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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
South East Queensland Water
(Restructuring) and Other Legislation
Amendment Bill 2012
Explanatory Notes
General Outline
Policy Objectives
During 2007 to 2008, significant structural changes were implemented in
the South East Queensland (SEQ) bulk water industry, involving the
establishment of four State-owned bulk water entities under the South East
Queensland Water (Restructuring) Act 2007 (Restructuring Act), including
three asset-owning service providers:
ˇ the Queensland Bulk Water Supply Authority (trading as Seqwater) to
own and operate the dams, weirs and water treatment plants in SEQ;
ˇ the Queensland Bulk Water Transport Authority (trading as
LinkWater) to own and operate bulk water pipelines across SEQ; and
ˇ the Queensland Manufactured Water Authority (formerly trading as
WaterSecure) to own and operate the Tugun Desalination Plant and
Western Corridor Recycled Water Scheme. WaterSecure was merged
with Seqwater on 1 July 2011.
The Restructuring Act also established the SEQ Water Grid Manager
(WGM) as the monopoly purchaser of bulk water services and single seller
of bulk water to SEQ councils and the distributor-retailer authorities.
The Queensland Water Commission (QWC) was established in 2006 as an
independent source of policy advice to Government on regional water
security, and has no operational role in the SEQ water market. It is
constituted as a standalone statutory authority under the Water Act 2000
(Water Act). The QWC also has an advisory role regarding the impacts on
underground water caused by the exercise of underground water rights by
petroleum tenure holders.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
With the completion of major infrastructure projects and a transition to
post-drought operating conditions, there is a clear need to redirect the focus
of the sector from construction to cost-containment, including targeting
duplication of functions across the industry. The continuing requirement
for a dedicated source of policy advice on regional water security has also
receded with the shift to a full-supply operating environment and the
increasing organisational maturity and regional focus of SEQ water
industry participants.
As part of the Queensland Government's plan to reduce the cost of bulk
water supply in SEQ, the Government has committed to rationalise the
SEQ bulk water industry by the merger of three SEQ bulk water entities -
the Queensland Bulk Water Supply Authority (the Authority), LinkWater
and the WGM - into a single bulk water service provider, and the
dissolution of the QWC.
Amendments to Water Fluoridation Act 2008
The Water Fluoridation Act 2008 (the WF Act) imposes a mandatory
obligation on a public potable water supplier (water supplier) to fluoridate
a relevant public potable water supply for which they are responsible, if the
supply services at least 1,000 members of the public (a relevant water
supply). Schedule 1 of the Water Fluoridation Regulation 2008 (the WF
Regulation) prescribes the dates by which relevant water supplies must be
fluoridated; ranging from 31 December 2008 to 31 December 2012.
Since April 2012, a number of water suppliers have requested deferral or
exemption from the requirement to fluoridate due to the upfront and
ongoing cost of fluoridation, the lack of appropriately trained staff to
operate the fluoridation infrastructure and the need to rectify on-going
water quality problems as a matter of priority.
Currently, section 8 of the WF Act sets out the circumstances under which
an exemption may be granted from the requirement that relevant water
supplies must be fluoridated. In response to the concerns of water
suppliers, it is proposed that the WF Act be amended to expand the criteria
under which a water supplier may apply for an exemption and to clarify
that an exemption may only be sought for certain relevant water supplies.
An exemption will not be able to be sought for a water supply which has
been fluoridated in accordance with the WF Act, or at which the
construction of the necessary fluoride dosing infrastructure has been
completed or is nearing completion. Water supplies that serve more than
10,000 people will also be ineligible to apply for an exemption.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Reasons for the Bill
Legislation is required to facilitate the merger of the three bulk water
entities, the dissolution of the QWC and the reconfiguration of the
operating, planning and regulatory frameworks under the Water Act and
other key legislation, including the Water Supply (Safety and Reliability)
Act 2008 (Water Supply Act).
Legislation is also required to amend the WF Act to extend the criteria
under which an exemption may be sought from the requirement that a
relevant water supply be fluoridated and to clarify that an exemption may
only be sought for an eligible relevant public potable water supply.
Achievement of the Objectives
Bulk Water Entities Merger
The Bill amends the existing restructure framework under the
Restructuring Act to facilitate the transfer of all of WGM's and
LinkWater's businesses to the Queensland Bulk Water Supply Authority
and the dissolution of the WGM and LinkWater.
Of note, the Bill:
ˇ amends section 9 to confer additional planning functions on the
Queensland Bulk Water Supply Authority arising from the fact that it
will be taking on some former QWC functions; and
ˇ amends section 105 and inserts a new section 111 to deal with the
rights of employees of the relevant bulk water entities. These
amendments facilitate the transition of employees to the Queensland
Bulk Water Supply Authority.
To the extent that the Bill amends the Restructuring Act, these amendments
principally involve minor consequential amendments which remove
provisions and references relating to the WGM and update the language of
the Restructuring Act arising from the fact that there will be only one
statutory body established under this Act following the merger of Seqwater,
LinkWater and the WGM.
Bulk Water Supply Arrangements between Bulk Water Entity and
Customers
To complement the structural changes, a new chapter 2A, part 5A will be
inserted into the Water Act. Under the new market structure, the
Queensland Bulk Water Supply Authority will have direct bulk water
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
supply agreements in place with its customers. Customers currently
include the two SEQ distributor-retailers (Queensland Urban Utilities and
Unitywater), the water businesses of Gold Coast, Logan and Redland City
Councils, power stations and SEQ irrigators.
Current Planning and Regulatory Framework
To reflect and complement this restructure, the current market structure and
planning and regulatory framework will also be simplified through
amendments to the Water Act and other key legislation, including the
Water Supply Act.
(i) Level of Service Objectives and Planning
Currently, the LOS objectives are prescribed in the Regional Water
Security Program (RWSP) made by the Minister following advice on
options from the QWC. The QWC is required to make a System Operating
Plan (SOP) to facilitate the achievement of the desired levels of service.
Both requirements for a RWSP and a SOP will fall away with the abolition
of the QWC.
The Bill provides for the making of a regulation to set appropriate desired
level of service (DLOS) objectives for water supply in SEQ. Once
prescribed, the DLOS objectives will be subject to review within five years.
The Bill will impose specific obligations upon the new bulk entity to
ensure that it demonstrates how it will achieve the DLOS objectives where
these have been prescribed by Regulation, recognising that it will now own,
operate and control all bulk water supply and transport assets in SEQ and
will need to take ownership of short and long-term planning to ensure it can
meet growing demand for safe, secure and reliable water supply in SEQ
and be appropriately responsive to emerging security issues.
(ii) SEQ Bulk Water Supply Code
The Bill provides for the making of the SEQ Bulk Water Supply Code
(Code) to replace the current SEQ Water Market Rules (Market Rules).
The Market Rules prescribe detailed processes, approvals and protocols for
the water entities operating within the SEQ water market. The
establishment of a single integrated bulk water entity obviates much of the
need for governance of these processes.
The Code will primarily focus on the interaction with the single bulk water
entity and its direct customers in areas, potentially including:
ˇ demand forecasting and water ordering;
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
ˇ communications;
ˇ agreed operating protocols;
ˇ infrastructure planning and demand management; and
ˇ emergency responses.
The Code will continue to regulate water pricing by allowing the
assessment of efficient costs of the Authority and bulk water prices
on-charged to households and businesses, including by the Queensland
Competition Authority (QCA). The development of the Code will be
undertaken in consultation with stakeholders and, therefore, may provide
for other matters to support the effective interaction between the bulk water
authority and its customers.
Dissolution of the Queensland Water Commission
Chapter 2A of the Water Act will be amended to dissolve the QWC and
remove references to QWC and its functions and powers. Most of the
advisory functions of the QWC will revert to the relevant Government
department.
Specific functions and powers of SEQ water service providers will be more
closely aligned with the position of service providers situated outside SEQ.
For instance, SEQ water service providers will no longer be subject to
direction from the QWC to require business customers to prepare and
comply with water efficiency management plans.
The QWC water restriction powers will also be removed and the SEQ
water service providers will no longer be delegated a compliance role to
ensure restrictions are adhered to, but will be empowered to impose
restrictions where they consider these are necessary, and be subject to a
direction from the Water Supply Regulator to impose a restriction
consistent with legislative provisions that apply throughout Queensland.
SEQ water service providers will achieve a level of reduced business costs
with the removal of these QWC functions.
The Bill provides for the establishment of a new statutory office, the Office
of Groundwater Impact Assessment (OGIA), which will perform the
statutory functions of the QWC as they relate to obtaining and analysing
data about impacts of the exercise of underground water rights upon
underground water and preparing Underground Water Impact Reports.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Reporting Requirements of SEQ Local Governments
- Distributor-Retailer Pricing
Through the Fairer Water Prices for SEQ Amendment Act 2011, a number
of costly processes were imposed on SEQ local governments, including the
preparation of a five-year price path for 1 July 2013 to 30 June 2018.
SEQ councils have argued that such mandated processes fail to take
account of councils' overall responsibility and accountability to their
residents. The publication of a once-only five-year price path does not
improve costs or reduce prices. The SEQ distribution-retail businesses are
already required to publish their charges (including annual publication of
proposed charges for the following financial year by 31 March).
To relieve local governments of this obligation, the Bill will omit chapter 5,
part 2 (Local government price mitigation documents) of the South-East
Queensland Water (Distribution and Retail Restructuring) Act 2009.
In addition, the Bill will remedy a potential technical defect in the
operation of compliance and enforcement conditions imposed on some
dam owners, based on concerns about the enforceability of these conditions
under the existing legislative arrangements.
Alternatives to the Bill
The policy objectives can only be implemented through primary
legislation.
Estimated Cost for Government Implementation
The amendments to the Restructuring Act and other legislation are
facilitative in nature, and, among other things, will give effect to transfers
of assets, liabilities, contracts and employees between State-owned entities.
It is not expected that the implementation of these amendments will result
in any appreciable cost for Government.
The proposed changes to the WF Act will not result in any appreciable cost
for Government. To date, 70 relevant public potable water supplies in SEQ
and other regional areas of the State have commenced fluoridation in
accordance with the obligation under section 7 of the WF Act.
Water suppliers outside SEQ will be able to apply for up to 100 per cent of
eligible capital costs (direct costs) of the lowest cost solution for the
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
installation of water fluoridation dosing infrastructure via the Queensland
Fluoridation Capital Assistance Program.
Consistency with Fundamental Legislative Principles
The Bill raises a number of issues relevant to the fundamental legislative
principles.
(i) Sufficient regard to rights and liberties of individuals, Legislative
Standards Act 1992 section 4(3)
Clause 30 of the Bill amends section 105 of the Restructuring Act to
authorise that a regulation made under that section may make provision
about the application of industrial instruments to a relevant water entity.
For example, a regulation may provide that, despite the Industrial
Relations Act 1999:
ˇ an industrial instrument applies to all or some employees of the
merged entity; or
ˇ an industrial instrument only applies to employees who have been
transferred to another entity, and does not apply to other employees of
that entity.
While the regulation will override the usual provisions regarding the
transmission of industrial instruments to a new employer under the
Industrial Relations Act 1999, it will not take away any person's existing or
accrued rights such as existing leave entitlements or reduce their total
remuneration. This approach is justified on the basis that it enables the
transition arrangements for employees of the merged entity to be tailored
for the particular transaction.
It is also salient to note that the application of a nominated industrial
instrument is arguably within the existing powers available under
section 105(1)(l) and (2); the proposed amendment simply operates to
clarify this power. Furthermore, the provision should be read in light of the
express protection of leave entitlements and continuity of service under
new section 111. Insofar as the transfer of benefits and entitlements will be
managed through a transfer regulation under section 105, it remains subject
to Parliamentary oversight.
Clauses 32 and 33 of the Bill replace section 111 and repeal section 112 of
the Restructuring Act, ending:
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
ˇ the preservation of the employment arrangements for WaterSecure
employees transferred to Seqwater until a new certified agreement or
other agreement is in place; and
ˇ the three year protection against forced retrenchment of WaterSecure
employees transferred to Seqwater under section 112 of the
Restructuring Act on 1 July 2011.
The potential adverse effects for employees are to be balanced against
extending normal industrial relations prerogatives to the bulk water
business.
(ii) Whether legislation allows the delegation of legislative power only in
appropriate cases and to appropriate persons --LSA s 4(4)(a)
Penalty units in relation to a delegated Code
Clause 51 (section 360S(a)) of the Bill provides for a maximum 1665
penalty units for breach of an Emergency Plan made under the code. While
this may be regarded as a significant penalty, it is considered
commensurate with the need to ensure potential public health and safety
risks are appropriately managed and coordinated in an emergency event
(such as a flooding event).
Clause 51 (section 360Z) of the Bill also imposes a maximum 1665 penalty
units for a failure to comply with a direction of the Minister about access,
made under principles in the Code (matters relating to access). The urban
water sector in SEQ is made up of the bulk and the distribution-retail
sectors. It remains important to ensure that customers are the beneficiaries
of regulatory arrangements to ensure whole-of-supply chain solutions.
The bulk and distribution-retail sectors are given the opportunity to agree
access arrangements between themselves (including cost), but where they
cannot, it remains the State's responsibility to ensure that water pricing is
not driven up by construction of water assets in circumstances where the
same outcomes could be delivered through another sector of the network.
Clause 51 (section 360S(b)) of the Bill imposes a maximum 200 penalty
units for failure to comply with any other provision of the Code. This
would include other operational matters such as standards for metering
where it is important to ensure reliability and efficiency of water supply.
Extending definitions by regulation
Clause 76 (new section 1014(2)(l)) of the bill enables the department to
exempt a water service by regulation. The provision will enable policy
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
flexibility in deciding the critical aspects of water supply that warrant
regulation and the consequential costs. Consultation will occur during the
development of a regulation to ensure that only appropriate exemptions are
applied.
(iii) Other matters--judicial review
To the extent possible, clause 51 (new section 360Y) of the Bill prevents all
forms of judicial review in relation to the Minister's pricing power under
sections 360W and 360X (noting that jurisdictional error of the executive
branch cannot be ousted).
The Queensland Competition Authority (QCA) processes normally include
exhaustive public submission processes and extensive reports documenting
the reasons for recommendations, which provide adequate rigour around
these decisions. Additionally, pricing decisions which affect residents and
businesses will normally have regard to affordability and equity
considerations, including the need for financial support to the whole or
parts of the community.
It is also noted that local governments are exempt from providing reasons
for decisions under the Judicial Review Act 1991 in relation to their rates
and charges for water services.
Consultation
On the proposed amendments to the Restructuring Act, Queensland
Treasury and Trade (QTT) has consulted with:
ˇ the Department of the Premier and Cabinet (DPC), LinkWater,
Seqwater, the WGM and the South East Queensland Bulk Water
Company Limited (SEQBWCo) on the overall content of the Bill;
ˇ the Office of State Revenue, QTT, on the proposed exemption from
duty on transactions necessary to achieve the merger;
ˇ the Public Service Commission about the transition of staff from the
existing businesses to the merged authority;
ˇ the Queensland Audit Office on financial reporting implications of the
changed institutional arrangements; and
ˇ the Department of Local Government (DLG) and LG Super regarding
amendments to the Local Government Act 1993 to facilitate the
continued LG Super membership of employees transferred from
LinkWater to Seqwater.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
On the proposed amendments to the Water Act, Department of Energy and
Water Supply (DEWS) has consulted with QTT, DPC, the Department of
State Development, Infrastructure and Planning (DSDIP), the Department
of Natural Resources and Mines, LinkWater, Seqwater, the WGM,
SEQBWCo and the Gasfields Commission Queensland.
DEWS has also consulted with SEQ distributor-retailer authorities and
southern SEQ councils on the amendments to the Water Act, including
arrangements for the application of water restrictions and the proposed
bulk water supply agreements.
The following entities were also consulted on the proposed amendment to
the WF Act: the Local Government Association of Queensland; the
Queensland Water Directorate; the 25 potable water suppliers directly
affected by the proposed amendments to the Act; as well as DPC, DSDIP,
DEWS, QTT, DLG and the Department of Justice and the
Attorney-General.
Notes on Provisions
Part 1 Preliminary
Clause 1 states the short title for this Bill.
Clause 2 deals with the commencement details for this Bill.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Part 2 Amendment of South-East
Queensland Water (Distribution
and Retail Restructuring) Act
2009
Clause 3 states that part 2 amends the South-East Queensland Water
(Distribution and Retail Restructuring) Act 2009.
Clause 4 omits the note to subsection 4(2)(a) referring to the bulk supply
entities.
Clause 5 amends subsection 11(1)(a) by removing the reference to
distributor-retailer authorities (DRs) purchasing water only from the water
grid manager.
Clause 6 omits the reference to "Queensland Water Commission" and
replaces it with a reference to "the Queensland Bulk Water Supply
Authority" in relation to disqualifications for independent members of
DRs.
Clause 7 omits the reference to directions relating to a council's final price
path.
Clause 8 omits section 53AE which deemed DRs to be market participants
under the market rules when DRs assumed responsibilities under the rules
instead of local councils in accordance with previous water reforms. The
repeal of the market rules obviates the need for this section.
Clause 9 omits section 92CT, which operated to apply the relevant
provisions of the Southern SEQ Distributor-Retailer Authority contracts
made under section 360ZDD of the Water Act to the relevant councils (as
far as possible). As new bulk water supply agreements are due to be made
to replace the section 360ZDD contracts, this provision is no longer
necessary.
Clause 10 omits chapter 4, part 3A.
Clause 11 omits reference to the "commission water restriction" in
subsection 99AT(1)(b)(ii).
Clause 12 replaces "commission" with "chief executive" in subsection
99BB(1)(d).
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Clause 13 omits references in section 99BQ(1) to documents previously
prepared by the Queensland Water Commissioner and replaces
"commission" with "chief executive".
Clause 14 omits chapter 5, part 2 referring to local government price
mitigation plans.
Clause 15 omits subsection 99BZD(1)(c) referring to a local government
price path.
Clause 16 replaces "commission" with "chief executive" in section 100C.
Clause 17 replaces "commission" with "chief executive" in sections
100DA(1) and (2).
Clause 18 omits references in section 100F to offence provisions
enforceable by the Queensland Water Commission.
Clause 19 replaces "commissioner" with "chief executive" in section 101
providing for approved forms.
Clause 20 inserts new chapter 6, part 8 providing for transitional provisions
for the South East Queensland Water (Restructuring) and Other
Legislation Amendment Act 2012.
Section 130 deems as valid the adoption of the SEQ design and
construction code in effect immediately before commencement for those
DRs which had adopted the code prior to commencement.
Clause 21 omits the definition of "commission" and "final price path" from
the definitions in the schedule.
Part 3 Amendment of South East
Queensland Water
(Restructuring) Act 2007
Division 1 Preliminary
Clause 22 states that part 3 amends the South East Queensland Water
(Restructuring) Act 2007.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Division 2 Amendments commencing on assent
Clause 23 omits subsection 6(1)(c) which established the Queensland
Manufactured Water Authority. This entity was dissolved on 1 July 2011.
Clause 24 amends section 9 to confer certain planning functions on the
bulk water entities. Specifically, the Queensland Bulk Water Supply
Authority's functions, as the merged entity, will include undertaking, with
the State and service providers, collaborative planning activities with a
view to doing each of the following and having regard to supply and
demand:
(i) supporting cost effective operations;
(ii) promoting efficient use of and investment in water infrastructure, and
other ancillary infrastructure; and
(iii) ensuring the safe, secure and reliable supply of water.
Clause 25 omits the reference to "water entity" and replaces it with the
reference to "new water entity" for consistency with the existing language
adopted in chapter 1 of this Act.
Clause 26 amends, relocates and renumbers the existing section 89
contained in chapter 3. Chapters 3 and 4 facilitated the original restructure
of the SEQ bulk water industry during 2007-08. As the relevant provisions
(other than section 89) of chapters 3 and 4 are spent, it is proposed to repeal
them.
Clause 27 relocates and renumbers section 93 to section 116B.
Clause 28 omits chapters 3 and 4. Refer to comments relating to clause 26.
Clause 29 inserts a new subsection into section 104 to declare that the
Queensland Water Commission is a relevant water entity for the purposes
of this Act.
Clause 30 amends section 105 to facilitate the restructure of Seqwater,
LinkWater and the WGM by inserting:
ˇ a new subsection for the purposes of confirming that a regulation may
make provision about accounting treatment in relation to a matter
mentioned in section 105(1);
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
ˇ a new subsection permitting a regulation to make provision about the
application of industrial instruments to a relevant water entity, despite
the Industrial Relations Act 1999 and any industrial instrument.
Clause 31 amends section 110 to exempt a relevant water entity from a
State tax in relation to matters done under a regulation made pursuant to
section 105 to give effect to Government-driven restructures between State
entities in the SEQ bulk water industry. The existing section 110 was
limited to the merger of WaterSecure and Seqwater, undertaken to achieve
the previous Government-mandated restructure of the SEQ bulk water
sector. The exemption is not intended to apply to non-Government driven
matters done under a regulation made under section 105.
Clause 32 omits the existing section 111, and inserts a new section 111
dealing with the rights of employees transferred from a relevant water
entity to another relevant water entity under a regulation made under
section 105. The application of the existing section 111 was limited to the
merger of WaterSecure and Seqwater. Refer also to comments about clause
34.
Clause 33 omits section 112. Refer also to comments about clause 34.
Clause 34 deals with a number of transitional matters relating to the repeal
of chapters 3 and 4 and the repeal of sections 111 and 112.
ˇ A new section 118 will provide that the former sections 111 and 112
stop applying for the transferred employees. The practical effect of
this item ends the preservation of the employment arrangements for
WaterSecure employees transferred to Seqwater until a new certified
agreement or other agreement is in place under section 111 and the
three year protection against forced retrenchment of WaterSecure
employees transferred to Seqwater on 1 July 2011.
ˇ A new section 119 will continue section 95 in the event that the
Ministers need to issue a certificate relating to the matters done under
the former chapters 3 and 4.
Clauses 35 and 36(1) omit schedule 1 and certain definitions in schedule 3,
which are not relevant to the remaining chapters. Clause 36(2) relocates
the definition of "instrument" from other divisions.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Division 3 Amendments commencing on
proclamation
Clauses 37 to 42 amend the heading for chapter 2, sections 6, 9, 10, 11 and
16 respectively. These are minor consequential amendments to remove
references to "water grid manager" and "new water entities" and update the
language of these sections to reflect the fact that the Queensland Bulk
Water Supply Authority will be the only entity to be governed by chapter 2
of the Restructuring Act.
Clause 43 inserts a new section 50A providing that if the Queensland Bulk
Water Supply Authority has a statement of obligations when the strategic
or operational plan for the financial year is agreed to by the responsible
Ministers - the plans must not be inconsistent with the statement of
obligations.
Clause 44 amends section 51, which deals with the content of the
Authority's operational plan. This subsection provides that the operational
plan must include the activities proposed to be undertaken by the Authority
in accordance with the statement of obligations.
Clause 45 inserts a new chapter 2, part 4, division 5 outlining the process
for the issue of a statement of obligations to the Queensland Bulk Water
Supply Authority by the responsible Ministers from time to time.
Clause 46 amends section 104 to remove the reference to "Queensland
Water Commission" following its dissolution. Refer also to comments
about clause 29.
Clause 47 inserts new transitional provisions dealing with the 2013-14
strategic and operational plans of the Authority and the final quarterly
reports by the WGM and LinkWater.
New section 120 outlines the process for the Queensland Bulk Water
Supply Authority to prepare, submit and reach agreement with the
responsible Ministers on its strategic and operational plans for the 2013-14
financial year.
New section 121 provides that the Queensland Bulk Water Supply
Authority must give the responsible Ministers the final quarterly reports for
LinkWater and the WGM if all or part of the business of those entities is
transferred to the Authority by a regulation made under section 105.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Part 4 Amendment of Water Act 2000
Clause 48 states that part 4 amends the Water Act 2000.
Clause 49 makes minor amendments to section 212A to reflect that the
Queensland Bulk Water Supply Authority would hold the water licence,
enabling it to take water from a receiving water source, including a purified
recycled water supply source.
Clause 50 amends the purpose of chapter 2A to take account of the new
content of the chapter.
Clause 51 omits chapter 2A, parts 2 to 7, which provided for the functions
and powers of the Queensland Water Commission, and inserts a new
chapter 2A, parts 2 and 3.
New section 342 (Designation of regions) enables the making of a
regulation to designate a region, or part of a region, outside the SEQ region,
for the purposes of water security planning.
New section 343 (Nomination of water service providers) provides that,
where there is more than 1 water service provider for a designated region, a
regulation may nominate 1 or more service providers as being responsible
for water security planning for the designated region.
New section 344 (Desired level of service objectives) provides that a
regulation may prescribe desired level of service objectives for SEQ or for
a designated region.
New section 345 (Public notice about proposed desired level of service
objectives) provides that before making the desired level of service
objectives (or an amendment to the desired level of service objectives), the
chief executive will undertake consultation with the community and
entities that are impacted by the desired level of service objectives.
Consultation must involve making a public notice on the proposed desired
level of service objectives.
New section 346 (Chief executive must consider properly made
submissions) requires that the chief executive, before prescribing desired
level of service objectives (or amendment to the desired level of service
objectives), must consider all properly made submissions and must consult
with the community on any revised proposed level of service objectives,
unless the revision is only to correct a minor error or to make a change that
is not a change of substance.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
New section 347 (Report on desired level of service objectives) requires the
chief executive to prepare a consultation report about the desired level of
service objectives if a regulation prescribes or amends the desired level of
service objectives.
New section 348 (Review of desired level of service objectives) provides
that the chief executive must review the desired level of service objectives
at least every 5 years.
The new division 3 (Water security program) outlines the framework by
which the desired level of service objectives, once set under regulation, will
be facilitated by the relevant entity (as prescribed under the regulation).
New section 349 defines "designated water security entity" for the
purposes of division 3.
New section 350 (Bulk water supply authority to have water security
program) creates an offence if the bulk water supply authority for the SEQ
region fails to have a water security program (maximum penalty of 1665
penalty units).
New section 351 (Nominated Water Supply Provider to have water security
program) creates an offence if a nominated water service provider in a
designated region, where a nomination has been made, fails to have a water
security program (maximum penalty of 1665 penalty units).
New section 352 (Particular Water Supply Provider to have water security
program) creates an offence if a relevant water service provider in a
designated region, where no nomination has been made, fails to have a
water security program (maximum penalty of 1665 penalty units).
The maximum penalty imposed under each of the new sections 350, 351
and 352 for a failure to have a water security program is 1665 penalty units,
which equates to the maximum penalty imposed under the current section
360ZA of the Water Act 2000 for a failure to comply with the system
operating plan, which is considered to be of a severity commensurate to the
proposed offence.
New section 353 (Content of water security program) outlines, broadly, the
information about the water service provider's arrangements, strategies or
measures that are required in a water security program. Additional
requirements of a water security program can be prescribed under
regulation and the chief executive may make guidelines about the content
of a water security program. This approach is considered highly desirable
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
to provide flexibility and an adequate level of assistance to the water
service providers and to provide a level of consistency in the programs.
New section 354 (Preparing draft water security program) requires that a
draft water security program must be prepared by a designated water
security entity as part of the process to finalise, and give effect to, a water
security program. A designated water security entity is a water service
provider that is required to facilitate the achievement of prescribed desired
level of service objectives.
New section 355 (Consultation for draft water security program) requires
that reasonable efforts must be made by the water service provider drafting
the water security program to consult with its customers.
New section 356 (Chief executive to review draft water security program)
requires the draft water security program prepared by a designated water
security entity to be given to the chief executive. The chief executive must
undertake a review, and may recommend changes.
New section 357 (Special procedures for draft water security program if
changes recommended) provides procedures that apply if, following a
review of the draft water security program, the chief executive considers
that changes should be made to the water security program and decides to
recommend those changes.
New section 358 (Finalisation and publication of water security program)
provides that the designated water security entity, after considering the
recommendations made by the chief executive, must finalise its water
security program. Subsection 358(3) provides the designated water security
entity must publish the water security program on its website as soon as
practicable after finalising the program. The water security program has
effect from the date it is published on the website of the designated water
security entity.
New section 359 (Review of water security program) requires that a
designated water security entity must complete a review of its water
security program at least every 5 years or if there is a significant change to
any matter affecting, or likely to affect, the achievement of the desired level
of service objectives.
New section 360 (Amendment of water security program) provides that a
designated water security entity may amend its water security program as
appropriate or if directed by the chief executive.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
New section 360A (Procedure for amending water security program)
specifies the process that a designated water security entity must follow for
amending its water security program.
New section 360B (Designated water security entities not required to
prepare drought management plan under Water Supply Act) provides that,
if a water service provider is required to provide prescribed desired level of
service objectives under the Water Act 2000 (i.e. is a designated water
security entity), then that water service provider is not required to prepare a
drought management plan under the Water Supply (Safety and Reliability)
Act 2008.
New section 360C provides definitions for part 3 (i.e. for bulk agreement
and code matters). The section provides for an entity to be declared (under
a regulation) to be a bulk water customer, a code-regulated entity or a SEQ
bulk water supplier. This approach provides flexibility in choosing
whether or not to regulate particular entities in terms of the application of
the new bulk water supply agreements or the new bulk water code. This is
a departure from the approach under the current provisions, which regulate
all activities in a declared service and require those entities to be registered
under the Market Rules. The new legislation does not continue the old
concepts of `declared water services' or a `market' under which
participants register.
New section 360D clarifies that the part provides for optimising the
efficient and reliable supply of water for the SEQ region by the making of
new bulk water supply agreements and the new bulk water supply code.
New section 360E clarifies that the relevant provisions for the code and
bulk water supply agreements are not limited to being supplied within
SEQ. This section does not limit the application of any other legislation
which might set geographic boundaries for the entities' operations, such as
section 4 of the South-East Queensland (Distribution and Retail
Restructuring) Act 2009, which provides that SEQ service providers'
functions relate to their geographic regions.
New section 360F (Obtaining information) provides for the chief executive
to obtain relevant information from the bulk water authority to support the
department's continued role in strategic water planning role and water
pricing. The section provides a statutory obligation on the bulk water entity
to provide the required information. The notice itself is able to provide the
reasonable time by which the information is to be provided. The section is
not limited to the provision of information and obtaining information
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
would include a requirement for the bulk authority to generate the
requested information.
New section 360G (Making agreement) provides for the Minister to make
new bulk water supply agreements which replace the current section
360ZDD contracts. The agreements provide for supply of a bulk water
service between an SEQ bulk supplier (i.e. the bulk entity or other entity
prescribed under a regulation) to a bulk water customer (being a DR, an
SEQ local government water business or other entity prescribed under a
regulation).
That is, the contracts are direct supply contracts (with no WGM interface
due to its proposed dissolution) and can be extended beyond the core water
entities by prescribing entities under a regulation. As was the case for the
previous section 360ZDD provisions, the agreement takes effect as a
contract between the parties on the date of the Minister's making.
Subsection 360G(4) clarifies that the parties do not have to sign the
contract for it to be considered to be a contract (except that they must sign
any amendments to their own negotiable amendments). Subsection
360G(4)(b) indicates that the contract is still a contract even though no
consideration passes. This clause would be legally necessary to prevent
any argument that the contract `failed for lack of consideration' in the event
that any future debt structuring decisions (in relation to the Authority)
resulted in bulk water price revenue being paid to a third party entity rather
than being directly paid to the bulk entity.
New section 360H (Bulk water party may amend non-mandatory terms of
agreement) provides that the new bulk water supply agreements may
contain mandatory terms set by the Minister which cannot be varied by the
parties and non-mandatory terms. The new agreements will indicate which
of the terms in the agreement can be amended by the parties. Any
negotiated amendments must be signed by the parties and given to the
Minster as soon as practicable.
New section 360I (Minister's direction about agreement amendment)
allows the Minister to direct a bulk water party to amend its agreement if
the Minister considers the amendment made by the bulk water party
conflicts with the mandatory terms of the bulk water supply agreement.
Notice and submission requirements apply and the Minister's direction
power lasts for 2 months after having received the parties' amendments.
Conflicting amendments are deemed not to have had effect.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
New section 360J provides the offence for failing to comply with the
Minister's direction.
New section 360K requires the chief executive to keep a copy of each bulk
water supply agreement and each amendment to that agreement.
New section 360L (Liability of bulk water parties) replicates the terms of
the existing section 360ZDI, but with modifications to reflect the new bulk
water supply authority and the new direct supply arrangements.
New section 360M (Minister's power to make code) provides a power for
the Minister to make a bulk supply code. The Code will apply to the
supply of bulk services and only to `code-regulated entities', which is any
entity regulated by the bulk water supply agreements and any other entity
prescribed by regulation. As was the case for the market rules, the Code is
a statutory instrument to which the provisions of the Statutory Instruments
Act 1992 apply.
New section 360N (Content of code - costs and prices) provides that the
Code may set out principles (e.g. methodologies) for deciding the differing
types of costs and prices listed in the section. This section interacts with
section 360W, where the Minister may determine certain prices and
charges under the Code. It should be noted that the description of the
charges, prices, etc. referred to in the Act are only for the purposes of
outlining what methodologies the Code can provide for. They are not
extensive descriptions of what can and cannot be included in the relevant
cost or price. The Code itself may stipulate this.
New section 360O (Content of code - general) provides for Code content
(other than price and cost methodologies as outlined in section 360N). The
focus of the code will be on areas where there is a policy need to regulate
the interface between the merged bulk entity and the distribution retail
sector. The provision will also allow the code to provide principles for
supply of bulk services by an SEQ service provider (and charges for those
services). The Code will include the ability for the nomination of an entity
such as the Queensland Competition Authority to play an advisory role to
the Minister for the nominated decisions.
New section 360P (When code takes effect) provides for the notification of
the making of the Code in much the same way as the market rules.
New section 360Q provides for the tabling of the Code in the Legislative
Assembly.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
New section 360R provides for the publication of the Code on the
department's website.
New section 360S (Compliance with code) provides for penalties for
breaches of certain provisions of the Code. The section makes a breach of
an emergency plan requirement subject to a 1665 penalty unit maximum.
Breaches of other sections of the Code are subject to a lesser 200 penalty
unit maximum.
New section 360T (Civil liability not affected by code) provides that
compliance (or otherwise) with the Code does not create a civil cause of
action or affect civil rights or remedies. This is to ensure that a penalty for
a breach of the Code does not preclude either party from pursuing other
legal options.
New section 360U (Consultation for code) sets out how consultation is to
occur when the code is to be made or amended. The provisions require
consultation with each code-regulated entity that is affected by the
proposed Code or amendment. The consultation provision should also be
read in conjunction with section 1224 (consultation for first code) to
recognise that for the making of the Code on 1 January 2013, the
consultation may have occurred prior to the passing of the Bill.
The provisions also allow amendments without consultation for a `stated
amendment' as outlined in the Code. A `stated amendment' will be limited
to changes where consultation on the proposed Code change would not
affect the outcome such as changes to reflect updates other laws, to remove
`spent' provisions of the Code.
New section 360V (Supply under bulk water supply agreement) replaces
the existing provisions of the Water Act which required declared services
in the market to be provided under a grid contract made under section
360ZDD. As those concepts no longer apply, the entities that are required
to supply under the new bulk water supply agreements will be identified by
definition. That is, any entity who is an SEQ bulk supplier and any entity
who is a bulk water customer (see section 360C definitions).
While the provision of the bulk service may be regulated, under section
360V(2), there is the ability to exempt an aspect of the water service by
regulation (see amended section 1014). This would allow for parts of
services to be de-regulated as policy needs change and develop in the
future.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
New section 360W (Minister may decide cost or price) gives the Minister
the power, but not the obligation, to decide costs or prices for supply of
bulk services for any period. The default is that the power for matters
outlined in the Code rests with the Minister. This default may, however, be
changed by the Minister giving a notice that the Minster does not intend to
exercise the pricing option (see subsection 360W(7)). Four months' notice
is required.
Cost or prices may be decided for any time period (whole or parts of
financial years or more than one financial year).
The provision also allows (but does not require) the Minister to seek advice
from an entity nominated in the Code (e.g. the Queensland Competition
Authority) about pricing under the Code. While the Minister must consider
the advice, the Minister is not bound by it.
Affected entities must be given notice of decisions and amend contracts to
reflect new prices (although the contractual price will be deemed to be
amended from the time of the determination under subsection 360W(1)).
New section 360X (Amended cost or price) enables the Minister to amend
a cost or price set under section 360W and effectively requires this to be
done using the same process for making the decisions under subsections
360W(2) to (6).
New section 360Y (Limitation of review) provides that the Minister's
decisions about costs and prices under section 360W and reviews etc. under
section 360X are not subject to judicial review (as far as is possible given
that it is not legislatively within power to limit superior court's ability to
supervise jurisdictional errors of courts or the executive).
New section 360Z (Minister's direction about bulk services supplied by
SEQ service provider) provides for a Ministerial direction regarding certain
services in circumstances where the parties are unable to agree on the
provision of the service or the charge under their bulk water supply
agreement. These are bulk services provided by an SEQ service provider.
Determinations must be made under the principles provided for in the
Code. Under section 360O, the Minister would also be able to seek
assistance from the Investigating Authority when making these
determinations.
Clause 52 provides for the purpose of chapter 3, which provides for
underground water management to be transferred from the Commission to
the `Office of Groundwater Impact Assessment'.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Clause 53 amends section 365 to transfer the ability to declare a cumulative
management area by the Commission to the `Office of Groundwater
Impact Assessment'.
Clause 54 amends section 368 (Who is a responsible entity) to omit the
Commission and insert the `Office of Groundwater Impact Assessment',
defined in schedule 4 as the `office'.
Clause 55 amends section 370 (Obligation to give underground water
impact report) to omit the Commission and insert the `office'.
Clause 56 amends section 372 (Obligation to give notice of
closure--general) to omit the Commission and insert the `office'.
Clause 57 amends section 374 (Obligation to give final report) to omit the
Commission and insert the `office'.
Clause 58 amends section 376 (Content of underground water impact
report) to omit the Commission and insert the `office'.
Clause 59 amends section 377 (Content of final report) to omit the
Commission and insert the `office'.
Clause 60 amends section 378 (Content of water monitoring strategy) to
omit the Commission and insert the `office'.
Clause 61 amends section 379 (Content of spring impact management
strategy) to omit the Commission and insert the `office'.
Clause 62 amends section 380 (Identifying responsible tenure holders for
cumulative management areas) to omit the Commission and insert the
`office'.
Clause 63 amends section 385 (Decision on report) to omit the
Commission and insert the `office'.
Clause 64 amends section 391 (Minor or agreed amendments of approved
report) to omit the Commission and insert the `office'.
Clause 65 amends section 393 (Other amendments) to omit the
Commission and insert the `office'.
Clause 66 amends section 405 (Notice of outcome of baseline assessment)
to omit the Commission and inserts the `office'.
Clause 67 amends section 419 (Notice of outcome of bore assessment) to
omit the Commission and insert the `office'.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Clause 68 omits chapter 3, part 7 (Functions and powers of commission),
dealing with the powers and functions of the Queensland Water
Commission under chapter 3.
Clause 69 amends section 449 (Chief executive may direct petroleum
tenure holder to carry out water monitoring activities) to omit the
Commission and insert the `office'.
Clause 70 inserts a new chapter 3A. The purpose of chapter 3A is to
establish the Office of Groundwater Impact Assessment to perform the
underground water functions previously carried out by the Commission
and to provide for the functions and powers, the staffing and funding of the
office.
New section 455 (Establishment) establishes the Office of Groundwater
Impact Assessment (OGIA) to undertake the former underground water
management functions of the commission.
New section 456 (Functions of office) provides the main functions of the
OGIA, which are:
ˇ to advise the chief executive on matters relating to impacts on
underground water caused by the exercise of underground water rights
by petroleum tenure holders; and
ˇ establishing and maintaining a database of information about
underground water; and
ˇ preparing reports for cumulative management areas.
New section 457 provides that the office has the powers necessary or
convenient to perform its functions or to achieve the purposes of new
chapter 3A.
New section 458 (Advice to chief executive) provides the chief executive
may give the OGIA written directions to provide advice to the chief
executive on any matter relating to impacts on underground water caused
by the exercise of underground water rights.
New section 459 (Office to keep and maintain database) requires the OGIA
to keep and maintain a database of information relevant to monitoring
underground water.
New section 460 (Obtaining information about underground water from
petroleum tenure holders) provides a power for the OGIA to request, via
notice given by the manager of the OGIA, information from a petroleum
tenure holder about the exercise of underground water rights under the
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
petroleum tenure. It is an offence for a petroleum tenure holder to not
comply with the notice, unless the holder has a reasonable excuse.
New section 461 (Advisory bodies) provides that the OGIA may establish
advisory bodies it considers appropriate to give the OGIA advice on the
performance of its functions. These advisory bodies will not have any
decision-making role.
New section 462 (Membership of office) provides that the OGIA will
consist of a manager and other staff.
New section 463 (Manager of the office) provides that the OGIA must have
a manager.
New section 464 (Appointment of manager) provides for the appointment
of the manager by the Governor in Council on a full time basis. The
manager can only be dismissed by the Governor in Council.
New section 465 (Eligibility for appointment) provides eligibility criteria
for appointment of the manager.
New section 466 (Term of appointment) provides that the manager holds
office for the term stated in the instrument of the person's appointment, but
cannot hold office for longer than 5 years.
New section 467 (Functions of the manager) provides for the main
functions of the manager.
New section 468 (Powers of the manager) provides for the manager to have
the powers necessary or convenient for performing the manager's functions
and discharging the manager's obligations imposed under the Water Act.
New section 469 (Independence in performing functions) ensures the
independence of the OGIA by providing for the manager's functions to be
performed by exercising independent judgment without direction from
anyone else.
New section 470 (Manager not to engage in other paid employment)
provides that the manager cannot hold another office of profit, engage in
any other paid employment or undertaking outside of the duties of that
office, or actively take part in another business.
New section 471 (Vacancy in office of manager) provides that the office of
the manager will become vacant if the manager -
ˇ completes the term of office or resigns by notice provided to the
Minister;
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
ˇ is removed from office by the Governor in Council under section 471;
ˇ is convicted of an indictable offence, or offence against this Act; or
ˇ is or becomes an insolvent under administration under section 9 of the
Corporations Act.
New section 472 (Termination of appointment) provides for the
termination of the manager by the Governor in Council on stated grounds.
New section 473 (Delegation) provides for the manager to delegate the
manager's functions to an appropriately qualified person.
New section 474 (Preservation of rights as public service officer) provides
that if the person undertaking the role of manager has resigned from the
public service, they retain and are entitled to all rights that have accrued to
the person because of the person's employment as a public service officer.
New section 475 (Superannuation if previously a public service officer)
provides that if the person appointed as the manager was a public service
officer, they will remain eligible for the State Public Sector Superannuation
Scheme under the Superannuation (State Public Sector) Act 1990.
New section 476 (Office staff) provides for the other staff of the OGIA to
be employed under the Public Service Act 2008.
New section 477 (Alternative staffing arrangements) provides for the
manager of the OGIA to arrange with the chief executive of a department
for services of officers or employees of that department. The officers or
employees of the department working for the OGIA will remain as
employees of the department on the same terms and conditions, while
being considered as a member of staff of the OGIA.
New section 478 provides for the establishment of a Groundwater Impact
Assessment Fund.
New section 479 (Annual levy for underground water
management--general) provides for the establishment of an annual levy,
payable by each petroleum tenure holder, for funding the underground
water management functions of the OGIA, established in new chapter 3A
of the Water Act. The basis for calculating and charging the levy is
identical in its terms to the existing annual levy for underground water
management contained in section 360FA of the Water Act.
New section 480 (Payment of amounts into Groundwater Impact
Assessment Fund) provides for the payment of levy contributions from
petroleum tenure holders into a Groundwater Impact Assessment Fund.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
New section 481 (Payment of amounts from Groundwater Impact
Assessment Fund) provides for the manager to make payments from the
Groundwater Impact Assessment Fund for stated expenses for costs.
New section 482 (Administration of Groundwater Impact Assessment
Fund) provides for the keeping of accounts for the Groundwater Impact
Assessment Fund as part of departmental accounts for the department.
New section 483 (Public access to database) provides that the office may
make information kept on its database publicly available, provided the
publicly available information does not include information obtained as
part of undertaking a baseline assessment or a bore assessment, or the
OGIA reasonably believes the information is commercially sensitive.
New section 484 (Petroleum tenure holder access to information) provides
that the office must make any information kept on the database available to
a petroleum tenure holder.
Clause 71 amends section 739 (Appointment and qualifications of
authorised officers) to omit the Commission and insert the `office'.
Clause 72 omits section 748A relating to the power of entry for monitoring
commission water restrictions and water efficiency management plans.
Clause 73 amends section 749 relating to the power to enter places for
other purposes.
Clause 74 omits references in section 932(1) to who may bring
proceedings for offences relating to provisions previously administered by
the commission.
Clause 75 omits section 1013(2) relating to approved forms of the
commission.
Clause 76 amends the regulation making power for the Water Regulation
2002 to provide for matters related to section 360C and section 360V.
Clause 77 inserts a new chapter 9, part 5, division 19 (Transitional
provisions for Water and Other Legislation Amendment Act 2012).
New section 1210 provides definitions for division 19 (Preliminary).
New section 1211 (Transfer of funds into Groundwater Impact Assessment
Fund) provides that the following amounts held by the QWC immediately
before the commencement must be paid into the Groundwater Impact
Assessment Fund -
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
ˇ the balance of all levy amounts paid by petroleum tenure holders
under previous section 360FA; and
ˇ the balance of all interest paid on levy amounts by petroleum tenure
holders because of late payment of levy amounts.
New section 1212 (Notices to pay levy) provides that where notices have
been provided to petroleum tenure holders before the commencement, the
petroleum tenure holder continues to be liable to pay the levy as stated in
the notice. The amount to be paid by the petroleum tenure holder under the
notice must now be paid into the Groundwater Impact Assessment Fund.
The petroleum tenure holder continues to be liable to pay the levy for the
relevant financial year, meaning 2010-11 or 2011-12.
New section 1213 provides definitions for subdivision 3 (Transfer of
particular authorities to bulk water supply authority).
New section 1214 provides that subdivision 3 applies to certain stated
water authorities.
New section 1215 provides that the transfer scheme relates to the transfer
of water entitlements from the WGM to the Queensland Bulk Water Supply
Authority and to other entities.
New section 1216 provides that the Minister may make a transfer notice to
deal with water authorities, including transferring, replacing and imposing
requirements on authorities.
New section 1217 enables the chief executive to take whatever action is
necessary or convenient for the transfer of the authority under the transfer
notice.
New section 1218 provides that, where an authority to take or interfere with
water is held by a receiving entity, or continues to be held by a transferring
entity, under a transfer notice, that authority continues under the Act until
(a) the chief executive grants a water license to replaced the authority or (b)
the authority is replace with a water entitlement, whichever happens first.
New section 1219 provides that a reference in an existing supply agreement
to the transferring entity will be taken as a reference to the receiving
authority.
New section 1220 provides definitions for the relevant transitional
provisions as they relate to transitioning from the market rules to the bulk
code and from the section 360ZDD contracts to the new bulk supply
agreements.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
New section 1221 ends the effect of the existing section 360ZDD contracts
on the day that the new bulk water supply agreements made under section
360G take effect. The provision also recognises that some of the terms of
the existing section 360ZDD contracts will survive termination if the
contract nominates the term as a surviving one or if a transitional regulation
allows its continuance (for up to a year, after which it must either be
continued in new legislation or the new contracts would have to be
amended to deal with the substantive issue). The `old' liability provisions
under section 360ZDI would continue to apply to any `survived' clauses.
New section 1222 provides for any future transfer of raw water customers
of an SEQ service provider to Queensland Bulk Water Supply Authority. It
does this by providing that an existing customer contract ends on the day
that a new contract is entered into with the Authority.
New section 1223 provides that the market rules continue to have effect
after the commencement of clause 54, and end on the day the Code takes
effect under new section 360M.
New section 1224 (Consultation for first code) recognises that consultation
for the first Code may occur prior to the making of the Bill.
New section 1225 provides a transitional regulation making power which
may be used for up to one year after commencement to deal with oversights
regarding transitional market rules, grid contract matters, certain raw water
customer contracts or other matters for which the Act does not make
provision or sufficient provision.
New section 1226 provides that a system operating plan for the SEQ region
in effect on 31 December 2012 will continue to have effect until the making
of a regulation under section 344 setting desired levels of service objectives
for SEQ.
New section 1227 delays the application of the offence provisions in
relation to the requirement of water service providers in the SEQ or a
designated region to have a water security program until 1 year after a
regulation is made under section 344.
New section 1228 provides that a notice given to a customer by a water
service provider before commencement to prepare a water efficiency
management plan is, at commencement, of no effect.
New section 1229 provides that a water efficiency management plan
prepared by a customer before commencement is, at commencement, of no
effect.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
New section 1230 provides that a commission water restriction ceases to
have effect upon commencement.
New section 1231 provides that an underground water impact report given
to the chief executive by the former commission under section 370, and
approved by the chief executive under section 385(1) before
commencement, is taken to have been given to the chief executive by the
office.
New section 1232 (Expenditure Advisory Committee) provides for the
continuation of the Expenditure Advisory Committee established by the
QWC, under the previous section 360FA, as a committee established under
section 460 with the same name as the former committee.
New section 1233 provides that, at commencement, the person occupying
the role of the General Manager, Coal Seam Gas Water will be taken to be
appointed as the first manager of the OGIA.
New section 1234 provides a transitional regulation-making power for up
to one year, enabling a regulation to make provision of a saving or
transitional nature about a matter necessary to give effect to the transition
from the former commission to the OGIA, and for which the Act does not
make provision or sufficient provision.
Clause 78 amends schedule 4 (Dictionary) to remove old terms relevant to
the existing institutional arrangements, contracts and market rules and
inserts new definitions relevant to the new arrangements.
Part 5 Amendment of Water
Fluoridation Act 2008
Clause 79 states that part 5 amends the Water Fluoridation Act 2008 (WF
Act).
Clause 80 inserts a new subsection 6A into the WF Act as a consequence of
the proposed amendments to section 8. That is, to specify that a public
potable water supplier will only be able to apply for an exemption for a
relevant public potable water supply under their control or management if
it is an eligible relevant public potable water supply.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
A public potable water supplier is currently defined for the purposes of the
Act to mean the owner of a water treatment plant, or where there is no
water treatment plant, the owner of the reticulation equipment for the water
supply.
A relevant public potable water supply is also defined for the purposes of
the WF Act to mean a public potable water supply supplying potable water
to at least 1,000 members of the public.
An application for an exemption will be able to be submitted for a relevant
public potable water supply under section 8 if a substantial financial
investment in the construction of fluoride dosing equipment had not been
undertaken by the public potable water supplier responsible for the supply,
immediately before the commencement of part 5 of the Bill.
The new subsection 6A also clarifies which relevant public potable water
supplies are not considered to be an eligible relevant public potable water
supply. A water supply would not be eligible to apply for an exemption
under section 8 if, immediately before the commencement of part 5 of the
Bill:
ˇ fluoride was being added to the water supply by the public potable
water supplier responsible for the supply; or
ˇ fluoride dosing equipment had been constructed but dosing had not
commenced; or
ˇ a substantial financial investment in the construction of fluoride
dosing equipment for the supply had been made.
In addition, a water supplier will not be able to apply for an exemption if
they control or manage:
ˇ one water supply that services an urban centre with a population of
more than 10,000; or
ˇ a water supply that services a number of urban centres or localities
with a total population of more than 10,000; or
ˇ a number of water supplies that provide an integrated service to an
urban centre with a population of more than 10,000.
For the purposes of this provision, the terms urban centre and locality are
defined having regard to the Australian Standard Geographical
Classification Urban Centres and Localities Digital Boundaries, Australia,
2006 published by the Australian Bureau of Statistics (1259.0.30.003). The
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
definition of urban centre is to be added to the Dictionary for the Act by
clause 86.
If a relevant public potable water supply is not an eligible relevant public
potable water supply, the responsible water supplier will be obliged to
continue to fluoridate the water supply, progress to the implementation of
fluoridation by the date prescribed within Schedule 1 of the Regulation, or
if that date has passed, implement fluoridation as soon as possible.
Clause 81 replaces section 7. The new section 7 will continue to impose a
statutory obligation on a public potable water supplier for a relevant public
potable water supply to add fluoride to the water supply on or before the
date prescribed for the supply under the Water Fluoridation Regulation
2008.
However, this obligation does not capture those water suppliers who
elected to commence fluoridation under the repealed Fluoridation of
Public Water Supplies Act 1963, which preceded the current Act.
Given that these suppliers were already fluoridating at the time the Act
commenced, a prescribed date by which they were required to commence
fluoridation under the new Act was not included in Schedule 1 of the
Regulation. Consequently, a new clause has been added to section 7 to
specify that if a public potable water supplier was adding fluoride to a
relevant public potable water supply under their control or management
before the commencement of the WF Act and they were still doing so as of
1 December 2012, the water supplier must continue to fluoridate the water
supply.
Clause 82 amends section 8 which enables a public potable water supplier
for a relevant public potable water supply to apply for an exemption from
the obligation that fluoride must be added to the water supply under section
7.
The Bill will amend section 8 to clarify that a public potable water supplier
will only be able to apply for an exemption if a relevant public potable
water supply under the supplier's control or management is an eligible
relevant public potable water supply (see new subsection 6A).
In addition, the amendments to section 8 will expand the grounds under
which an exemption may be granted by the Minister. The criteria detailed
in subsection (1)(a) and (1)(b) are to be retained so that an exemption may
be granted if:
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
ˇ the water supply contains naturally occurring fluoride at an average
concentration that is within the minimum and maximum
concentrations prescribed under the Regulation or above that
maximum concentration; or
ˇ fluoride cannot be maintained at an average concentration that is
within the minimum and maximum concentrations prescribed under
the Regulation because of the natural water chemistry of the water
supply.
The exemption provided for by subsection (1)(c) is to be reworded in order
to address difficulties water suppliers have experienced in being able to
demonstrate that they are eligible for an exemption under this criterion.
Currently, an exemption may be granted if the addition of fluoride to a
water supply is unlikely to result in a substantial ongoing oral health
benefit to the community, or part of the community, of the area serviced by
a water supply and the number of members of the public who consume
water from the water supply is less than 1,000.
Under the proposed amendment, an exemption may be granted if the
addition of fluoride to the water supply is unlikely to result in a substantial
ongoing oral health benefit to 1,000 or more members of the public
serviced by the water supply. In other words, it will no longer be necessary
for an applicant to prove that no part of the community (no matter how
small) will receive an ongoing oral health benefit, just that no more than
1,000 persons will receive the benefit.
Three new exemption criteria are to be inserted into section 8, namely if:
ˇ there will be an unreasonable cost to the members of the public, or the
water supplier, of implementing and maintaining the addition of
fluoride to the water supply for an urban centre of fewer than 10,000
members of the public; or
ˇ the water supplier cannot ensure the effective and safe addition of
fluoride to the water supply, for example due to the inability of the
supplier to employ and retain adequately qualified persons capable of
operating the fluoride dosing equipment or due to the natural
properties of the water such as temperature; or
ˇ there are water quality issues relating to the safe supply of potable
water for the members of the public who consume water from a water
supply. For example, if issues concerning the quality of the drinking
water need to be addressed prior to commencement of fluoridation.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
The application and decision making processes for the granting of an
exemption are not to be amended. The Act will continue to require that a
written application be submitted to the Minister for Health, including
sufficient information to enable the Minister to make a decision on the
application. All applications will be referred to the Queensland
Fluoridation Committee, which must advise the Minister on the merits of
the application within 90 days of receiving an application.
Exemptions may be granted, on conditions, for a period of five years from
the date the water supplier is notified of the Minister's decision. At the end
of the five year exemption period, a supplier must either apply for a new
exemption prior to the expiry of the current exemption, or comply with the
requirement under section 7 and commence fluoridation.
In the event that an application for an exemption is refused, a water
supplier will have 12 months to comply with the obligation under section 7
from the date the supplier is advised of the Minister's decision.
Clause 83 amends section 9, which sets out the applicable time frames
should the Minister decide to grant or refuse to grant an exemption from
the obligation that a relevant public potable water supply be fluoridated.
Section 9 is to be amended as a consequence of the proposed changes to
section 7 and the inclusion of new subsection 6A. As outlined above, the
Bill amends section 7 to specify that a public potable water supplier for a
pre-existing fluoridated water supply must continue to fluoridate the
supply. In addition, the new subsection 6A(2)(a) clarifies that these
supplies are not an eligible relevant public potable water supply for which
an exemption may be sought under section 8. Consequently, the existing
references to section 7 need to be amended so that reference is only made
to subsection 7(1).
Clause 84 amends section 10 which empowers the Minister to refuse an
application for an exemption if the Minister reasonably believes the
application is vexatious. The existing reference to section 7 in this
provision also needs to be amended as a consequence of the proposed
changes to section 7 and the inclusion of new subsection 6A.
Clause 85 inserts a new part 12 into the Act comprised of section 102. This
section specifies that an application for an exemption may be dealt with
under section 8, as amended by the Bill, if the application was not dealt
with prior to the commencement of the amendments to the Act as provided
for by part 5 of the Bill.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Clause 86 inserts three new definitions into the dictionary as a consequence
of the amendments being made to the Act - that is, eligible relevant public
potable water supply, relevant commencement and urban centre.
Eligible relevant public potable water supply is defined in new subsection
6A as discussed above.
Relevant commencement is to be defined to mean the commencement of
part 5 of the South East Queensland Water (Restructuring) and Other
Legislation Amendment Act 2012, which provides for the amendments to
the WF Act.
The term urban centre (used in the new section 6A and section 8) is to be
defined in accordance with the Australian Standard Geographical
Classification Urban Centres and Localities Digital Boundaries, Australia,
2006 published by the Australian Bureau of Statistics (1259.0.30.003).
Part 6 Amendment of Water Supply
(Safety and Reliability) Act 2008
Clause 87 states that part 6 amends the Water Supply (Safety and
Reliability) Act 2008 (Water Supply Act).
Clause 88 amends section 13 to require certain entities to give the regulator
(of the Office of Water Supply Regulator) certain information. The
amendments reflect the new bulk water arrangements with the
establishment of the single bulk water supply authority and the abolition of
the WGM.
Clause 89 amends section 41 to extend the power for water service
providers to impose restrictions to all Queensland, upon meeting the stated
criteria, and enables the imposition of restrictions of an urgent nature, to
provide for asset failures and other emergencies.
Clause 90 amends section 42 to extend the power of the regulator to direct
water service providers to impose restrictions to apply to the whole of
Queensland.
Clause 91 amends section 51 to extend the power of water service
providers to make water efficiency management plans under section 52 to
the whole of Queensland.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Clause 92 omits the requirement in section 52 for water service providers
to seek the approval of the chief executive of the form of a notice requiring
their customers to have a water efficiency management plan.
Clause 93 omits the reference to "designated region" from section 132.
Clause 94 omits the reference to "commission" in section 138.
Clause 95 omits the reference to "commission water restriction" in section
139.
Clause 96 extends the application of section 169 (Restricting domestic
water supply in particular circumstances) to non-domestic and omits the
reference to "commission water restriction".
Clause 97 amends section 318 (Meaning of a relevant location for a
drinking water service provider) to reflect the new bulk water arrangements
with the establishment of the single bulk water supply authority and the
abolition of the WGM.
Clause 98 inserts new section 356A (Compliance with safety or
development condition) to provide that the owner of a referable dam to
which a safety condition or development condition applies must not
contravene the condition. An offence with the maximum penalty of 1665
penalty units is created.
While this is a new offence for the Water Supply Act, safety conditions are
deemed to be development conditions attaching to a development permit.
Non-compliance with a development permit and the conditions attaching to
the permit is an offence under the Sustainable Planning Act 2009 for which
a maximum financial penalty of 1665 penalty units applies. This provision
will enable the compliance and enforcement provisions of the Water
Supply Act to be relied upon instead to ensure compliance with dam safety
conditions.
Clause 99 inserts new section 497(1)(d) to limit the persons who may bring
a proceeding for an offence against a provision of Chapter 4 (Referable
dams and flood mitigation) to the Attorney-General and the chief
executive. The chief executive is the dam safety regulator under the Water
Supply Act.
Clause 100 amends section 579 (Regulator may share particular
information) to reflect the new bulk water arrangements with the
establishment of the single bulk water supply authority and the abolition of
the WGM.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Clause 101(1) amends schedule 3 (Dictionary) to remove the definition of
the WGM due to its proposed abolition. Clause 101(2) inserts a definition
of `development permit' for the purpose of Chapter 4 (Referable dams and
flood mitigation).
Part 7 Minor and consequential
amendments
Schedule Acts amended
Part 1 Amendments commencing on
assent
Local Government Act 2009
Clause 102 Item 1 inserts a note into section 290 of the Local Government
Act 2009 to clarify that some of the employees to whom this section
applies, since the enactment of this section, have been transferred to the
Queensland Bulk Water Supply Authority under a regulation made under
section 105 of the Restructuring Act. The LG Super scheme continues to
apply to those employees. Refer also to comments about clause 102 Item
2.
Clause 102 Item 2 inserts a transitional provision into the Local
Government Act 2009 to facilitate the continued LG Super membership of
LinkWater employees who are, or have been, transferred to the Queensland
Bulk Water Supply Authority.
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South East Queensland Water (Restructuring) and Other Legislation Amendment Bill 2012
Part 2 Amendments commencing by
proclamation
Energy and Water Ombudsman Act 2006
Clause 102 Items 1 to 5 make minor consequential amendments to Energy
and Water Ombudsman Act 2006.
Public Service Act 2008
Clause 102 Item 1 makes minor consequential amendments to the Public
Service Act 2008.
South East Queensland Water (Restructuring) Act 2007
Clause 102 Items 1 to 7 make minor consequential amendments to update
the language of the Restructuring Act to reflect the fact that the Queensland
Bulk Water Supply Authority will be the only entity to be governed by
chapter 2 of the Restructuring Act (i.e. remove references to "new water
entity" and replace it with a reference to the "Queensland Bulk Water
Supply Authority").
Water Act 2000
Clause 102 Items 1 to 6 make minor consequential amendments to the
Water Act 2000 to replace references to the "water grid manager" and "new
water entities" with a reference to the Queensland Bulk Water Supply
Authority.
ŠThe State of Queensland 2012
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