c)
action to be taken, and sanctions to be applied,
in respect of a contravention of an operating licence, and
(d)
remedial action that may be warranted as a result
of a contravention of an operating licence.
(3)
IPART has the functions of:
(a)
monitoring and reporting to the portfolio
Minister on compliance by Water NSW with its operating licences,
and
(b)
informing the portfolio Minister about any
failure of Water NSW to meet operational standards or any other requirements
imposed on Water NSW under its operating licences.
(4)
IPART has such functions as may be conferred or
imposed on it by an operating licence in connection with operational audits of
Water NSW.
57Operational and other
audits
(1)
IPART is to prepare operational audits of Water
NSW at the times directed by the portfolio Minister.
(2)
The portfolio Minister may direct IPART to
prepare an operational audit of specified matters only.
(3)
IPART is to ensure that each operational audit of
Water NSW is prepared in accordance with its operating
licences.
58Report on operational
audit
IPART is to present to the portfolio Minister a
report on each operational audit within one month after its receipt of the
audit.
59Tabling of report in
Parliament
The portfolio Minister is to table the report (or
cause it to be tabled) in both Houses of Parliament within one month after the
Minister receives the report.
60Cost of
audit
(1)
Water NSW is required to pay to the Treasurer the
cost (as certified by IPART) involved in and in connection with carrying out
the operational audit of Water NSW.
(2)
Without limitation, an operating licence may
include terms and conditions relating to the determination of the cost of
carrying out the operational audit.
Division 2Functions of Regulatory
Authority
61Regulatory
Authority
(1)Meaning of “Regulatory
Authority”
For the purposes of this Act, the Regulatory Authority, in relation to
a function conferred or imposed on the Regulatory Authority by or under this
or any other Act (a regulatory function), is:
(a)
the Minister, or
(b)
if the Minister appoints a person under this
section to exercise that function—that
person.
(2)Appointment of qualified
persons to exercise regulatory functions
The Minister may, by order published in the
Gazette, appoint a qualified person to exercise all or specified regulatory
functions.
Note—
Section 43 (2) of the Interpretation Act 1987 provides that if
an Act confers a power on any person or body to make an order (whether or not
the order must be in writing), the power includes power to amend or repeal any
order made in the exercise of that power.
(3)
Subject to the regulations, each of the following
is a qualified
person:
(a)
a public authority,
(b)
the head of a Public Service
agency.
(4)
However, Water NSW cannot be appointed to
exercise a regulatory function that would authorise or permit Water
NSW:
(a)
to have a concurrence role (as referred to in
section 62) with respect to the granting of development consent under Part 4
of the Environmental Planning and Assessment
Act 1979 for the carrying out of development by it,
or
(b)
to grant development consent under Part 4 of the
Environmental Planning and Assessment Act
1979 for the carrying out of development by
it.
(5)
Different qualified persons may be appointed to
exercise different regulatory functions, whether by the same order or
different orders.
(6)
The Regulatory Authority in relation to a
regulatory function may delegate the function to:
(a)
if the Regulatory Authority is the
Minister—a member of staff of the Department, or
(b)
if the Regulatory Authority is a public
authority—a member of staff of the authority, or
(c)
if the Regulatory Authority is the head of a
Public Service agency—a member of staff of that
agency.
(7)
Without limiting the generality of any provisions
of the Independent Pricing and Regulatory
Tribunal Act 1992, a service provided by Water NSW in
exercise of a regulatory function it is appointed to exercise under this
section is capable of being declared to be a government monopoly service
within the meaning of that Act.
(8)Annual reports by persons
appointed to exercise regulatory functions
A qualified person who is appointed under this
section to exercise any regulatory functions must report annually to the
Minister with respect to the exercise of the functions by the person and
members of staff of the public authority or Public Service agency
concerned.
(9)
A report under subsection (8) is to be provided
to the Minister within 4 months after each 30 June.
(10)
The report is to specify the following matters in
relation to the year ended on that 30 June:
(a)
if any members of staff of the public authority
or Public Service agency concerned were authorised officers during the
year:
(i)
the number of times such members of staff entered
land, or obtained search warrants, under Division 2 of Part 6,
and
(ii)
the number of times such members of staff
exercised functions under Division 3 of Part 6, the kind of functions
exercised and the outcomes of the exercise of functions,
and
(iii)
the number of times such members of staff issued
penalty notices under section 102 and the outcomes of issuing the penalty
notices, and
(iv)
the number of times such members of staff
exercised functions with respect to the commencement of prosecutions for
offences against this Act or the regulations and the outcomes of the
prosecutions,
(b)
if the qualified person was appointed to exercise
regulatory functions under Division 3 or 4 of Part 6—the number of times
the person or members of staff have exercised the functions, the kinds of
functions exercised and the outcomes of the exercise of the
functions,
(c)
any other information requested by the Minister
with respect to the exercise of regulatory functions by the qualified person
or members of staff.
(11)
The report may be combined with any other annual
report of the public authority or Public Service agency concerned that is
required to be tabled in both Houses of Parliament.
(12)
The Minister is to table the report (or cause it
to be tabled) in both Houses of Parliament within one month after the Minister
receives the report, unless the report has been combined with another annual
report of the public authority or Public Service agency
concerned.
(13)Definition
In this section:
head of a Public Service agency has
the same meaning as in the Government Sector
Employment Act 2013.
62Concurrence and other roles
under environmental planning instruments concerning declared catchment
areas
(1)
The Regulatory Authority has such functions as
are necessary or convenient to carry out any concurrence or other role
conferred or imposed on the Regulatory Authority by or under any environmental
planning instrument in relation to a declared catchment
area.
(2)
For the purpose of enabling the Regulatory
Authority to exercise the functions conferred on it by this section:
(a)
the Regulatory Authority has and may exercise the
powers conferred on a council under Division 1A of Part 6 of the Environmental Planning and Assessment Act
1979, and
(b)
an authorised officer has and may exercise the
powers conferred by that Division on a person authorised by a council under
section 118A (1) of that Act, subject to that
Division.
(3)
This section does not affect the generality of
any other provision of this or any other Act.
63Compliance role under other
legislation
(1)
The Regulatory Authority has such functions as
are necessary or convenient to carry out any inspectorial, enforcement or
other role conferred or imposed on it by the regulations under this Act by
reference to powers conferred on other persons or bodies under any Act or
instrument under any Act so far as they relate to:
(a)
activities carried out or proposed to be carried
out within a declared catchment area, or
(b)
activities carried out or proposed to be carried
out outside a declared catchment area but being of such a nature as affect or
may affect a declared catchment area.
(2)
The regulations under this Act may, on the
recommendation of the Minister and with the approval of the Minister
administering the Act concerned, make provision for or with respect to
conferring or imposing on the Regulatory Authority any such function, and to
specifying the effect or consequences of the exercise of any such
function.
(3)
This section does not affect the generality of
any other provision of this or any other Act so far as it confers or imposes
functions on the Regulatory Authority, but otherwise has effect despite
anything in any other Act.
(4)
This section does not apply in relation
to:
(a)
the grant of licences, or
(b)
activities carried on by Water
NSW.
(5)
In this section:
grant includes issue, approve or
amend.
licence includes consent, permit,
authority or any other kind of authorisation (however
described).
64Approval of infrastructure
activities within Sydney catchment area
(1)
In this section:
infrastructure activity means any
development or other activity of any kind:
(a)
that is proposed to be carried out within the
Sydney catchment area:
(i)
on land owned or leased by, or leased to, Water
NSW, or
(ii)
on other land but under a contract to which Water
NSW is a party, and
(b)
that, but for this section, would be subject in
any respect to the Environmental Planning and Assessment
Act 1979, the Local Government
Act 1993 or any instrument in force under either of those
Acts.
(2)
The Regulatory Authority may approve the carrying
out of an infrastructure activity if the Regulatory Authority certifies in the
instrument of approval that the carrying out of the activity is:
(a)
required to protect the quality of water supplied
by Water NSW, and
(b)
required in the interests of public health or
public safety, and
(c)
required to be carried out
urgently.
(3)
If the Regulatory Authority has given such an
approval, the Environmental Planning and Assessment
Act 1979 and the Local Government
Act 1993 and any instruments in force under either of
those Acts do not apply to or in respect of:
(a)
the approval of the Regulatory Authority to the
carrying out of that activity, or
(b)
the carrying out of that activity,
or
(c)
the use at any time of the works with which that
activity is concerned, or
(d)
the land on which that activity is carried out or
proposed to be carried out or on which those works are used or proposed to be
used, so far as is relevant to that activity or those
works.
Part 6Compliance and
enforcement
Division 1Authorised
officers
65Authorised
officers
(1)
The Minister may appoint any person (including a
class of persons) as authorised officers for the purposes of this
Act.
(2)
On appointing an authorised officer under
subsection (1), the Minister must issue to the officer a certificate of
authority unless the officer is a police officer or an authorised officer
under the National Parks and Wildlife Act
1974.
(3)
A certificate of authority must:
(a)
state that it is issued under the Water NSW Act 2014,
and
(b)
give the name of the person to whom it is issued,
and
(c)
state the date, if any, on which it expires,
and
(d)
describe the nature of the functions conferred
and the source of the functions.
(4)
In the course of exercising the functions of an
authorised officer under this Act, the officer must, if requested to do so by
any person affected by the exercise of any such function, produce to the
person:
(a)
in the case of a police officer—the
officer’s police identification, or
(b)
in the case of an authorised officer under the
National Parks and Wildlife Act
1974—the officer’s identification card as an
authorised officer under that Act, or
(c)
in any other case—the authorised
officer’s identification card issued in accordance with this
section.
(5)
An authorised officer may exercise the functions
under this Act that are described in the officer’s certificate of
authority.
66Authorised officers may
request assistance
A person may accompany an authorised officer and
take all reasonable steps to assist an authorised officer in the exercise of
the authorised officer’s functions under this Act if the authorised
officer is of the opinion that the person is capable of providing assistance
to the authorised officer in the exercise of those
functions.
67Obstruction of authorised
officer
A person must not:
(a)
obstruct, hinder or interfere with an authorised
officer in the exercise of the officer’s functions under this Act or the
regulations, or
(b)
impersonate an authorised
officer.
Maximum penalty:
(a)
in the case of a corporation—$250,000,
or
(b)
in the case of an
individual—$120,000.
Division 2Powers of entry of authorised
officers
68Entry on to
land
(1)
An authorised officer may enter and occupy land
for the purpose of ascertaining whether the provisions of this Act or the
regulations are being complied with or have been contravened.
Note—
See also the investigation powers conferred on
authorised officers by Division 3.
(2)
The power conferred by subsection (1) may not be
exercised unless the authorised officer proposing to exercise the
power:
(a)
is in possession of the identification the
officer is required to produce on request under section 65,
and
(b)
exercises the power at a reasonable time during
daylight, unless this would defeat the purpose for which the power is to be
exercised or the power is exercised in an emergency, and
(c)
produces the person’s identification if
required to do so by the occupier of the land, and
(d)
uses no more force than is reasonably necessary
to effect the entry.
(3)
An authorised officer is not entitled to enter a
part of premises used for residential purposes, except:
(a)
with the consent of the occupier of the part,
or
(b)
under the authority of a search
warrant.
69Search
warrants
(1)
An authorised officer may apply to an issuing
officer for a search warrant if the officer has reasonable grounds for
believing that a provision of this Act or the regulations has been or is being
contravened on land.
(2)
An issuing officer to whom an application for a
search warrant is made under this section may, if satisfied that there are
reasonable grounds for doing so, issue a search warrant authorising an
authorised officer named in the warrant, when accompanied by a police officer,
and any other person named in the warrant:
(a)
to enter the land concerned,
and
(b)
to search the land for evidence of a
contravention of this Act or the regulations.
(3)
Division 4 of Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 applies
to a search warrant issued under this section.
(4)
In this section:
issuing
officer means an authorised officer within the meaning of
the Law Enforcement (Powers and Responsibilities) Act
2002.
Division 3Investigation
powers
70Power of authorised officers
to require answers
(1)
An authorised officer may require a person whom
the authorised officer suspects on reasonable grounds to have knowledge of
matters in respect of determining whether there has been compliance with or a
contravention of this Act or the regulations or any notice issued under this
Act to answer questions in relation to those matters.
(2)
The Regulatory Authority may, by notice in
writing, require a corporation to nominate, in writing within the time
specified in the notice, a director or officer of the corporation to be the
corporation’s representative for the purpose of answering questions
under this section.
(3)
Answers given by a person nominated under
subsection (2) bind the corporation.
(4)
A person must not:
(a)
fail or refuse to comply with a requirement under
subsection (1) or (2), or
(b)
in purported compliance with such a requirement,
give an answer that is false or misleading in a material
particular.
Maximum penalty:
(a)
in the case of a corporation—$250,000 and,
in the case of a continuing offence, a further penalty of $30,000 for each day
the offence continues, or
(b)
in the case of an individual—$120,000 and,
in the case of a continuing offence, a further penalty of $15,000 for each day
the offence continues.
(5)
An authorised officer may, by notice in writing,
require a person to attend at a specified place and time to answer questions
under this section if attendance at that place is reasonably required in order
that the questions can be properly put and answered.
(6)
The place and time at which a person may be
required to attend under subsection (5) is to be:
(a)
a place and time nominated by the person,
or
(b)
if the place and time nominated is not reasonable
in the circumstances or a place and time is not nominated by the person, a
place and time nominated by the authorised officer that is reasonable in the
circumstances.
71Requirement to provide
information and records
(1)
The Regulatory Authority may, by notice in
writing given to a person, require the person to provide to the Authority such
information or records (or both) as the Authority requires by the notice in
connection with determining whether there has been compliance with or a
contravention of this Act or the regulations or any notice issued under this
Act.
(2)
A person must not:
(a)
fail or refuse to comply with a requirement under
subsection (1), or
(b)
in purported compliance with such a requirement,
give information, or provide a record, that is false or misleading in a
material particular.
Maximum penalty:
(a)
in the case of a corporation—$250,000 and,
in the case of a continuing offence, a further penalty of $30,000 for each day
the offence continues, or
(b)
in the case of an individual—$120,000 and,
in the case of a continuing offence, a further penalty of $15,000 for each day
the offence continues.
72Provisions relating to
records
(1)
A notice under this Division may require a person
to provide only existing records that are in the person’s possession or
that are within the person’s power to obtain
lawfully.
(2)
The Regulatory Authority may take copies of any
record provided to the Authority under this Division.
(3)
If any record required to be provided under this
Division is in electronic, mechanical or other form, the notice is taken to
require the record to be provided in written form, unless the notice otherwise
provides.
73Requirement to state name and
address or produce driver licence
(1)
An authorised officer may require a person whom
the authorised officer suspects on reasonable grounds to be offending against
this Act or the regulations to state the person’s full name and
residential address.
(2)
An authorised officer may require the driver of a
motor vehicle in a declared catchment area to produce his or her driver
licence and to state his or her full name and residential
address.
(3)
An authorised officer may request a person who is
required under this section to state his or her full name and residential
address to provide proof of the name and address. It is not an offence against
this section to fail to comply with any such request.
(4)
A person must not:
(a)
fail or refuse to comply with a requirement under
subsection (1) or (2), or
(b)
in purported compliance with such a requirement,
state a name that is not the person’s name or an address that is not the
person’s residential address or produce the driver licence of another
person.
Maximum penalty: 100 penalty
units.
74Requirement for owner of motor
vehicle and others to give information
(1)
If the Regulatory Authority or an authorised
officer suspects on reasonable grounds that the driver of a motor vehicle has
committed an offence against this Act or the regulations, the Regulatory
Authority or the authorised officer may:
(a)
require the owner of the vehicle, or the person
in whose name it is registered, or the person having the custody of the
vehicle, to give information (which must, if so required, be given in the form
of a statement in writing, signed by that owner or person) as to the name and
residential address of the driver, or
(b)
require any other person to give any information
which is in that other person’s power to give and which may lead to the
identification of the driver.
(2)
A person must not:
(a)
fail or refuse to comply with a requirement under
subsection (1), or
(b)
in purported compliance with such a requirement,
give any information that is false or misleading in a material
particular.
Maximum penalty: 100 penalty
units.
(3)
In a prosecution for an offence in respect of a
failure or refusal to comply with a requirement under subsection (1) (a), it
is a defence if the defendant proves to the satisfaction of the court that the
defendant did not know and could not with reasonable diligence have
ascertained the name or residential address of the driver concerned, or both,
as the case may require.
(4)
If a statement in writing purporting to be
provided under subsection (1) (a) and to contain particulars of the name and
residential address of the driver of a motor vehicle at the time of commission
of an alleged offence against this Act or the regulations is produced in any
court in proceedings against the person named in the statement as the driver
for the offence, the statement is, if that person does not appear before the
court, evidence without proof of signature that the person was the driver of
the vehicle at that time.
75Provisions relating to
requirements to provide records, information or answer
questions
(1)
A person is not guilty of an offence of failing
to comply with a requirement under this Division to provide records or
information or to answer a question unless the person was warned on the
relevant occasion that a failure to comply is an
offence.
(2)
A person is not excused from a requirement under
this Division to provide records or information or to answer a question on the
ground that the record, information or answer might incriminate the person or
make the person liable to a penalty.
(3)
However, any information provided or answer given
by a natural person in compliance with a requirement under this Division is
not admissible in evidence against the person in criminal proceedings (except
proceedings for an offence against this Division) if:
(a)
the person objected at the time to doing so on
the ground that it might incriminate the person, or
(b)
the person was not warned on the relevant
occasion that the person may object to providing the information or giving the
answer on the ground that it might incriminate the
person.
(4)
Any record provided by a person in compliance
with a requirement under this Division is not inadmissible in evidence against
the person in criminal proceedings on the ground that the record might
incriminate the person.
(5)
Further information obtained as a result of a
record or information provided or of an answer given in compliance with a
requirement under this Division is not inadmissible on the ground:
(a)
that the record or information had to be provided
or the answer had to be given, or
(b)
that the record or information provided or answer
given might incriminate the person.
(6)
This section extends to a requirement under this
Division to state a person’s name and address.
Division 4Catchment correction notices
and catchment protection notices
Subdivision 1Definitions
76Definitions
In this Division:
catchment
correction notice means a notice under Subdivision
2.
catchment
protection notice means a notice under Subdivision
3.
compliance cost notice means a
notice under section 86.
corrective action, in relation to a
targeted activity, includes the following:
(a)
action to prevent, minimise, remove, disperse,
destroy or mitigate any adverse impact on water quality or catchment health
resulting or likely to result from the activity,
(b)
ascertaining the nature and extent of the
targeted activity and of the actual or likely resulting adverse impact on
water quality or catchment health,
(c)
preparing and carrying out a remedial plan of
action.
targeted
activity means an activity in a special area or controlled
area that has, or is likely to have, caused damage to, or detrimentally
affected, the quality of any water, or the catchment health of any land, in
the area concerned.
Subdivision 2Catchment correction
notices
77Corrective action by occupiers
or persons carrying on certain activities
(1)
The Regulatory Authority may, by notice in
writing (a catchment
correction notice), do either or both of the
following:
(a)
direct an occupier of land on or from which the
Regulatory Authority reasonably suspects that a targeted activity has been
carried out or is being carried out,
(b)
direct a person who is reasonably suspected by
the Regulatory Authority of carrying out or having carried out a targeted
activity,
to take the corrective action specified in the notice
within such period as is specified in the notice.
(2)
The catchment correction notice may require the
person to whom the notice is given to provide reports to the Regulatory
Authority regarding progress on the carrying out of the corrective
action.
(3)
If the person given a catchment correction notice
complies with the notice but was not the person who carried out the targeted
activity, the cost of complying with the notice may be recovered by the person
who complied with the notice as a debt in a court of competent jurisdiction
from the person who carried out the targeted activity.
(4)
A catchment correction notice, or a variation of
a catchment correction notice, operates from the day the notice or notice of
the variation is given or from such later day as the notice
specifies.
(5)
A person who, without reasonable excuse, does not
comply with a catchment correction notice given to the person is guilty of an
offence.
Maximum penalty:
(a)
in the case of a corporation—$250,000 and,
in the case of a continuing offence, a further penalty of $30,000 for each day
the offence continues, or
(b)
in the case of an individual—$120,000 and,
in the case of a continuing offence, a further penalty of $15,000 for each day
the offence continues.
Note—
An offence against subsection (5) 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 95.
78Corrective action by public
authorities
(1)
If the Regulatory Authority reasonably suspects
that a targeted activity has been carried out or is being carried out, the
Regulatory Authority may, by notice in writing, direct a public authority to
take such corrective action as is specified in the notice. The public
authority is authorised and required to take that
action.
(2)
If a public authority reasonably suspects that a
targeted activity has been carried out or is being carried out, the public
authority may take such corrective action as it considers necessary. The
public authority is authorised to take that action, whether or not it is
directed to take corrective action under subsection (1).
(3)
Notices may be given, and action may be taken,
under this section whether or not a catchment correction notice has been given
under section 77, and (if such a notice has been given) whether or not the
period specified in the notice under that section has
expired.
(4)
A public authority may take corrective action
under this section by itself or by its employees, agents or
contractors.
(5)
In this section:
public
authority does not include a State owned
corporation.
79Catchment correction notice
may be given orally
(1)
The Regulatory Authority may, instead of giving a
direction under this Subdivision by notice in writing, cause the direction to
be given orally by an authorised officer.
(2)
A direction given orally to a person ceases to
have effect on the expiration of the period of 72 hours after the time it was
given unless confirmed by the Regulatory Authority by a correction notice in
writing given to the person within that period.
(3)
A direction given orally has the same effect as a
direction given by notice in writing, and is taken to be a catchment
correction notice.
80Fee for catchment correction
notice
(1)
The purpose of this section is to enable the
Regulatory Authority to recover the administrative costs of preparing and
giving catchment correction notices.
(2)
A person who is given a catchment correction
notice under section 77 must, within 30 days after the notice is given, pay
the fee prescribed under section 94 of the Protection of the
Environment Operations Act 1997 to the Regulatory
Authority.
(3)
The Regulatory Authority may:
(a)
extend the time for payment of the fee, on the
application of the person given the catchment correction notice,
or
(b)
waive payment of the whole or any part of the
fee, on the Regulatory Authority’s own initiative or on the application
of the person.
(4)
A person who does not pay the fee within the time
required under this section is guilty of an offence.
Maximum penalty: 200 penalty
units.
Subdivision 3Catchment protection
notices
81Preventive
action
(1)
This section applies when the Regulatory
Authority reasonably suspects that a targeted activity has been, will be or is
being carried out on any land in a special area or a controlled
area.
(2)
The Regulatory Authority may, by notice in
writing (a catchment
protection notice), do either or both of the
following:
(a)
direct the occupier of the
land,
(b)
direct the person carrying on the
activity,
to take such action, as is specified in the notice
within such period (if any) as is specified in the notice, to ensure that
either the targeted activity is not commenced, is no longer carried on, or if
the targeted activity is permitted to be carried on in future, it is carried
on in a manner that does not cause damage to, or detrimentally affect, the
quality of any water, or the catchment health of any land, in the special area
or controlled area.
(3)
The action to be taken may (without limitation)
include any of the following:
(a)
ceasing to carry on or not commencing to carry on
an activity,
(b)
carrying on an activity in a particular
manner,
(c)
carrying on an activity only during particular
times,
(d)
preparing and carrying out a plan of action to
control, prevent or minimise any damage to, or detrimental effect on, the
quality of any water, or the catchment health of any land, in the special area
or controlled area.
(4)
If the occupier who is given a notice is not the
person carrying on the targeted activity, the notice is taken to require the
occupier to take all available steps to cause the action to be taken by the
person carrying on the targeted activity.
(5)
A catchment protection notice may require the
person to whom the notice is given to provide reports to the Regulatory
Authority regarding progress on carrying out the action required to be taken
by the notice.
(6)
A person who does not comply with a catchment
protection notice given to the person is guilty of an offence.
Maximum penalty:
(a)
in the case of a corporation—$250,000 and,
in the case of a continuing offence, a further penalty of $30,000 for each day
the offence continues, or
(b)
in the case of an individual—$120,000 and,
in the case of a continuing offence, a further penalty of $15,000 for each day
the offence continues.
Note—
An offence against subsection (6) 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 95.
82Action in event of failure to
comply
If a person does not comply with a catchment
protection notice given to the person, the Regulatory Authority may take
action to cause the notice to be complied with by the Regulatory Authority or
by his or her employees, agents or contractors.
83Commencement of operation of
catchment protection notice or variation of catchment protection
notice
(1)
A catchment protection notice, or a variation of
a catchment protection notice, operates from the day the notice or notice of
the variation is given or from such later day as the notice
specifies.
(2)
If an appeal is made against a catchment
protection notice or the variation of a catchment protection notice and the
Land and Environment Court directs that the notice is stayed, the notice or
variation does not operate until the stay ceases to have effect or the Land
and Environment Court confirms the notice or the appeal is withdrawn,
whichever first occurs.
84Fee for catchment protection
notice
(1)
The purpose of this section is to enable the
Regulatory Authority to recover the administrative costs of preparing and
giving catchment protection notices.
(2)
A person who is given a catchment protection
notice must, within 30 days after the notice is given, pay the fee prescribed
under section 94 of the Protection of the Environment
Operations Act 1997 to the Regulatory
Authority.
(3)
The Regulatory Authority may:
(a)
extend the time for payment of the fee, on the
application of the person given the notice, or
(b)
waive payment of the whole or any part of the
fee, on the Regulatory Authority’s own initiative or on the application
of the person.
(4)
The fee is not payable during the currency of an
appeal against the catchment protection notice.
(5)
If the decision of the Land and Environment Court
on an appeal does not invalidate the catchment protection notice, the fee is
payable within 30 days of the decision.
(6)
A person who does not pay the fee within the time
required under this section is guilty of an offence.
Maximum penalty: 200 penalty
units.
85Appeals against catchment
protection notices
(1)
A person served with a catchment protection
notice may, within 21 days (or such other period as is prescribed by the
regulations) after being served with the notice, appeal to the Land and
Environment Court against the notice.
(2)
The lodging of an appeal does not, except to the
extent that the Land and Environment Court otherwise directs in relation to
the appeal, operate to stay the notice appealed against.
(3)
There is no appeal against a decision not to
extend the time for complying with a catchment protection
notice.
(4)
For the purposes of this section, a catchment
protection notice includes a notice that varies a catchment
protection notice.
Subdivision 4Compliance
costs
86Compliance cost
notices
(1)
The Regulatory Authority may, by notice in
writing, require a person to whom a catchment correction notice has been given
to pay all or any reasonable costs and expenses incurred by the Regulatory
Authority in connection with:
(a)
monitoring action required to be taken by the
notice, and
(b)
ensuring that the notice is complied with,
and
(c)
any other associated
matters.
(2)
A public authority that takes corrective action
under section 78 may, by notice in writing, require:
(a)
the occupier of the land on or from which the
authority reasonably suspects that the targeted activity was carried out,
or
(b)
the person who is reasonably suspected by the
authority of having carried out the targeted
activity,
or both, to pay all or any reasonable costs and expenses
incurred by it in connection with the corrective action.
(3)
If the Regulatory Authority takes action under
section 82 because a catchment protection notice is not complied with, the
Regulatory Authority may, by notice in writing, require the person to whom the
catchment protection notice was given to pay all or any reasonable costs and
expenses incurred by the Regulatory Authority in taking the
action.
87Recovery of
amounts
(1)
The Regulatory Authority or a public authority
may recover any unpaid amounts specified in a compliance cost notice as a debt
in a court of competent jurisdiction.
(2)
If the person given a compliance cost notice
complies with the notice but was not the person who carried out the targeted
activity, the cost of complying with the notice may be recovered by the person
who complied with the notice as a debt in a court of competent jurisdiction
from the person who carried out the targeted activity.
88Registration of compliance
cost notices in relation to land
(1)
If a compliance cost notice has been given by the
Regulatory Authority or a public authority to a person, the Regulatory
Authority or the public authority may apply to the Registrar-General for
registration of the notice in relation to any land owned by the
person.
(2)
An application under this section must define the
land to which it relates.
(3)
The Registrar-General must, on application under
this section and lodgment of a copy of the compliance cost notice, register
the notice in relation to the land in such manner as the Registrar-General
thinks fit.
(4)
If the notice relates to land under the
provisions of the Real Property Act
1900, the notice is to be registered under that
Act.
89Charge on land subject to
compliance cost notice
(1)
This section applies where a compliance cost
notice is registered under section 88, on the application of the Regulatory
Authority or a public authority, in relation to particular land owned by a
person.
(2)
There is created by force of this section, on the
registration of the notice, a charge on the land in relation to which the
notice is registered to secure the payment to the Regulatory Authority or the
public authority of the amount specified in the notice.
(3)
Such a charge ceases to have effect in relation
to the land:
(a)
on payment to the Regulatory Authority or the
public authority of the amount concerned, or
(b)
on the sale or other disposition of the land with
the consent in writing of the Regulatory Authority or the public authority,
or
(c)
on the sale of the land to a purchaser in good
faith for value who, at the time of the sale, has no notice of the
charge,
whichever first occurs.
(4)
Such a charge is subject to every charge or
encumbrance to which the land was subject immediately before the notice was
registered.
(5)
Such a charge is not affected by any change of
ownership of the land, except as provided by subsection
(3).
(6)
If:
(a)
such a charge is created on land of a particular
kind and the provisions of any law of the State provide for the registration
of title to, or charges over, land of that kind, and
(b)
the charge is so
registered,
a person who purchases or otherwise acquires the land
after the registration of the charge is, for the purposes of subsection (3),
taken to have notice of the charge.
(7)
The regulations may make provision for or with
respect to the removal of a charge under this section.
(8)
The Regulatory Authority or a public authority
may, by notice in writing, require the person to whom the compliance cost
notice was given to pay all or any of the reasonable costs and expenses
incurred by the Regulatory Authority or the public authority in respect of the
lodgment or registration of the compliance cost notice and the registration of
any resulting charge (including the costs of discharging the charge). The
Regulatory Authority or the public authority may recover any unpaid amounts
specified in the notice as a debt in a court of competent
jurisdiction.
Subdivision 5General
90Multiple
notices
More than one notice under a provision of this
Division may be given to the same person.
91No fee for revocation or
variation
A fee is not payable for the variation of a
notice under this Division.
92Obstruction of
persons
A person who wilfully delays or obstructs:
(a)
a person who is carrying out any action in
compliance with a catchment correction notice or a catchment protection
notice, or another person authorised by the person to carry it out,
or
(b)
a public authority that is taking corrective
action under section 78, or any person authorised by the public authority to
take corrective action under section 78,
is guilty of an offence.
Maximum penalty:
(a)
in the case of a corporation—$250,000 and,
in the case of a continuing offence, a further penalty of $30,000 for each day
the offence continues, or
(b)
in the case of an individual—$120,000 and,
in the case of a continuing offence, a further penalty of $15,000 for each day
the offence continues.
Division 5Offences
93Illegal diversion of
water
A person must not:
(a)
wrongfully take, use or divert any water that is
available for supply by Water NSW or that is in any pipe or work used for
supply by Water NSW, or
(b)
wrongfully alter the index of a meter or prevent
a meter from duly registering the quantity of water supplied by Water
NSW.
Maximum penalty:
(a)
in the case of a corporation—$250,000 and,
in the case of a continuing offence, a further penalty of $30,000 for each day
the offence continues, or
(b)
in the case of an individual—$120,000 and,
in the case of a continuing offence, a further penalty of $15,000 for each day
the offence continues.
94Offence to discharge into
works
(1)
A person must not discharge any substance into a
work owned by or under the control of Water NSW except with the agreement in
writing of Water NSW.
Maximum penalty:
(a)
in the case of a corporation—$250,000 and,
in the case of a continuing offence, a further penalty of $30,000 for each day
the offence continues, or
(b)
in the case of an individual—$120,000 and,
in the case of a continuing offence, a further penalty of $15,000 for each day
the offence continues.
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 95.
(2)
This section does not apply to the use of a work
by a person in accordance with a contract or arrangement between Water NSW and
a person.
Division 6Executive and accessorial
liability
95Liability of directors etc for
offences by corporation—offences attracting executive
liability
(1)
For the purposes of this section, an executive
liability offence is:
(a)
an offence against any of the following
provisions of this Act that is committed by a corporation:
(i)
section 77 (5),
(ii)
section 81 (6),
(iii)
section 94 (1), or
(b)
an offence against the regulations:
(i)
that is prescribed by the regulations as an
offence to which this section applies, and
(ii)
that is committed by a
corporation.
(2)
A person commits an offence against this section
if:
(a)
a corporation commits an executive liability
offence, and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the executive liability offence,
and
(c)
the person:
(i)
knows or ought reasonably to know that the
executive liability offence (or an offence of the same type) would be or is
being committed, and
(ii)
fails to take all reasonable steps to prevent or
stop the commission of that offence.
Maximum penalty: The maximum penalty for the
executive liability offence if committed by an
individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the executive liability
offence.
(5)
This section does not affect the liability of the
corporation for the executive liability offence, and applies whether or not
the corporation is prosecuted for, or convicted of, the executive liability
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are accessories to the
commission of the executive liability offence or are otherwise concerned in,
or party to, the commission of the executive liability
offence.
(7)
In this section:
director has the same meaning it has
in the Corporations Act 2001 of the
Commonwealth.
reasonable steps, in relation to the
commission of an executive liability offence, includes, but is not limited to,
such action (if any) of the following kinds as is reasonable in all the
circumstances:
(a)
action towards:
(i)
assessing the corporation’s compliance with
the provision creating the executive liability offence,
and
(ii)
ensuring that the corporation arranged regular
professional assessments of its compliance with the
provision,
(b)
action towards ensuring that the
corporation’s employees, agents and contractors are provided with
information, training, instruction and supervision appropriate to them to
enable them to comply with the provision creating the executive liability
offence so far as the provision is relevant to them,
(c)
action towards ensuring that:
(i)
the plant, equipment and other resources,
and
(ii)
the structures, work systems and other
processes,
relevant to compliance with the provision creating the
executive liability offence are appropriate in all the
circumstances,
(d)
action towards creating and maintaining a
corporate culture that does not direct, encourage, tolerate or lead to
non-compliance with the provision creating the executive liability
offence.
96Liability of directors etc for
offences by corporation—accessory to the commission of the
offences
(1)
For the purposes of this section, a corporate offence is an offence
against this Act or the regulations that is capable of being committed by a
corporation, whether or not it is an executive liability offence referred to
in section 95.
(2)
A person commits an offence against this section
if:
(a)
a corporation commits a corporate offence,
and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the corporate offence,
and
(c)
the person:
(i)
aids, abets, counsels or procures the commission
of the corporate offence, or
(ii)
induces, whether by threats or promises or
otherwise, the commission of the corporate offence, or
(iii)
conspires with others to effect the commission of
the corporate offence, or
(iv)
is in any other way, whether by act or omission,
knowingly concerned in, or party to, the commission of the corporate
offence.
Maximum penalty: The maximum penalty for the
corporate offence if committed by an individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the corporate
offence.
(5)
This section does not affect the liability of the
corporation for the corporate offence, and applies whether or not the
corporation is prosecuted for, or convicted of, the corporate
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are concerned in, or
party to, the commission of the corporate offence.
97Persons causing
offences
(1)
A person:
(a)
who causes the commission of an offence against
this Act or the regulations, or
(b)
by whose order or direction an offence against
this Act or the regulations is committed, or
(c)
who aids, abets, counsels or procures the
commission of an offence against this Act or the
regulations,
is guilty of an offence against this Act or the
regulations and liable to a penalty in the same way as the principal
offender.
(2)
A person may be proceeded against for an offence
against subsection (1) whether or not the principal offender has been
prosecuted or convicted.
(3)
A person does not commit an offence because of
this section for any act or omission that is an offence against section
96.
Division 7Proceedings for
offences
98Continuing
offences
(1)
A person who is guilty of an offence because the
person fails to comply with a requirement made by or under this Act or the
regulations (whether the requirement is imposed by a notice or otherwise) to
do or cease to do something (whether or not within a specified period or
before a particular time):
(a)
continues, until the requirement is complied with
and despite the fact that any specified period has expired or time has passed,
to be liable to comply with the requirement, and
(b)
is guilty of a continuing offence for each day
the contravention continues.
(2)
This section does not apply to an offence if the
relevant provision of this Act or the regulations does not provide for a
penalty for a continuing offence.
(3)
This section does not apply to the extent that a
requirement of a notice is revoked.
99Onus of proof of certain
matters
In any proceedings under this Act, the onus of
proving that a person had a reasonable excuse or lawful excuse (as referred to
in any provision of this Act or the regulations) lies with the
defendant.
100Time within which proceedings
may be commenced
(1)
Proceedings for an offence against this Act or
the regulations may be commenced within but not later than 2 years after the
date on which the offence is alleged to have been
committed.
(2)
Proceedings for an offence against this Act or
the regulations may also be commenced within but not later than 2 years after
the date on which evidence of the alleged offence first came to the attention
of any relevant authorised officer.
(3)
If subsection (2) is relied on for the purpose of
commencing proceedings for an offence:
(a)
the court attendance notice must contain
particulars of the date on which evidence of the offence first came to the
attention of any relevant authorised officer and need not contain particulars
of the date on which the offence was committed, and
(b)
the date on which evidence first came to the
attention of any relevant authorised officer is the date specified in the
court attendance notice, unless the contrary is
established.
(4)
This section applies despite anything in the
Criminal Procedure Act 1986 or any other
Act.
(5)
In this section:
court
attendance notice means:
(a)
in relation to proceedings for an offence
commenced in the Local Court—a court attendance notice within the
meaning of the Criminal Procedure Act
1986 issued in respect of the person alleged to have
committed the offence, and
(b)
in relation to proceedings for an offence
commenced in the Land and Environment Court in its summary
jurisdiction—an application for an order under section 246 of the
Criminal Procedure Act 1986 in respect
of the person alleged to have committed the
offence.
evidence of an offence means
evidence of any act or omission constituting the
offence.
101Nature of proceedings for
offences
(1)
Proceedings for an offence against this Act or
the regulations may be dealt with:
(a)
summarily before the Local Court,
or
(b)
summarily before the Land and Environment
Court.
(2)
If proceedings are brought in the Local Court,
the maximum monetary penalty that the Local Court may impose for the offence
is 200 penalty units, despite any higher maximum monetary penalty provided in
respect of the offence.
102Penalty
notices
(1)
An authorised officer may serve a penalty notice
on a person if it appears to the officer that the person has:
(a)
committed an offence against this Act or the
regulations, or
(b)
committed an offence against another Act or
regulations under another Act within the Sydney catchment
area,
being an offence prescribed by the regulations as a
penalty notice offence.
(2)
A penalty notice is a notice to the effect that,
if the person served does not wish to have the matter determined by a court,
the person can pay, within the time and to the person specified in the notice,
the amount of the penalty prescribed by the regulations for the offence if
dealt with under this section.
(3)
A penalty notice under this section is declared
to be a penalty notice for the purposes of the Fines Act
1996.
(4)
A penalty notice may be served personally or by
post.
(5)
If the amount of penalty prescribed for an
alleged offence is paid under this section, no person is liable to any further
proceedings for the alleged offence.
(6)
Payment under this section is not to be regarded
as an admission of liability for the purpose of, and does not in any way
affect or prejudice, any civil claim, action or proceeding arising out of the
same occurrence.
(7)
The regulations may:
(a)
prescribe an offence for the purposes of this
section by specifying the offence or by referring to the provision creating
the offence, and
(b)
prescribe the amount of penalty payable for the
offence if dealt with under this section, and
(c)
prescribe different amounts of penalties for
different offences or classes of offences.
(8)
The amount of a penalty prescribed under this
section for an offence is not to exceed the maximum amount of penalty that
could be imposed for the offence by a court.
(9)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
103Payment of penalty does not
affect other proceedings
(1)
Prosecution or conviction of a person for an act
or omission that is an offence against this Act or the regulations does not
affect any right of Water NSW to take civil proceedings or any other action to
recover from the person:
(a)
an amount in respect of loss or damage caused by
the act or omission, or
(b)
the expenses incurred by Water NSW in remedying
the loss or damage, or
(c)
the value of water lost to Water NSW because of
the act or omission.
(2)
Payment of a penalty for an offence against this
Act or the regulations does not affect any right of Water NSW to institute any
other action or proceeding.
Division 8Evidentiary
provisions
104Evidence as to state of mind
of corporation
(1)
Without limiting any other law or practice
regarding the admissibility of evidence, evidence that an officer, employee or
agent of a corporation (while acting in his or her capacity as such) had, at
any particular time, a particular state of mind, is evidence that the
corporation had that state of mind.
(2)
In this section, the state of mind of a person
includes:
(a)
the knowledge, intention, opinion, belief or
purpose of the person, and
(b)
the person’s reasons for the intention,
opinion, belief or purpose.
105Proof of certain appointments
not required
In any proceedings under this Act, no proof is
required (until evidence is given to the contrary) of:
(a)
the appointment of the chief executive officer or
any member of the staff of Water NSW, or
(b)
the appointment of any authorised officer,
or
(c)
the appointment of a person as the Regulatory
Authority for the purposes of a provision of this
Act.
106Documentary evidence
generally
Any instrument (including a notice, order or
direction in writing) purporting:
(a)
to be an instrument issued, made or given for the
purposes of this Act, and
(b)
to have been signed by the person authorised to
issue, make or give the instrument, or by another person acting as delegate or
on behalf of the person,
is admissible in any proceedings under this Act and, in
the absence of evidence to the contrary, is to be taken to be such an
instrument and to have been so signed.
107Certificate evidence of
certain matters
(1)
A document signed by the Regulatory Authority, or
a person declared in writing by the Regulatory Authority for the purposes of
this section, and certifying any one or more of the matters specified in
subsection (2) is admissible in any proceedings under this Act and is, in the
absence of evidence to the contrary, evidence of the matters so
certified.
(2)
The matters referred to in subsection (1) are the
following:
(a)
that an instrument (including a notice, order or
direction in writing), a copy of which is set out in or annexed to the
document, being an instrument purporting:
(i)
to be issued, made or given for the purposes of
this Act, and
(ii)
to have been signed by the person authorised to
issue, make or give the instrument, or by another person acting as delegate or
on behalf of the person,
was issued, made or given on a specified
day,
(b)
that a person was or was not, at a specified time
or during a specified period, an authorised officer,
(c)
that a person was or was not, at a specified time
or during a specified period, a member of staff of Water
NSW.
108Evidence of
analysts
(1)
The Regulatory Authority may, by instrument in
writing, appoint appropriately qualified persons to be analysts for the
purposes of this Act.
(2)
A certificate of such an analyst stating the
result of an analysis or examination is admissible in evidence in any
proceedings under this Act as evidence of the facts stated in the certificate
and the correctness of the result of the analysis or
examination.
(3)
A certificate of such an analyst that, on receipt
of a container containing a sample submitted to the analyst by an authorised
officer or any other person, the container was sealed and the seal securing
the container was unbroken is admissible in evidence in any proceedings under
this Act or the regulations as evidence:
(a)
of the facts stated in the certificate,
and
(b)
that the sample was the same sample as the one
obtained by the authorised officer or other person, and
(c)
that the sample had not been tampered with before
it was received by the analyst.
(4)
For the purposes of this section, a document
purporting to be a certificate under this section is, unless the contrary is
proved, to be taken to be such a certificate.
Part 7Miscellaneous
109Revocation or variation of
notices
(1)
A notice given under this Act may be revoked or
varied by a subsequent notice or notices.
(2)
A notice may be varied by modification of, or
addition to, its terms and specifications.
(3)
Without limiting the above, a notice may be
varied by extending the time for complying with the
notice.
(4)
A notice may be revoked or varied only by the
person or body that gave it.
110Delegation by
Minister
(1)
The Minister may delegate the exercise of any
function of the Minister under this Act or the regulations (other than an
excluded function) to:
(a)
the Secretary, or any other member of staff, of
the Department, or
(b)
a public authority, or
(c)
any person, or any class of persons, authorised
for the purposes of this section by the
regulations.
(2)
Each of the following functions of the Minister
is an excluded
function:
(a)
a function under section 16 (Contravention of
operating licence),
(b)
the function of giving a direction under section
22 (Direction to enter into certain memoranda of
understanding),
(c)
the function of making an order under section 28
(Transfer of specified assets, rights and liabilities),
(d)
the function of appointing persons under section
41 (Catchment health indicators),
(e)
the function of appointing auditors under section
42 (Catchment audits),
(f)
the function of giving a direction to IPART under
section 57 (Operational and other audits),
(g)
the power of delegation under subsection
(1).
(3)
In this section, the Minister includes the portfolio
Minister.
111Tabling of certain reports in
Parliament when it is not sitting
(1)
This section applies with respect to the tabling
by the Minister of a report that the Minister is required by section 27, 42,
59 or 61 to table (or cause to be tabled) in a House of
Parliament.
(2)
If a House of Parliament is not sitting when the
Minister seeks to table the report, the Minister is to cause a copy of the
report to be presented to the Clerk of that House of
Parliament.
(3)
A report presented under subsection (2):
(a)
is, on presentation and for all purposes, taken
to have been laid before the House, and
(b)
may be printed by authority of the Clerk of the
House, and
(c)
if so printed, is taken to be a document
published by or under the authority of the House, and
(d)
is to be recorded:
(i)
in the case of the Legislative Council—in
the Minutes of the Proceedings of the Legislative Council,
and
(ii)
in the case of the Legislative Assembly—in
the Votes and Proceedings of the Legislative
Assembly,
on the first sitting day of the House after receipt of
the copy of the report by the Clerk.
(4)
In this section, the Minister includes the portfolio
Minister.
112Service of
notices
(1)
For the purposes of this Act, any notice or other
document may be issued or given to, or served on, a person:
(a)
by delivering it personally to the person,
or
(b)
by delivering it to the place of residence or
business of the person and by leaving it there for the person with some other
person, or
(c)
by posting it duly stamped and addressed to the
person at the place last shown in the records of Water NSW as the
person’s place of residence or business, or
(d)
by posting it duly stamped and addressed to the
person at the place indicated by the person as an address to which
correspondence may be posted (including, for example, a post office box),
or
(e)
by sending it by facsimile or electronic
transmission (including, for example, over the Internet) to the person in
accordance with arrangements indicated by the person as appropriate for
transmitting documents to the person, or
(f)
by leaving it addressed to the person at a
document exchange or other place (in accordance with usual arrangements for
the exchange or other place) indicated by the person as an exchange or place
through which correspondence may be forwarded to the
person.
(2)
This section does not affect any other mode of
issuing, giving or serving a notice or other document under any other
law.
113Exclusion of personal
liability
(1)
An act or omission of any of the
following:
(a)
the Minister (including when acting as the
Regulatory Authority),
(b)
the Regulatory Authority,
(c)
Water NSW or a director of Water
NSW,
(d)
an authorised officer,
(e)
a member of staff of the Department (including
the Secretary) or of Water NSW or the Regulatory
Authority,
(f)
a person acting under the direction of a person
referred to in paragraph (a), (b), (c), (d) or (e),
does not subject the Minister, a director, authorised
officer, member of staff or person so acting personally to any action,
liability, claim or demand if the act or omission was done, or omitted to be
done, in good faith for the purpose of executing this or any other
Act.
(2)
In this section, the Minister includes the portfolio
Minister.
114Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
A regulation may create an offence punishable by
a penalty not exceeding 400 penalty units in the case of a corporation or 200
penalty units in any other case.
115Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Schedule 1Transfer of assets, rights and
liabilities
1Application
This Schedule applies to:
(a)
the transfer of assets, rights or liabilities by
an order made under a provision of this Act that provides for this Schedule to
apply to the transfer (an order
transfer), and
(b)
the transfer of assets, rights or liabilities by
operation of a provision of this Act that provides for this Schedule to apply
(an automatic
transfer).
2Interpretation
(1)
In this Schedule:
assets means any legal or equitable
estate or interest (whether present or future, whether vested or contingent
and whether personal or assignable) in real or personal property of any
description (including money), and includes securities, choses in action and
documents.
instrument means an instrument
(other than this Act or an instrument made under this Act) or any other
document that creates, modifies or extinguishes rights or liabilities (or
would do so if lodged, filed or registered in accordance with any law), and
includes any judgment, order, process or other instrument issued by a court or
tribunal.
liabilities means any liabilities,
debts or obligations (whether present or future, whether vested or contingent
and whether personal or assignable).
rights means any rights, powers,
privileges or immunities (whether present or future, whether vested or
contingent and whether personal or assignable).
(2)
In this Schedule, the person or body from which
any assets, rights or liabilities are transferred is called the transferor and the person or body to
which they are transferred is called the transferee.
3Vesting of undertaking in
transferee
(1)
When any assets, rights or liabilities are
transferred by a transfer to which this Schedule applies, the following
provisions have effect:
(a)
the assets of the transferor vest in the
transferee by virtue of this clause and without the need for any further
conveyance, transfer, assignment or assurance,
(b)
the rights or liabilities of the transferor
become by virtue of this Schedule the rights or liabilities of the
transferee,
(c)
all proceedings relating to the assets, rights or
liabilities commenced before the transfer by or against the transferor or a
predecessor of the transferor and pending immediately before the transfer are
taken to be proceedings pending by or against the
transferee,
(d)
any act, matter or thing done or omitted to be
done in relation to the assets, rights or liabilities before the transfer by,
to or in respect of the transferor or a predecessor of the transferor is (to
the extent to which that act, matter or thing has any force or effect) taken
to have been done or omitted by, to or in respect of the
transferee,
(e)
the transferee has all the entitlements and
obligations of the transferor in relation to those assets, rights and
liabilities that the transferor would have had but for the transfer, whether
or not those entitlements and obligations were actual or potential at the time
the transfer took effect,
(f)
a reference in any Act, in any instrument made
under any Act or in any document of any kind to:
(i)
the transferor, or
(ii)
any predecessor of the
transferor,
to the extent to which the reference relates to those
assets, rights or liabilities, is taken to be, or include, a reference to the
transferee.
(2)
The operation of this Schedule is not to be
regarded:
(a)
as a breach of contract or confidence or
otherwise as a civil wrong, or
(b)
as a breach of any contractual provision
prohibiting, restricting or regulating the assignment or transfer of assets,
rights or liabilities, or
(c)
as giving rise to any remedy by a party to an
instrument, or as causing or permitting the termination of any instrument,
because of a change in the beneficial or legal ownership of any asset, right
or liability, or
(d)
as an event of default under any contract or
other instrument.
(3)
No attornment to the transferee by a lessee from
the transferor is required.
(4)
An order transfer is subject to the terms and
conditions of the order that gives rise to the transfer.
4No compensation
payable
(1)
No compensation is payable to any person or body
in connection with a transfer to which this Schedule applies except to the
extent (if any) to which:
(a)
in the case of an order transfer—the order
giving rise to the transfer so provides, and
(b)
in the case of an automatic transfer—the
provision of this Act that gives rise to the transfer so
provides.
(2)
Despite subclause (1), if the transferor or
transferee is a local authority, compensation may be paid in relation to any
asset or right the subject of the transfer.
(3)
Despite clause 7, the amount of any compensation
payable under subclause (2) in relation to any such asset or right is to be
determined by the Valuer-General.
5Transfer of interests in
land
(1)
In the case of an order transfer, the order that
gives rise to the transfer may transfer an interest in respect of land vested
in the transferor without transferring the whole of the interests of the
transferor in that land.
(2)
If the interest transferred is not a separate
interest, the order operates to create the interest transferred in such terms
as are specified in the order.
(3)
This clause does not limit any other provision of
this Act.
6Date of
vesting
A transfer of assets, rights or liabilities to
which this Schedule applies takes effect:
(a)
in the case of an order transfer—on the day
specified by the order that gives rise to the transfer,
and
(b)
in the case of an automatic transfer—on the
day specified by the provision of this Act that gives rise to the transfer or,
if no day is specified, on the commencement of the
provision.
7Consideration for
vesting
The portfolio Minister may, by order in writing,
specify the consideration on which a transfer to which this Schedule applies
is made and the value or values at which the assets, rights or liabilities are
transferred.
8State taxes not
chargeable
(1)
State tax is not payable in relation to:
(a)
an exempt matter, or
(b)
anything done because of, or for a purpose
connected with or arising out of, an exempt matter.
(2)
In this clause:
exempt
matter means any of the following:
(a)
the transfer of any assets, rights or liabilities
by operation of this Schedule (including, without limitation, any instrument
executed only for a purpose ancillary to or consequential on the operation of
this Schedule),
(b)
anything certified by the portfolio Minister in
writing as having been done in consequence of such a transfer (for example,
the transfer or registration of an interest in
land).
State
tax means application or registration fees, duty or any
other tax, fee or charge imposed by any legislation or other law of the
State.
9Confirmation of
vesting
(1)
The portfolio Minister may, by notice in writing,
confirm a transfer of particular assets, rights or liabilities by operation of
this Schedule.
(2)
Such a notice is conclusive evidence of that
transfer.
Schedule 2Savings, transitional and
other provisions
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
other Act that amends this Act.
(2)
If the regulations so provide, any such provision
may:
(a)
have effect despite any specified provisions of
this Act (including a provision of this Schedule), and
(b)
take effect from the date of assent to the Act
concerned or a later date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
A regulation made for the purposes of this clause
may make separate savings and transitional provisions or amend this Schedule
to consolidate the savings and transitional provisions.
Part 2Provisions consequent on
enactment of this Act
Division 1Preliminary
2Definitions
(1)
In this Part:
modification includes addition,
exception, omission or substitution.
relevant
day means the day on which section 4
commences.
repealed
Act means:
(a)
the repealed Catchment Management Act,
or
(b)
the repealed Corporation
Act.
repealed
Catchment Management Act means the Sydney
Water Catchment Management Act 1998 as in force
immediately before its repeal.
repealed
Corporation Act means the State Water
Corporation Act 2004 as in force immediately before its
repeal.
Sydney
Catchment Authority means the Sydney Catchment Authority
constituted by the repealed Catchment Management Act.
(2)
For the purposes of this Part, a provision of
this Act is a corresponding provision in relation to a provision of a repealed
Act if the provision of this Act corresponds (or substantially corresponds) to
the provision of the repealed Act.
(3)
If this Part provides for an event or other thing
to occur on the relevant day, that event or thing is taken to occur at the
beginning of that day.
Division 2Constitution of State Water
Corporation as Water NSW
3Board of Water
NSW
Each person who was an appointed director of the
board of State Water Corporation immediately before the relevant day continues
in office, on and from that day, as an appointed director of the board of
Water NSW, until the person’s term of office expires or he or she sooner
vacates office as such.
4Chief executive officer of
Water NSW
(1)
A person who held office as the chief executive
officer of State Water Corporation immediately before the relevant day
continues in office, on and from that day, as the chief executive officer of
Water NSW, until the person’s term of office expires or he or she sooner
vacates office as such.
(2)
A person who held office as the acting chief
executive officer of State Water Corporation immediately before the relevant
day continues in office, on and from that day, as the acting chief executive
officer of Water NSW, until the person’s term of office expires or he or
she sooner vacates office as such.
5Operation of section 4 not
affected
Nothing in this Division limits the operation of
section 4.
Division 3Abolition of Sydney Catchment
Authority
6Sydney Catchment Authority
abolished on relevant day
(1)
The Sydney Catchment Authority and the Sydney
Catchment Authority Board are abolished on the relevant
day.
(2)
Any person who held office as a member of the
Sydney Catchment Authority Board immediately before the relevant day ceases to
hold office as such on that day.
(3)
A person who held office as the Chief Executive
of the Sydney Catchment Authority immediately before the relevant day ceases
to hold office as such on that day.
(4)
A person who ceases to hold an office by
operation of this clause is not entitled to any remuneration or compensation
because of the loss of that office.
7Transfer of Sydney Catchment
Authority’s assets, rights and liabilities to Water
NSW
(1)
The object of this clause is to make arrangements
for the transfer to Water NSW of the assets, rights and liabilities of the
Sydney Catchment Authority on its abolition.
Note—
This clause is also intended to operate as an
arrangement of the kind referred to in section 768AD (2) of the Fair Work Act
2009 of the Commonwealth. See also clause
8.
(2)
The assets, rights and liabilities of the Sydney
Catchment Authority are transferred to Water NSW on the relevant
day.
(3)
Schedule 1 applies to the transfer of assets,
rights and liabilities by operation of this clause.
8Transfer of staff of Sydney
Catchment Authority
(1)
Without limiting section 31 of the Interpretation Act 1987, the provisions
of this clause are intended to operate concurrently with the provisions of
Part 6-3A (Transfer of business from a State public sector employer) of the
Fair
Work Act 2009 of the Commonwealth (the federal
transfer provisions).
Note—
Part 6-3A of the Fair Work Act
2009 of the Commonwealth provides that certain terms and
conditions of employment of a public sector employee are transferred when he
or she is transferred to the employment of a national system employer. A
statutory State owned corporation such as Water NSW is a national system
employer for this purpose. Section 768AD of the Fair Work Act
2009 of the Commonwealth sets out the circumstances in
which Part 6-3A of that Act will be applicable to the transfer of a public
sector employee.
(2)
The Minister may, by order in writing, transfer
the employment of a person in the Public Service under the Government Sector Employment Act 2013 (a
transferred employee) to Water NSW
if, in the Minister’s opinion, the person was employed in the Public
Service immediately before the relevant day primarily to enable the Sydney
Catchment Authority to exercise its functions.
(3)
A transfer under this clause does not require the
consent of the transferred employee.
(4)
On the day specified in the order (the transfer day):
(a)
the employment of the transferred employee in the
Public Service is terminated, and
(b)
the transferred employee becomes an employee of
Water NSW.
(5)
Without limiting any entitlements arising under
the federal transfer provisions, on and from the transfer day for a
transferred employee:
(a)
the transferred employee is entitled to continue
as a contributor, member or employee for the purposes of any superannuation
scheme in respect of which he or she was a contributor, member or employee (as
an employee in the Public Service) immediately before the transfer day and
remains so entitled subject to any variation to that entitlement made either
by agreement or otherwise in accordance with law, and
(b)
Water NSW is taken to be an employer for the
purposes of any superannuation scheme in respect of which the transferred
employee continues as a contributor, member or employee pursuant to an
entitlement under this clause, and
(c)
the continuity of the transferred
employee’s contract of employment is taken not to have been broken by
the transfer of employment, and service of the employee in the Public Service
(including service deemed to be service with Water NSW) that is continuous
service up to the time of transfer is taken for all purposes to be service
with Water NSW, and
(d)
the transferred employee retains any rights to
sick leave, annual leave or long service leave accrued or accruing immediately
before the transfer day (except accrued leave for which the employee has, on
ceasing to be employed in the Public Service, been paid the monetary value in
pursuance of any other entitlement of the
employee).
(6)
A transferred employee is not entitled in respect
of the same period of service to claim a benefit under this clause and another
law or instrument.
(7)
The Secretary of the Department may, in
connection with the transfer of a transferred employee’s employment
under this clause, give a certificate in writing as to the extent of the
accrued rights to annual leave, sick leave, extended or long service leave
that are retained by the employee under this clause, and such a certificate is
evidence of the matters certified.
(8)
In the event that the federal transfer provisions
do not apply to a transferred employee, Water NSW is nevertheless required to
provide the transferred employee with the same entitlements to which the
employee would have been entitled under those provisions had they applied to
the employee.
(9)
Nothing in this clause affects the continued
application of clause 5 of Schedule 3 to the repealed Catchment Management Act
to the determination of the entitlements of a transferred employee for the
purposes of this clause if it applied to the employee immediately before the
relevant day.
(10)
The following provisions apply in relation to the
transfer of a transferred employee’s employment under this
clause:
(a)
the transfer has effect despite the Government Sector Employment Act 2013,
Industrial Relations Act 1996 or any
other law, contract or instrument under a law,
(b)
the termination of the employee’s
employment in the Public Service by operation of this clause does not
preserve, or give rise to, any entitlements or rights other than those
provided for by the Fair Work Act 2009 of the Commonwealth
and this clause,
(c)
the transferred employee is not entitled to any
payment or other benefit by reason only of having ceased to be an employee in
the Public Service as a result of the transfer,
(d)
a public sector agency is not required to make
any payment to the transferred employee in relation to the transferred
employee’s accrued rights in respect of annual leave, sick leave or
extended or long service leave.
(11)
In this clause:
public
sector agency means any of the following:
(a)
the State (including the Crown in right of the
State),
(b)
a Minister,
(c)
the Ministerial Holding Corporation constituted
by the State Owned Corporations Act
1989,
(d)
a public authority of the
State,
(e)
any other person acting on behalf of the State
(or the Crown in right of the State).
9Sydney Catchment Management
Fund
On the relevant day:
(a)
the Sydney Catchment Management Fund, as referred
to in section 24A of the repealed Catchment Management Act, is abolished,
and
(b)
any balance standing to the credit of that Fund
becomes the money of Water NSW.
10Existing
arrangements
(1)
Any arrangement in force for the purposes of
section 21A (3) or Division 4 of Part 3 of the repealed Catchment Management
Act immediately before the relevant day is taken, on and from that day, to be
an arrangement in force for the purposes of the corresponding provisions of
this Act.
(2)
Any such arrangement:
(a)
is taken to be with Water NSW rather than the
Sydney Catchment Authority, and
(b)
may be reviewed, replaced and amended in
accordance with the provisions of this Act.
11Existing
memoranda
(1)
Any memoranda in force for the purposes of
Division 4 of Part 4 of the repealed Catchment Management Act immediately
before the relevant day is taken, on and from that day, to be memoranda in
force for the purposes of the corresponding provisions of this
Act.
(2)
Any such memoranda:
(a)
is taken to be with Water NSW rather than the
Sydney Catchment Authority, and
(b)
may be reviewed, replaced and amended in
accordance with the provisions of this Act.
Division 4Existing operating
licences
12Application of Division and
interpretation
(1)
This Division applies to the following operating
licences (existing
operating licences):
(a)
the operating licence issued to State Water
Corporation under the repealed Corporation Act as in force immediately before
the relevant day (the existing
State water operating licence), and
(b)
the operating licence issued to the Sydney
Catchment Authority under the repealed Catchment Management Act as in force
immediately before the relevant day (the existing
Sydney catchment operating
licence).
(2)
For the purposes of this Division, each of the
following listed functions of Water NSW are the Sydney
catchment functions of Water NSW, but only in such areas or
circumstances (if any) specified for the exercise of the function:
(a)
to supply water to the Sydney Water
Corporation,
(b)
to supply water to water supply authorities and
to local councils or county councils prescribed by regulations made for the
purposes of section 7 (1) (c),
(c)
to supply water to licensed network operators or
licensed retail suppliers within the meaning of the Water
Industry Competition Act 2006,
(d)
to supply water to other persons and bodies, but
under terms and conditions that prevent the person or body concerned from
supplying the water for consumption by others within the State unless the
person or body is authorised to do so by or under an Act,
(e)
to construct, maintain and operate water
management works (including providing or constructing systems or services for
supplying water) for the Sydney catchment area,
(f)
to protect and enhance the quality and quantity
of water in the Sydney catchment area,
(g)
to manage and protect the Sydney catchment area
and water management works vested in or under the control of Water NSW that
are used within or for the purposes of that area,
(h)
to undertake research on catchments generally,
and in particular on the Sydney catchment area,
(i)
to undertake an educative role within the
community concerning the Sydney catchment area,
(j)
to exercise any other function conferred or
imposed by the operating licence in connection with the Sydney catchment
area.
(3)
The water management works referred to in
subclause (2) (e) and (g) include water management works (wherever located)
that were owned, vested in or controlled by the Sydney Catchment Authority
immediately before the relevant day.
(4)
For the purposes of this Division, each of the
following listed functions of Water NSW are the non-Sydney catchment functions of
Water NSW except to the extent that the function forms part of the Sydney
catchment functions of Water NSW:
(a)
to capture and store water and to release
water:
(i)
to persons entitled to take the water, including
release to regional towns, and
(ii)
for any other lawful purpose, including the
release of environmental water,
(b)
to construct, maintain and operate water
management works (including providing or constructing systems or services for
supplying water),
(c)
to undertake flood mitigation and management in
its area of operations (other than the Sydney catchment
area),
(d)
to exercise any other function conferred or
imposed by the operating licence.
(5)
The non-Sydney catchment functions and the Sydney
catchment functions also include functions under section 7 (2) (the ancillary
functions), but only to the extent that the ancillary
functions relate to the functions that form part of the non-Sydney catchment
functions or Sydney catchment functions specified in subclause (2) or (4),
respectively.
(6)
Subject to any amendments made on or after the
relevant day, an existing operating licence that becomes an operating licence
under this Act by operation of this Division does not operate to authorise
Water NSW to exercise a listed function or ancillary function of Water NSW, or
a part of such a function, unless (and to the extent that) it forms:
(a)
in relation to the existing State water operating
licence—part of the non-Sydney catchment functions of Water NSW,
or
(b)
in relation to the existing Sydney catchment
operating licence—part of the Sydney catchment functions of Water
NSW.
13Existing State water operating
licence
(1)
On and from the relevant day, the existing State
water operating licence continues in force, subject to the modifications
specified by or under subclause (2), as an operating licence under this
Act.
(2)
The existing State water operating licence has
effect subject to the following modifications:
(a)
any reference to State Water Corporation (however
expressed) is to be read as a reference to Water NSW,
(b)
any reference to a repealed Act (or a provision
of a repealed Act) is to be read in accordance with the provisions of clause
24,
(c)
any reference to the area of operations is to be
read as a reference to the area of operations of Water NSW (but not so as to
authorise the exercise of any Sydney catchment functions of Water
NSW),
(d)
any reference to the Sydney Catchment Authority
is omitted,
(e)
the functions that the licence authorises are
limited to the non-Sydney catchment functions of Water
NSW,
(f)
any requirements concerning the carrying out of
operational audits are limited to an audit of operations carried out for the
purposes of the licence,
(g)
any reporting requirements are limited to reports
concerning operations carried out for the purposes of the
licence,
(h)
such other modifications as may be prescribed by
the regulations.
(3)
If the Minister is not the portfolio Minister,
the Minister is not to recommend the making of a regulation for the purposes
of subclause (2) (h) unless the Minister certifies that the Minister has
consulted the portfolio Minister about the proposed
modifications.
14Existing Sydney catchment
operating licence
(1)
On and from the relevant day, the existing Sydney
catchment operating licence continues in force, subject to the modifications
specified by or under subclause (2), as an operating licence under this
Act.
(2)
The existing Sydney catchment operating licence
has effect subject to the following modifications:
(a)
any reference to the Sydney Catchment Authority
(however expressed) is to be read as a reference to Water
NSW,
(b)
any reference to a repealed Act (or a provision
of a repealed Act) is to be read in accordance with the provisions of clause
24,
(c)
any reference to the area of operations is to be
read as a reference to the Sydney catchment area and any other part of the
area of operations of Water NSW with respect to which the Sydney catchment
functions of Water NSW are exercisable,
(d)
the functions that the licence authorises Water
NSW to exercise are limited to the Sydney catchment functions of Water
NSW,
(e)
any requirements concerning the carrying out of
operational audits are limited to an audit of operations carried out for the
purposes of the licence,
(f)
any reporting requirements are limited to reports
concerning operations carried out for the purposes of the
licence,
(g)
such other modifications as may be prescribed by
the regulations.
(3)
If the Minister is not the portfolio Minister,
the Minister is not to recommend the making of a regulation for the purposes
of subclause (2) (g) unless the Minister certifies that the Minister has
consulted the portfolio Minister about the proposed
modifications.
15Reissue of existing operating
licences
(1)
The Governor may, on the recommendation of the
portfolio Minister, reissue an existing operating licence as an operating
licence under this Act in the name of Water NSW (a reissued
operating licence).
(2)
A reissued operating licence must be in
substantially the same terms as the operating licence it
replaces.
(3)
A reissued operating licence is in substantially the same terms as the
operating licence only if:
(a)
the changes made to the licence are for the
purpose of giving effect to the modifications specified by or under this
Division for the licence, and
(b)
the original expiry date for the operating
licence is retained.
16Amendment etc of converted
operating licences
Nothing in this Division prevents an existing
operating licence that becomes an operating licence under this Act by
operation of this Division from being amended, renewed, cancelled and enforced
in accordance with the provisions of this Act relating to operating
licences.
Division 5Existing catchment, special
and controlled areas
17Existing Sydney catchment
area
(1)
The catchment area within the meaning of the
repealed Catchment Management Act is taken, on and from the relevant day, to
have been declared under this Act to be a declared catchment area known as the
Sydney catchment area, and may be altered accordingly.
Note—
Section 40 (3) provides that an order revoking
the declaration of the Sydney catchment area as a designated catchment area
cannot be made unless authorised by an Act of
Parliament.
(2)
The inner catchment area within the meaning of
the repealed Catchment Management Act is taken, on and from the relevant day,
to have been declared under this Act to be the inner catchment area for the
Sydney catchment area, and may be altered or revoked
accordingly.
(3)
The outer catchment area within the meaning of
the repealed Catchment Management Act is taken, on and from the relevant day,
to have been declared under this Act to be the outer catchment area for the
Sydney catchment area, and may be altered or revoked
accordingly.
18Existing special
areas
(1)
An area of land that was a special area within
the meaning of the repealed Catchment Management Act immediately before the
relevant day is taken, on and from that day, to have been declared under this
Act to be a special area, and may be altered or revoked
accordingly.
(2)
A plan of management in force for the purposes of
section 49 of the repealed Catchment Management Act immediately before the
relevant day is taken, on and from that day, to be a plan of management in
force for the purposes of the corresponding provisions of this
Act.
(3)
Any such plan of management may be reviewed,
replaced and amended in accordance with the provisions of this
Act.
19Existing controlled
areas
An area of land that was a controlled area within
the meaning of the repealed Catchment Management Act immediately before the
relevant day is taken, on and from that day, to have been declared under this
Act to be a controlled area, and may be altered or revoked
accordingly.
Division 6Miscellaneous
20Existing authorised
officers
(1)
A person who held office as an authorised officer
under a repealed Act immediately before the relevant day ceases to hold office
as such on that day.
(2)
A person who ceases to hold an office by
operation of this clause is not entitled to any remuneration or compensation
because of the loss of that office.
21Existing
notices
(1)
Subject to the regulations, this clause applies
to a notice given under a provision of a repealed Act in force immediately
before the relevant day that:
(a)
required a person to do, or not to do, things
specified in the notice, and
(b)
had not yet been complied with by that
day.
(2)
A notice to which this clause applies is taken to
have been given under the corresponding provision (if any) of this Act, and
may be varied, revoked and enforced accordingly.
22Exercise of existing
regulatory functions
(1)
This clause applies to each of the following
functions (an existing
regulatory function):
(a)
a function conferred or imposed on the Sydney
Catchment Authority as referred to in section 17, 19 or 61 of the repealed
Catchment Management Act,
(b)
a function conferred or imposed on the Sydney
Catchment Authority by Division 2 of Part 5 of the repealed Catchment
Management Act,
(c)
a function conferred or imposed on the Sydney
Catchment Authority by Part 6A or 6B of the repealed Catchment Management
Act,
(d)
a function conferred or imposed on the Sydney
Catchment Authority by section 69 of the repealed Catchment Management
Act,
(e)
any other function of the Sydney Catchment
Authority prescribed by the regulations.
(2)
An existing regulatory function of the Sydney
Catchment Authority that became exercisable before (but which had not yet been
exercised by) the relevant day becomes, on and from that day, a function of
the Regulatory Authority instead of the Sydney Catchment Authority, and is
exercisable accordingly.
23Sydney Water Catchment Management Regulation
2013
On and from the relevant day, the Sydney Water Catchment Management Regulation
2013 (as in force immediately before that day) is taken to
be a regulation under this Act, and may be amended and repealed
accordingly.
Note—
Schedule 3, as originally enacted, renamed the
Sydney Water Catchment Management
Regulation 2013 as the Water NSW Regulation
2013 and made various other amendments consequential on it
becoming a regulation under this Act.
24Updating of references to
repealed Acts and former corporations
(1)
This clause applies in relation to:
(a)
a provision of any other Act or any instrument
made under any other Act (a legislative provision),
and
(b)
a provision of any other instrument or document
(a non-legislative
provision).
(2)
On and from the relevant day (and except as
otherwise provided by or under this clause):
(a)
subject to paragraph (b), a reference in a
legislative provision to a repealed Act is to be read as a reference to this
Act, and
(b)
a reference in a legislative provision to a
provision of a repealed Act is to be read as a reference to the corresponding
provision (if any) of this Act, and
(c)
a reference in a legislative provision to State
Water Corporation or the Sydney Catchment Authority is to be read as a
reference to:
(i)
in the case of a provision that confers or
imposes an existing regulatory function (within the meaning of clause
22)—the Regulatory Authority, and
(ii)
in any other case—Water
NSW.
(3)
However, subclause (2) does not apply to any of
the following:
(a)
a legislative provision that contains a reference
to which that subclause would otherwise have applied if that reference was
inserted or substituted by, or retained despite, an amendment made to the
provision by this Act,
(b)
a spent savings or transitional legislative
provision,
(c)
a provision of State
Environmental Planning Policy (Western Sydney Employment Area)
2009,
(d)
a provision of an Act that amends a repealed
Act,
(e)
a legislative provision (or a legislative
provision belonging to a class of such provisions) prescribed by the
regulations.
(4)
The regulations may make provision for or with
respect to the updating of references to a repealed Act (or a provision of a
repealed Act) or State Water Corporation or the Sydney Catchment Authority
in:
(a)
a legislative provision to which subclause (2)
does not apply, and
(b)
a non-legislative
provision.
(5)
Subject to this Part and the regulations, the
provisions of this clause extend to a provision of an instrument made under a
repealed Act that is continued in force or effect under this Act by this Part
in the same way as they apply to legislative provisions.
25Amendments by proposed Water Industry Competition Amendment (Review) Act
2014
(1)
The following provisions apply if the proposed
Water Industry Competition Amendment (Review) Act
2014 is enacted:
(a)
if Schedule 2 to the proposed Act commences on or
before the commencement of this clause—section 7 (1) (d) of this Act and
clause 12 (2) (c) of this Schedule are each amended on the commencement of
this clause by omitting “licensed network operators or licensed retail
suppliers” and by inserting instead “licensed operators or
licensed retailers”,
(b)
if Schedule 2 to the proposed Act commences after
the commencement of this clause—section 7 (1) (d) of this Act and clause
12 (2) (c) of this Schedule are each amended on the commencement of that
Schedule by omitting “licensed network operators or licensed retail
suppliers” and by inserting instead “licensed operators or
licensed retailers”,
(c)
if the proposed Act substitutes the definition of
public
water utility in the Dictionary to the Water
Industry Competition Act 2006 on or before the
commencement of this clause—on the commencement of this clause:
(i)
Schedule 3.42 [2] to this Act is omitted,
and
(ii)
the definition of public
water utility in the Dictionary to the Water
Industry Competition Act 2006 is amended by omitting the
matter relating to State Water Corporation and the Sydney Catchment Authority
and by inserting instead the alternative amendment,
(d)
if the proposed Act substitutes the definition of
public
water utility in the Dictionary to the Water
Industry Competition Act 2006 after the commencement of
this clause—on the commencement of the substitution of the definition of
public
water utility in the Dictionary to the Water
Industry Competition Act 2006 is amended by omitting the
matter relating to State Water Corporation and the Sydney Catchment Authority
and by inserting instead the alternative amendment.
(2)
The following is the alternative amendment for the
purposes of subclause (1) (c) (ii) and (d):
Water
NSW
Water NSW Act 2014
its area of
operations under section 15 of its Act
26Transferred
easements
For the purposes of any easement the benefit of
which is transferred to Water NSW by or under this Act, Water NSW is taken to
be a body representing the Crown.
27Repeal of section 3A of
Sydney Water Act
1994
The repeal of section 3A (Sydney
Water Catchment Management Act 1998) of the Sydney Water Act 1994 by this Act does
not affect the validity or efficacy of:
(a)
any amendments made to an operating licence (or
any substitution of an operating licence) under the authority of that section
before its repeal, or
(b)
the divesting or transfer of any functions of the
Sydney Water Corporation by operation of that section before its
repeal.
28General savings
provision
Subject to this Part and the regulations,
anything done under or for the purposes of a provision of a repealed Act is,
to the extent that the thing has effect immediately before the repeal of the
provision, taken to have been done under or for the purposes of the
corresponding provision (if any) of this Act.
Schedule 3Amendment of
legislation
3.1Blue
Mountains Local Environmental Plan
2005
[1]Clause 48 Protected
Area—Water Supply Catchment
Omit “Sydney Catchment Authority”
from clause 48 (1).
Insert instead “Regulatory Authority
(within the meaning of the Water NSW Act
2014)”.
[2]Clause 94 General provision of
services
Omit “Sydney Catchment Authority”
from clause 94 (3).
Insert instead “Regulatory Authority
(within the meaning of the Water NSW Act
2014)”.
3.2Civil Liability Regulation
2014
Clause
4A
Insert after clause 4:
4AWater
NSW
Water NSW is prescribed as an authority to which
Part 5 of the Act applies in respect of any function of Water NSW exercised by
or on behalf of Water NSW in the Sydney catchment area (within the meaning of
the Water NSW Act
2014).
3.3Conveyancing (General) Regulation
2013
[1]Clause 49 Easements in
gross
Omit “State Water Corporation” from
clause 49 (1) (t). Insert instead “Water
NSW”.
[2]Clause 50 Imposition of
restrictions or public positive covenants on certain land vested in prescribed
authorities
Omit “State Water Corporation” from
clause 50 (g). Insert instead “Water NSW”.
[3]Clause 51 Regulation of use of
land not held by a prescribed authority
Omit “State Water Corporation” from
clause 51 (g). Insert instead “Water NSW”.
3.4Criminal Procedure Regulation
2010
Schedule 2A NSW Government
agencies and statutory bodies required to pay court fees
Omit “Sydney Catchment
Authority”.
3.5Dams
Safety Act 1978 No 96
[1]Section 8
Members
Omit section 8 (2) (b) and (c). Insert
instead:
(b)
2 persons nominated by Water
NSW,
[2]Section 8
(6)
Insert after section 8 (5):
(6)
A person who held office as a member of the
Committee based on a nomination under subsection (1) (b) or (c), as in force
before the amendment of this section by the Water NSW Act
2014, continues to hold office as such despite that
amendment until he or she vacates office under this Act.
3.6Dividing Fences Act 1991 No
72
Section 25 Application of Act
to Crown and local authorities etc
Insert at the end of section 25 (1) (e):
, or
(f)
Water NSW, but only with respect to the exercise
of its functions in the Sydney catchment area (within the meaning of the
Water NSW Act
2014).
3.7Environmental Planning and Assessment Act 1979 No
203
[1]Section 34B Special provision
for development in Sydney water catchment relating to water
quality
Omit section 34B (1). Insert instead:
(1)
In this section, Sydney
drinking water catchment means a declared catchment area
(within the meaning of the Water NSW Act
2014) that is declared by a State environmental planning
policy to be the Sydney drinking water catchment.
[2]Section 34B (4)
(a)
Omit “Sydney Water
Catchment Management Act 1998”.
Insert instead “Water
NSW Act 2014”.
3.8Environmental Planning and Assessment Regulation
2000
Schedule 3 Designated
development
Omit paragraph (a) (i) from the definition of
drinking
water catchment in clause 38.
Insert instead:
(i)
a declared catchment area within the meaning of
the Water NSW Act 2014,
and
3.9Fines
Act 1996 No 99
Schedule 1 Statutory
provisions under which penalty notices issued
Omit “Sydney Water
Catchment Management Act 1998, section
65”.
3.10First
State Superannuation Act 1992 No 100
Schedule 1
Employers
Omit “Sydney Catchment Authority” and
“State Water Corporation”.
Insert at the end of the Schedule:
Water NSW
3.11Government Sector Employment Regulation
2014
Clause 5 Statutory bodies
included as part of the government sector for certain
purposes
Omit “State Water Corporation” from
clause 5 (3) (b). Insert instead “Water
NSW”.
3.12Impounding Act 1993 No
31
[1]Dictionary
Omit “Sydney Catchment Authority, any
special area or controlled area (as defined in the Sydney
Water Catchment Management Act 1998)” from the
definition of area of
operations.
Insert instead “Regulatory Authority within
the meaning of the Water NSW Act
2014, any special or controlled area (as defined in that
Act)”.
[2]Dictionary, definition of
“impounding authority”
Omit “Sydney Catchment
Authority”.
Insert instead “Regulatory Authority within
the meaning of the Water NSW Act
2014”.
3.13Independent Pricing and Regulatory Tribunal Act
1992 No 39
[1]Section 4 Government monopoly
services
Omit section 4 (7). Insert instead:
(7)
To avoid doubt, the services for which fees and
charges are payable under the Water NSW Act
2014 are capable of being declared to be government
monopoly services. Water NSW is taken to be the supplier of any such
service.
[2]Section 24F Regulatory
functions of Tribunal
Omit section 24F (e) and (f). Insert
instead:
(e)
section 56 of the Water NSW Act
2014, and
[3]Section 24FC Licence auditing
functions of Tribunal
Omit section 24FC (1) (d) and (e). Insert
instead:
(d)
its functions in connection with operational
audits under the Water NSW Act
2014, and
[4]Schedule 1 Government agencies
for which Tribunal has standing reference
Omit “Sydney Catchment Authority” and
“State Water Corporation”.
Insert at the end of the Schedule:
Water NSW
3.14Land
and Environment Court Act 1979 No
204
[1]Section 17 Class
1—environmental planning and protection appeals
Omit section 17 (aa). Insert instead:
(aa)
appeals under section 85 of the Water NSW Act
2014,
[2]Section 21 Class
5—environmental planning and protection summary
enforcement
Omit section 21 (a1). Insert instead:
(a1)
proceedings under section 67, 70, 71, 73, 74, 77,
80, 81, 84, 92, 93 or 94 of the Water NSW Act
2014 or offences under regulations made under that
Act,
3.15Law
Enforcement (Powers and Responsibilities) Act 2002 No
103
Schedule 2 Search warrants
under other Acts
Insert in alphabetical order:
Water NSW Act
2014, section 69
3.16Liverpool Local Environmental Plan
2008
Clause 3.2 Complying
development
Omit “Sydney Water
Catchment Management Act 1998” from clause 3.2 (3A)
(f) (vii).
Insert instead “Water
NSW Act 2014”.
3.17Local
Government Act 1993 No 30
[1]Section 555 What land is
exempt from all rates?
Omit “State Water Corporation” from
section 555 (1) (c2). Insert instead “Water
NSW”.
[2]Section 611 Annual charge on
rails, pipes etc
Omit “State Water Corporation” from
section 611 (6) (b). Insert instead “Water
NSW”.
[3]Section 733 Exemption from
liability—flood liable land, land subject to risk of bush fire and land
in coastal zone
Insert at the end of section 733 (7) (d):
and
(e)
Water NSW, but only with respect to the exercise
of its functions in the Sydney catchment area (within the meaning of the
Water NSW Act
2014),
[4]Section 741 Exemption from
taxes
Omit “State Water Corporation” from
section 741 (2) (d). Insert instead “Water
NSW”.
3.18Local Land Services Regulation
2014
Clause 40 Collection etc of
catchment contributions on behalf of Local Land Services
Omit “the State Water Corporation”
from paragraph (b) of the definition of appropriate local agency in clause
40 (1).
Insert instead “Water
NSW”.
3.19Mining Regulation
2010
Clause 61 Use of information
and protected documents
Omit clause 61 (2) (k). Insert instead:
(k)
Regulatory Authority (within the meaning of the
Water NSW Act
2014),
3.20Mulwaree Local Environmental Plan
1995
Clause 5
Interpretation
Omit the definition of Sydney
Catchment Authority from clause 5
(1).
3.21National Parks and Wildlife Act 1974 No
80
[1]Section 74 Catchment areas and
special areas—generally
Insert at the end of section 74 (2) (b):
, and
(c)
also refer the plan to the Regulatory Authority
(within the meaning of the Water NSW Act
2014) if the relevant water authority is Water
NSW.
[2]Section 74
(3)
Omit “the relevant water authority and (in
a case involving the Hunter Water Corporation) the Director-General of the
Department of Land and Water Conservation”.
Insert instead “a person to whom or which
the plan has been referred under subsection (2)”.
[3]Section 74
(4)
Omit “the Sydney Catchment
Authority”. Insert instead “Water
NSW”.
3.22Pipelines Act 1967 No
90
Section 3
Definitions
Omit “State Water Corporation” from
paragraph (a) of the definition of public
authority in section 3 (1).
Insert instead “Water
NSW”.
3.23Protection of the Environment Operations (General)
Regulation 2009
Clause 81 Enforcement
officers
Omit “Sydney Catchment Authority”
from clause 81 (6) (m).
Insert instead “Regulatory Authority within
the meaning of the Water NSW Act
2014”.
3.24Public
Finance and Audit Act 1983 No 152
Schedule 2 Statutory
bodies
Omit “Sydney Catchment
Authority”.
3.25Public Finance and Audit Regulation
2010
Clause 16 Statutory
authorities to pay dividends to Consolidated Fund
Omit “State Water Corporation” from
clause 16 (h). Insert instead “Water NSW”.
3.26Roads Regulation
2008
Clause 83 Public
authorities
Omit “State Water Corporation” from
clause 83 (c). Insert instead “Water NSW”.
3.27State
Authorities Non-contributory Superannuation Act 1987 No
212
Schedule 1
Employers
Omit “Sydney Catchment Authority” and
“State Water Corporation” from Part 1.
Insert at the end of the Part:
Water NSW
3.28State
Authorities Superannuation Act 1987 No
211
Schedule 1
Employers
Omit “Sydney Catchment Authority” and
“State Water Corporation” from Part 1.
Insert at the end of the Part:
Water NSW
3.29State
Environmental Planning Policy (Exempt and Complying Development Codes)
2008
Clause 1.19 Land on which
complying development may not be carried out
Omit “Sydney Water
Catchment Management Act 1998” from clause 1.19 (1)
(i).
Insert instead “Water
NSW Act 2014”.
3.30State
Environmental Planning Policy (Infrastructure)
2007
[1]Clause 96 Development
permitted with consent
Omit “Sydney Water
Catchment Management Act 1998” from clause 96
(1).
Insert instead “Water
NSW Act 2014”.
[2]Clause 125 Development
permitted without consent
Omit “the Sydney Catchment Authority”
from clause 125 (6).
Insert instead “Water
NSW”.
[3]Clause 125 (6)
(b)
Omit “Sydney Catchment Authority’s
area of operations under the Sydney Water
Catchment Management Act 1998”.
Insert instead “Sydney catchment area
within the meaning of the Water NSW Act
2014”.
3.31State
Environmental Planning Policy (Mining, Petroleum Production and Extractive
Industries) 2007
Clause 11 Complying
development
Omit “Sydney Water
Catchment Management Regulation 2008” from clause 11
(1) (b).
Insert instead “Water NSW Regulation
2013”.
3.32State
Environmental Planning Policy (Sydney Drinking Water Catchment)
2011
[1]Clause 3 Aims of
Policy
Omit the note to the
clause.
[2]Clause 4
Definitions
Omit the definition of Authority from clause 4
(1).
[3]Clause 4 (1), definition of
“Chief Executive”
Omit the definition.
[4]Clause 4 (1), definition of
“NorBE Guideline”
Omit “Authority”. Insert instead
“former Sydney Catchment Authority”.
[5]Clause 4 (1), definition of
“NorBE Tool”
Omit the note to the
definition.
[6]Clause 4 (1), definition of
“Regulatory Authority”
Insert in alphabetical order:
Regulatory Authority has the same
meaning as in the Water NSW Act
2014.
[7]Clause 4
(2)
Omit “the
Authority’s” and “the
Authority”.
Insert instead “Water NSW’s” and
“Water NSW”, respectively.
[8]Clause 9 Recommended practices
and performance standards of Water NSW
Omit “the Authority’s”,
“The Authority” and “the Authority” wherever
occurring.
Insert instead “Water NSW’s”,
“Water NSW” and “Water NSW”,
respectively.
[9]Clause 11 Development that
needs concurrence of Regulatory Authority
Omit “Chief Executive” wherever
occurring.
Insert instead “Regulatory
Authority”.
[10]Clause 11
(2)
Omit “the Authority’s” wherever
occurring. Insert instead “Water
NSW’s”.
3.33State
Environmental Planning Policy (Western Sydney Parklands)
2009
Clause 13 Bulk water supply
infrastructure not to be impacted
Omit “the Sydney Catchment Authority”
from clause 13 (d). Insert instead “Water
NSW”.
3.34State
Owned Corporations Act 1989 No 134
Schedule 5 Statutory
SOCs
Omit “State Water Corporation”.
Insert instead “Water NSW”.
3.35Superannuation Act 1916 No
28
Schedule 3 List of
employers
Omit “Sydney Catchment Authority” and
“State Water Corporation” from Part 1.
Insert at the end of the Part:
Water NSW
3.36Sutherland Shire Local Environmental Plan
2006
Clause 11 Zoning
Table
Omit “Sydney Water
Catchment Management Act 1998” from item 2 of the
matter relating to Zone 18.
Insert instead “Water
NSW Act 2014”.
3.37Sydney
Water Act 1994 No 88
Section 3A Sydney Water Catchment Management Act
1998
Omit the section.
3.38Sydney Water Catchment Management Regulation
2013
[1]Clause 1 Name of
Regulation
Omit “Sydney Water
Catchment Management Regulation
2013”.
Insert instead “Water NSW Regulation
2013”.
[2]Clause 3
Definitions
Omit “SCA land” from paragraph (a) of
the definition of private
land in clause 3 (1).
Insert instead “Water NSW
land”.
[3]Clause 3
(1)
Omit the definitions of SCA land and the Act.
Insert in alphabetical order:
the
Act means the Water NSW Act
2014.
Water NSW
land means land owned by or vested in Water
NSW.
[4]Part 2,
heading
Omit “SCA”. Insert instead
“Regulatory Authority”.
[5]Clause 4 Regulatory Authority
may exercise powers of EPA and other regulatory
authorities
Omit “SCA” wherever occurring. Insert
instead “Regulatory Authority”.
[6]Clause 4 (2) and
(3)
Omit “catchment area” wherever
occurring. Insert instead “declared catchment
area”.
[7]Clause 4 (6)
(c)
Omit “Sydney Water
Catchment Management Act 1998”.
Insert instead “Water
NSW Act 2014”.
[8]Clause 5 Purposes for which
functions may be exercised
Omit “SCA” and “catchment
areas” wherever occurring.
Insert instead “Regulatory Authority”
and “declared catchment areas”,
respectively.
[9]Clause 6
Omit the clause. Insert instead:
6Limitations on Regulatory
Authority’s functions
(1)
The Regulatory Authority may not exercise the
functions of a regulatory authority in relation to the following:
(a)
premises defined in an environment protection
licence as the premises to which the licence applies, and all activities
carried on at those premises,
(b)
non-scheduled activities that are authorised or
controlled by an environment protection licence.
Note—
The appropriate regulatory authority in respect
of the activities listed in this clause will generally be the
EPA.
(2)
The Regulatory Authority may not exercise the
functions of a regulatory authority in relation to the activities of Water NSW
if the Regulatory Authority for those functions is Water
NSW.
[10]Clause 7 Inconsistency with
directions given by other regulatory authorities
Omit “SCA” wherever occurring. Insert
instead “Regulatory Authority”.
[11]Clause 8 Regulatory Authority
to keep register
Omit “SCA” wherever occurring. Insert
instead “Regulatory Authority”.
[12]Clause 8
(1A)
Insert after clause 8 (1):
(1A)
The register is also to continue to include any
details, results or other matters that were included in the register by the
Sydney Catchment Authority before its abolition.
[13]Part 3, Division 1,
heading
Omit “SCA”. Insert instead
“Water NSW”.
[14]Clause 9 Water NSW’s
consent
Omit “the SCA” wherever occurring.
Insert instead “Water NSW”.
[15]Clause 10 Manner of
consent
Omit “The SCA” from clause 10 (1).
Insert instead “Water NSW”.
[16]Clauses 12 (1) (a), 14, 15
(1), 16 (1), 17 (1), 18 (1), 19 (1), 20, 23 (1) (a) (iii) and
29
Omit “The SCA”, “the
SCA”, “SCA land” and “the SCA’s” wherever
occurring.
Insert instead “Water NSW”,
“Water NSW”, “Water NSW land” and “Water
NSW’s” respectively.
[17]Clause 13 Control of pollution
in special areas and controlled areas
Omit “SCA” wherever occurring in
clause 13 (4). Insert instead “Regulatory
Authority”.
[18]Part 3, Division 3,
heading
Omit “SCA”. Insert instead
“Water NSW”.
[19]Part 3, Division 6,
heading
Omit “SCA”. Insert instead
“Water NSW”.
[20]Clause 30 Notice by public
agencies
Omit “SCA” and “section 47
(1)” wherever occurring.
Insert instead “Regulatory Authority”
and “section 50 (1)”, respectively.
[21]Clause 31 Exercise of
functions conferred by this Regulation
Omit “SCA” wherever occurring. Insert
instead “Regulatory Authority”.
[22]Clause 32 Prescribed local
councils
Omit “section 16 (1) (b)”. Insert
instead “section 7 (1) (c)”.
[23]Clause 33 Fees chargeable by
Water NSW for water supplied
Omit “the SCA” from clause 33 (1).
Insert instead “Water NSW”.
[24]Clause 33 (1)
(a)
Omit “section 16 (1) (b)”. Insert
instead “section 7 (1) (c)”.
[25]Clause 33 (1)
(b)
Omit “section 16 (1) (b1)”. Insert
instead “section 7 (1) (d)”.
[26]Clause 33 (1)
(c)
Omit “section 16 (1) (c)”. Insert
instead “section 7 (1) (e)”.
[27]Clause 33
(2)
Omit “section 24E” and
“chargeable by the SCA”.
Insert instead “section 39” and
“chargeable by Water NSW in connection with the Sydney catchment
functions of Water NSW”, respectively.
[28]Clause 33
(3)
Omit “The SCA”. Insert instead
“Water NSW”.
[29]Clause 33
(4)
Insert after clause 33 (3):
(4)
In this clause, Sydney
catchment functions of Water NSW has the same meaning as in
Division 4 of Schedule 2 to the Act.
[30]Clause 34 Penalty
notices
Omit “section 65”. Insert instead
“section 102”.
[31]Clause 34,
note
Omit the note. Insert instead:
Note—
The Protection of the
Environment Operations (General) Regulation 2009 provides
that a member of staff of the Regulatory Authority may issue a penalty notice
in respect of a number of offences under the Protection of the
Environment Operations Act 1997 including sections 120
(Prohibition of pollution of waters), 143 (Unlawful transporting or depositing
of waste) and 144 (Use of place as waste facility without lawful
authority).
[32]Schedule 1 Schedule 1
land
Omit “office of the SCA” and
“SCA land” wherever occurring.
Insert instead “office of Water NSW”
and “Water NSW land”, respectively.
[33]Schedule
3
Omit the Schedule. Insert instead:
Schedule 3Penalty notice
offences
Offences under the
Act
Column
1
Column
2
Column
3
Offence
Penalty
(Individual)
Penalty
(Corporation)
Section 36
(3) (b)
$750
$1,500
Section 70
(4)
$750
$1,500
Section 71
(2)
$750
$1,500
Section 73
(4)
$750
$1,500
Section 74
(2)
$750
$1,500
Section 77
(5)
$750
$1,500
Section 80
(4)
$750
$1,500
Section 81
(6)
$750
$1,500
Section 84
(6)
$750
$1,500
Section
93
$750
$1,500
Section
94
$750
$1,500
Offences under this
Regulation
Column
1
Column
2
Column
3
Offence
Penalty
(Individual)
Penalty
(Corporation)
Clause 9
(2)
$750
$1,500
Clause 12
(1)
$750
$1,500
Clause 13
(1), (3) or (4)
$750
$1,500
Clause 14
(1)
$750
$1,500
Clause 15
(2)
$750
$1,500
Clause 16
(2)
$750
$1,500
Clause 17
(2)
$750
$1,500
Clause 18
(2)
$750
$1,500
Clause 19
(1) or (4)
$750
$1,500
Clause 22
(1) (a)
$300
$1,000
Clause 22
(1) (b), (c) or (d)
$750
$1,500
Clause 23
(1) or (2)
$750
$1,000
Clause 24
(1)
$750
$1,500
Clause 25
(1), (2) or (3)
$750
$1,500
Clause 26
(1)
$750
$1,500
Clause 27
(1)
$750
$1,500
Clause 28
(2) or (3)
$750
$1,500
Clause
29
$750
$1,500
3.39Tallaganda Local Environmental Plan
1991
[1]Clause 5
Interpretation
Omit the definition of Sydney
Catchment Authority from clause 5
(1).
[2]Clause 5 (1), definition of
“Regulatory Authority”
Insert in alphabetical order:
Regulatory Authority has the same
meaning as in the Water NSW Act
2014.
[3]Schedule 7,
heading
Omit “the Sydney Catchment
Authority”.
Insert instead “the Regulatory
Authority”.
3.40Upper
Lachlan Local Environmental Plan
2010
Clause 3.3 Environmentally
sensitive areas excluded
Omit “Sydney Water
Catchment Management Act 1998” from paragraph (jb)
of the definition of environmentally sensitive area for exempt or complying
development in clause 3.3 (2).
Insert instead “Water
NSW Act 2014”.
3.41Water
Act 1912 No 44
Schedule 3 Water management
authorities
Omit “Sydney Catchment Authority” and
“State Water Corporation”.
Insert at the end of the Schedule:
Water NSW
3.42Water
Industry Competition Act 2006 No 104
[1]Section 64 Ownership of water
industry infrastructure
Omit the note to section 64 (1). Insert
instead:
Note—
Examples of provisions of other Acts that
expressly provide for the ownership of water industry infrastructure by
certain public water utilities include the following:
(a)
section 19 of the Hunter Water Act
1991,
(b)
section 37 of the Sydney Water Act
1994,
(c)
section 29 of the Water NSW Act
2014.
[2]Dictionary
Omit paragraphs (a) and (b) of the definition of
public
water utility. Insert instead:
(a)
Water NSW, or
3.43Water
Management Act 2000 No 92
[1]Section 16 Management plans to
be consistent with other instruments
Omit “Sydney Water
Catchment Management Act 1998” from section 16 (1)
(d).
Insert instead “Water
NSW Act 2014”.
[2]Section 91K Meter
tampering
Omit “the State Water Corporation”
from section 91K (4) (a). Insert instead “Water
NSW”.
[3]Section 91K (4)
(b)
Omit “the State Water Corporation under
this Act or the State Water Corporation Act
2004”.
Insert instead “Water NSW or the Water NSW Act
2014”.
[4]Section 91N Corporations not
required to hold approvals
Omit “the State Water Corporation”.
Insert instead “Water NSW”.
[5]Section 386E Constructing
Authority for NSW
Omit “the State Water Corporation
constituted under the State Water Corporation Act
2004” from section 386E (1).
Insert instead “Water
NSW”.
[6]Section 398 Exclusion of Crown
liability
Omit “State Water
Corporation Act 2004” wherever occurring in section
398 (1) and (2).
Insert instead “Water
NSW Act 2014”.
[7]Section 398 (3)
(c)
Omit “State Water Corporation”.
Insert instead “Water NSW”.
[8]Schedule 2 Major
utilities
Omit “State Water Corporation” and
“Sydney Catchment Authority”.
Insert in alphabetical order:
Water NSW
[9]Schedule 3 Water supply
authorities
Omit the matter relating to State Water
Corporation from Part 3.
Insert instead:
Water NSW (but only in relation to the Fish River
water supply scheme within the meaning of the Water NSW Act
2014)
3.44Water Management (General) Regulation
2011
[1]Clause 35 Exemptions relating
only to use of water supply works
Omit “State Water Corporation” and
“that Corporation” from clause 35 (d).
Insert instead “Water NSW” and
“Water NSW or the Ministerial Corporation”,
respectively.
[2]Clause 112 Water
NSW—Fish River water supply scheme
Omit “State Water
Corporation’s” and “State Water Corporation” wherever
occurring (other than in State Water Corporation Act 2014) in
clause 112 (1) and (2).
Insert instead “Water NSW’s”
and “Water NSW”, respectively.
[3]Clause 112
(1)
Omit “State Water
Corporation Act 2004”. Insert instead “Water NSW Act
2014”.
[4]Clause 117
Application
Omit “State Water Corporation” from
clause 117 (e). Insert instead “Water NSW”.
[5]Clause 188
Application
Omit “State Water Corporation” from
clause 188 (e). Insert instead “Water NSW”.
[6]Schedule 5
Exemptions
Omit “State Water Corporation” and
“that Corporation” from clause 11.
Insert instead “Water NSW” and
“Water NSW or the Ministerial Corporation”,
respectively.
3.45Water Management (River Murray Traffic) Regulation
2011
Clause 3
Definitions
Omit paragraph (a) of the definition of relevant
Authority in clause 3 (1).
Insert instead:
(a)
Water NSW, or
3.46Water Sharing Plan for the Barwon-Darling Unregulated and
Alluvial Water Sources 2012
Clause 52 Individual daily
extraction limits
Omit “State Water
Corporation’s” from clause 52 (2). Insert instead “Water
NSW’s”.
3.47Water Sharing Plan for the Greater Metropolitan Region
Groundwater Sources 2011
[1]Clause 23 Share components of
major utility access licences
Omit the note to the
clause.
[2]Clause 64
Other
Omit “Sydney Catchment Authority”
from clause 64 (2). Insert instead “Water
NSW”.
3.48Water Sharing Plan for the Greater Metropolitan Region
Unregulated River Water Sources 2011
[1]Clause 26 Share components of
major utility access licences
Omit “for the Sydney Catchment
Authority” and “for Sydney Catchment Authority” wherever
occurring.
Insert instead “for Water
NSW”.
[2]Clause 28 Environmental flow
releases in the Shoalhaven River Water Source
Omit “the Sydney Catchment Authority”
from item 1 of the notes to clause 28 (2).
Insert instead “Water
NSW”.
[3]Clause 29 Releases for
Shoalhaven City Council from Tallowa Dam in the Shoalhaven River Water
Source
Omit clause 29 (1). Insert instead:
(1)
In the Shoalhaven River Water Source, Water NSW
must release from Tallowa Dam the water requirements of Shoalhaven City
Council in accordance with the former Sydney Catchment Authority and
Shoalhaven City Council Raw Water Supply Protocols signed on 5 February 2010
or as subsequently replaced or amended.
Note—
The former Sydney Catchment Authority and
Shoalhaven City Council Raw Water Supply Protocols were signed on 5 February
2010 and established the commercial and operational arrangements under which
the Sydney Catchment Authority supplies bulk raw water to the Shoalhaven City
Council. Water NSW replaced the Sydney Catchment Authority on the commencement
of the Water NSW Act
2014.
[4]Clause 30 Transfer rules from
the Shoalhaven River Water Source to the Upper Nepean and Upstream Warragamba
Water Source
Omit “The Sydney Catchment Authority”
and “in Sydney Catchment Authority” and “in Sydney Catchment
Authority’s” wherever occurring.
Insert instead “Water NSW”, “in
Water NSW” and “in Water NSW’s”,
respectively.
[5]Clause 31 Interchange rules
for Fitzroy Falls Reservoir and Lake Yarrunga in the Shoalhaven River Water
Source
Omit “the Sydney Catchment Authority”
wherever occurring in clause 31 (c) and (d).
Insert instead “Water
NSW”.
[6]Clause 32 Environmental flow
releases in the Upper Nepean and Upstream Warragamba Water
Source
Omit “Sydney Catchment Authority”
wherever occurring in clause 32 (7) (b) (ii) and (8) (b) (ii).
Insert instead “Water
NSW”.
[7]Clause 39A Investigations into
environmental release rules
Omit “Sydney Catchment Authority”
wherever occurring in clause 39A (7) and (8).
Insert instead “Water
NSW”.
[8]Clause 41 Volume of the
long-term average annual extraction limits
Omit “the Sydney Catchment Authority”
wherever occurring (except clause 41 (4) (a)).
Insert instead “Water
NSW”.
[9]Clause 41 (4)
(a)
Insert “former” before “Sydney
Catchment Authority”.
[10]Clause 42 Calculation of
current levels of annual extraction
Omit “the Sydney Catchment Authority”
wherever occurring.
Insert instead “Water
NSW”.
[11]Clause 44 Compliance with the
long-term average annual extraction limits
Omit “the Sydney Catchment
Authority’s” from clause 44 (4) (a).
Insert instead “Water
NSW’s”.
[12]Clause 56 Flow
classes
Omit “Sydney Catchment
Authority’s” wherever occurring. Insert instead “Water
NSW’s”.
[13]Clause 72
General
Omit “the Sydney Catchment Authority”
and “by Sydney Catchment Authority” wherever occurring in clause
72 (6) and (15).
Insert instead “Water NSW” and
“by Water NSW”, respectively.
[14]Clause 78 Part
9
Omit “the Sydney Catchment Authority”
from clause 78 (l). Insert instead “Water
NSW”.
3.49Water Sharing Plan for the Macquarie Bogan Unregulated and
Alluvial Water Sources 2012
Dictionary
Omit “under section 3 of the State Water Corporation Act 2004”
from the definition of Fish
River water supply scheme.
Insert instead “in the Water
NSW Act 2014”.
3.50Wingecarribee Local Environmental Plan
2010
Clause 3.3 Environmentally
sensitive areas excluded
Omit “Sydney Water
Catchment Management Act 1998” from paragraph (jc)
of the definition of environmentally sensitive area for exempt or complying
development in clause 3.3 (2).
Insert instead “Water
NSW Act 2014”.
3.51Wollondilly Local Environmental Plan
2011
[1]Clause 6.3 Development control
plan
Omit “the Sydney Catchment Authority”
from clause 6.3 (5) (c).
Insert instead “Water
NSW”.
[2]Clause 6.3
(6)
Omit “Sydney Water
Catchment Management Act 1998”.
Insert instead “Water
NSW Act 2014”.
3.52Wollongong Local Environmental Plan
1990
Clause 9 Zone objectives and
development control table
Omit “the Sydney Catchment Authority”
from item 2 of the matter relating to Zone No 7 (a) in the
Table.
Insert instead “Water
NSW”.
3.53Wollongong Local Environmental Plan
2009
Land Use
Table
Omit “the Sydney Catchment Authority”
from the matter relating to item 1 of Zone E2 Environmental
Conservation.
Insert instead “Water
NSW”.
Schedule 4Repeals
Each of the following Acts is repealed:
(a)
the State Water
Corporation Act 2004 No 40,
(b)
the Sydney Water
Catchment Management Act 1998 No
171.
Historical
notes
Table of amending
instruments
Water NSW Act
2014 No 74. Assented to 11.11.2014. Date of commencement,
1.1.2015, sec 2 and 2014 (839) LW 19.12.2014.