South-East Queensland Water (Distribution and Retail Restructuring) Act 2009

An Act to further restructure the water industry in south-east Queensland

Long title amd 2009 No. 46 s 109

1Short title

This Act may be cited as the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009.

s 1 amd 2009 No. 46 s 110

2Commencement

(1)Sections 108 to 110 commence on the day after the date of assent of this Act.

(2)Sections 111 and 112 commence on the day after the repeal of the Integrated Planning Act 1997 under the Sustainable Planning Act 2009.

3Purposes of Act

The purposes of this Act are to do the following for the SEQ region—

(a)improve water supply coordination and management;

(b)deliver improved and more efficient water services and wastewater services to customers;

(c)improve the management of water and wastewater infrastructure.

4Achievement of purposes

(1)The purposes are achieved by—

(a)continuing the SEQ region water industry restructure started under the 2007 restructuring Act; and

(b)providing for the making of a customer water and wastewater code for the provision of water services and wastewater services to customers in the SEQ region.

(2)This Act provides for the continued restructure by—

(a)creating new integrated retail and distribution authorities (called ‘distributor-retailers’) to deliver the services to customers within a particular area for each (called its ‘geographic area’); and

(b)providing for the following to, subject to this Act, deliver the services to customers in their local government areas from 1 July 2012—

(i)the Gold Coast City Council;

(ii)the Logan City Council;

(iii)the Redland City Council; and

(c)providing for particular matters relating to distributor-retailers to be fixed by agreement with the local governments for their geographic area (called their ‘participating local governments’); and

(d)facilitating the transfer to distributor-retailers of the infrastructure and functions of their participating local governments as service providers for the services; and

(e)providing for all distributor-retailers to become service providers on and from 1 July 2010; and

(f)the inclusion of particular provisions about the performance of the functions of distributor-retailers as service providers.

s 4 amd 2010 No. 20 s 4; 2010 No. 53 s 139; 2012 No. 1 s 4; 2012 No. 39 s 4

5Who are a distributor-retailer’s participating local governments

(1)A distributor-retailer’s participating local governments are—

(a)for the Northern SEQ Distributor-Retailer Authority—Sunshine Coast Regional Council, Noosa Shire Council and Moreton Bay Regional Council; and

(b)for the Central SEQ Distributor-Retailer Authority—Brisbane City Council, Ipswich City Council, Scenic Rim Regional Council, Lockyer Valley Regional Council and Somerset Regional Council; and

(c)for the Southern SEQ Distributor-Retailer Authority—Gold Coast City Council, Redland City Council and Logan City Council.

(2)In a provision about a board, a reference to a participating local government is a reference to a participating local government under subsection (1) for the board’s distributor-retailer.

s 5 amd 2012 No. 1 s 5; 2013 No. 42 s 42

6What is a distributor-retailer’s geographic area

A distributor-retailer’s geographic area is the area that consists of the local government areas of all of its participating local governments.

7Dictionary

The dictionary in the schedule defines particular words used in this Act.

ch 1 pt 3 div 3 hdg ins 2012 No. 1 s 6

7AReferences to functions

In this Act—

(a)a reference to a function includes a reference to a power or jurisdiction; and

(b)a reference to performing a function includes a reference to exercising a power or jurisdiction.

s 7A ins 2012 No. 1 s 6

8Establishment

The following (each a distributor-retailer) are established—

(a)the Northern SEQ Distributor-Retailer Authority;

(b)the Central SEQ Distributor-Retailer Authority;

(c)the Southern SEQ Distributor-Retailer Authority.

Notes—

1For the authority mentioned in paragraph (c), see chapter 3A (Replacement of Allconnex by councils), part 9 (Dissolution of Allconnex).

2Under section 92AP, that authority will only have limited functions from 1 July 2012.

s 8 amd 2012 No. 1 s 7

9Legal status

A distributor-retailer—

(a)is not a body corporate; and

(b)is not constituted by its board or participants; and

(c)does not represent the State.

10Expiry

(1)A distributor-retailer expires at the end of 99 years after its establishment.

(2)When a distributor-retailer expires—

(a)its assets and liabilities become the assets and liabilities of its participants; and

(b)the participants become the successor in law of the assets and liabilities rateably in accordance with their participation rights under the distributor-retailer’s participation agreement.

(3)A regulation may provide for any matter necessary or convenient to give effect to this section, including, for example, a provision about all or any of the following when a distributor-retailer expires (the former entity)—

(a)the process concerning the distribution of its assets and liabilities;

(b)the transfer of the employment of the former entity’s employees and of their rights;

(c)the application of instruments relating to the former entity;

(d)the former entity’s records;

(e)the performance of the former entity’s functions immediately before the expiry.

11Functions

(1)A distributor-retailer’s primary functions are to do the following for its geographic area—

(a)purchase water;

(b)distribute water;

(c)provide the following services (relevant services) to customers—

(i)water services;

(ii)wastewater services;

(d)charge customers for relevant services;

(e)manage customer enquiries, service requests and complaints;

(f)on and from 1 July 2010—

(i)perform functions under this Act and the Water Supply Act relating to trade waste and seepage water as a sewerage service provider; and

Note—

See section 53AA (Distributor-retailers become service providers).

(ii)perform particular planning and development assessment functions under the Planning Act;

(g)anything else likely to complement or enhance a function mentioned in paragraphs (a) to (f).

(2)The primary functions are a distributor-retailer’s geographic area functions.

(3)A distributor-retailer may perform business or other functions it considers appropriate.

s 11 amd 2010 No. 20 s 5; 2011 No. 31 s 351; 2012 No. 39 s 5

12Powers

(1)A distributor-retailer has all the powers of an individual and may, for example—

(a)enter into contracts; and

(b)acquire, hold, dispose of and deal with property; and

(c)employ staff; and

(d)appoint agents and attorneys; and

(e)engage consultants; and

(f)fix charges and other terms for services and other facilities it supplies; and

(g)do anything else necessary or convenient to be done for its functions.

(2)Without limiting subsection (1), a distributor-retailer has the powers given to it under an Act.

(3)Despite subsections (1) and (2), a distributor-retailer’s powers are subject to any limitations under the Acts mentioned in part 2.

(4)However, an exercise of a power in contravention of a limitation or restriction under an Act does not invalidate or otherwise affect the exercise of the power.

(5)A distributor-retailer may sue and be sued in the name it is given under section 8.

13Functions

A distributor-retailer may perform its functions inside or outside Queensland.

s 13 sub 2012 No. 1 s 105 sch

14Statutory Bodies Financial Arrangements Act 1982

(1)A distributor-retailer is a statutory body under the Statutory Bodies Financial Arrangements Act 1982 (the SBFA).

(2)The SBFA, part 2B sets out the way in which a distributor-retailer’s powers under this Act are affected by that Act.

(3)Despite the SBFA, section 31(2) a distributor-retailer may operate an account with an overdraft facility without the Treasurer’s approval under the SBFA.

15Financial Accountability Act 2009

(1)A distributor-retailer is a statutory body under the Financial Accountability Act 2009 (the FAA).

(2)However, the provisions of a standard under the FAA about resource management do not apply to a distributor-retailer.

Note—

See the Financial and Performance Management Standard 2009, part 2, division 4 (General resource management).

(3)For applying the FAA, a reference in that Act to a statutory body reporting to a Minister is taken to be a reference to the distributor-retailer reporting, in the way provided for under its participation agreement, to its participating local governments who are also participants in the distributor-retailer.

(4)However, subsection (3) does not apply if the reporting is for the purpose of tabling in the Legislative Assembly.

(5)Any operational or strategic planning requirements under a standard under the FAA are taken to have been complied with by a distributor-retailer if the distributor-retailer complies with its planning and reporting requirements.

16Crime and Corruption Act 2001

A distributor-retailer is a unit of public administration under the Crime and Corruption Act 2001.

s 16 sub 2014 No. 21 s 94 (2) sch 2

17Right to Information Act 2009

A distributor-retailer is taken to be an agency under the Right to Information Act 2009.

17AInformation Privacy Act 2009

A distributor-retailer is taken to be an agency under the Information Privacy Act 2009.

s 17A ins 2010 No. 20 s 6

18Land Act and Land Title Act

For the Land Act and the Land Title Act, a distributor-retailer is taken to be a person authorised by law to provide a public utility service.

18APenalties and Sentences Act 1992

A distributor-retailer is taken to be a corporation for the Penalties and Sentences Act 1992.

s 18A ins 2010 No. 20 s 7

18BJoint government activity power for LGA 2009 and CBA 2010

For LGA 2009, section 10 and CBA 2010, section 12, a reference to a local government is taken to include a reference to a distributor-retailer.

s 18B ins 2012 No. 1 s 8

19Deletion of commercially sensitive matters from annual report

(1)This section applies if under another Act, an annual report relating to a distributor-retailer must be made public.

(2)The board may ask the relevant Minister to delete from the copies of the annual report a matter that is of a commercially sensitive nature.

(3)Despite the other Act, the Minister may delete the matter from the copies of the annual report that are laid before the Legislative Assembly or otherwise made public.

(4)In this section—

annual report includes any documents accompanying the report.

20Requirement for agreement

(1)A distributor-retailer must, as soon as practicable after the date of assent of this Act, enter into an agreement (a participation agreement) with its participating local governments about the following matters concerning the distributor-retailer—

(a)that the participating local governments have the right to participate in its profits;

Note—

For the distribution of assets and liabilities when the distributor-retailer expires, see section 10(2) (Expiry).

(b)the way in which distributions of its profits are to be approved for section 43;

(c)its internal management;

(d)its corporate planning requirements;

(e)its requirements about reporting to its participants;

(f)the proportions in which the local governments are to receive tax equivalents the distributor-retailer pays under section 100;

(g)any other matter concerning distributor-retailers prescribed under a regulation.

(2)Rights mentioned in subsection (1)(a) are the participation rights in the distributor-retailer.

(3)Those who hold the participation rights are the distributor-retailer’s participants.

(4)The requirements mentioned in subsection (1)(d) and (e) are the distributor-retailer’s planning and reporting requirements.

s 20 amd 2012 No. 1 s 9

21Planning and reporting requirements

(1)A distributor-retailer’s participation agreement must—

(a)require the distributor-retailer to prepare a plan about its future direction, goals and priorities for at least 5 years after the agreement takes effect; and

(b)state the matters that the plan must provide for; and

(c)ensure the distributor-retailer’s participating local governments who are also participants in the distributor-retailer are given enough information to allow them to make an informed assessment of the distributor-retailer’s operations; and

(d)state the types of information that must be given to comply with paragraph (c).

(2)Subsection (1) does not limit what may be provided for under the distributor-retailer’s planning and reporting requirements.

22Particular matters agreement may provide for

Without limiting section 20(1), the participation agreement for a distributor-retailer may provide for all or any of the following—

(a)the issuing, registration and transfer of its participation rights;

Note—

See however, section 29 (Ministerial approval required for change in particular matters).

(b)classes of participants;

(c)the obligations of participants in their capacity as participants;

(d)the voting rights of participants;

(e)the membership, powers and procedures of its board, including, for example, the term of office of its councillor-members or additional requirements to those under section 34 for their appointment or removal.

s 22 amd 2012 No. 1 s 10

23Minister’s default power to make agreement

(1)This section applies if a distributor-retailer and its participating local governments have not complied with section 20 by 30 April 2010.

(2)The Minister may make a participation agreement for the distributor-retailer.

Note—

See also section 104 (Interim participation agreement).

24When agreement takes effect

(1)A participation agreement, other than one under section 23, takes effect only on the latest of the following days—

(a)the day the Minister gives the parties to the agreement a notice that the Minister has approved it;

(b)if the agreement states a later day of effect—the later day.

(2)A participation agreement made under section 23 takes effect according to its terms.

25Tabling of agreement

(1)If the Minister approves or makes a participation agreement, the Minister must within 14 sitting days, table a copy of the agreement in the Legislative Assembly.

(2)A failure to comply with subsection (1) does not stop the agreement taking effect.

26Effect as a contract

(1)When a participation agreement for a distributor-retailer takes effect, it has effect as a contract between all of the following entities from time to time—

(a)the parties to the agreement;

(b)all other entities who are or become participants in the distributor-retailer;

(c)each member of the board.

(2)The entities are taken to have agreed to observe and perform the contract so far as it applies to them.

27Act prevails over agreement

If a provision of a participation agreement is inconsistent with a provision of this Act, the provision of this Act prevails to the extent of the inconsistency.

28Power to amend by agreement

(1)Subject to section 29, a participation agreement for a distributor-retailer may be amended—

(a)by agreement between all of its participants; or

(b)if the participation agreement provides for another way in which it can be amended—in accordance with the other way.

(2)However, a participation agreement for a distributor-retailer can not be amended to allow anyone other than a participating local government for the distributor-retailer to become a participant in it.

(3)If a local government is a participant, it may agree to the amendment only if it has passed a resolution to that effect.

(4)If a participation agreement is amended under subsection (1), the distributor-retailer must give the Minister a copy of the amended agreement as soon as practicable.

s 28 amd 2012 No. 1 s 11

29Ministerial approval required for change in particular matters

(1)A change to a participation agreement about a restricted matter concerning a distributor-retailer has no effect unless the Minister has—

(a)been given a copy of the proposed amended agreement; and

(b)by notice to the distributor-retailer approved the change.

(2)A person can not become a participant in a distributor-retailer unless—

(a)the distributor-retailer’s participation agreement or a change to the agreement approved under subsection (1), provides for the person to be, or to become, a participant; or

(b)the Minister has approved the person to be a participant in the distributor-retailer and the person’s proposed participation rights in it.

(3)In this section—

restricted matter, concerning a distributor-retailer, means—

(a)the participants in the distributor-retailer, including—

(i)who may become a participant; and

(ii)any change in participants; and

(iii)who may cease to be a participant; or

(b)the participation rights in the distributor-retailer or how the rights may be transferred or otherwise dealt with; or

(c)any provision of its participation agreement that provides for how it can be amended other than by agreement between all of the distributor-retailer’s participants; or

(d)its planning and reporting requirements.

30Tabling of amended agreement

(1)This section applies if the Minister—

(a)under section 28, is given an amended participation agreement; or

(b)gives an approval under section 29(1)(b).

(2)The Minister must within 21 sitting days, table a copy of the amended agreement in the Legislative Assembly.

(3)A failure to comply with subsection (2) does not stop the amended agreement from taking effect.

30APublication of participation agreement etc.

(1)This section applies if—

(a)a distributor-retailer or local government enters into a participation agreement; or

(b)the Minister makes a participation agreement for a distributor-retailer; or

(c)a participation agreement entered into by a distributor-retailer or a local government or made by the Minister is amended.

(2)The distributor-retailer or local government must, within 30 days after the agreement is entered into or the amendment takes effect, publish on its website—

(a)a copy of the participation agreement or amendment; and

(b)a brief summary of the agreement, or the agreement as amended, that complies with subsection (3).

Maximum penalty—200 penalty units.

(3)As a minimum, the summary must refer to each of the matters mentioned in section 20(1).

s 30A ins 2010 No. 53 s 140

31Requirement to have board

Each distributor-retailer must have a board.

32Role of boards

(1)The board is responsible for the way the distributor-retailer performs its functions and exercises its powers.

(2)The board’s role includes—

(a)deciding the strategies and the operational, administrative and financial policies to be followed by the distributor-retailer; and

(b)ensuring the distributor-retailer performs its functions and exercises its powers in a proper, effective and efficient way; and

(c)ensuring, so far as practicable, the distributor-retailer complies with its planning and reporting requirements.

33Membership in general

(1)A board is to consist of at least 5 members but can not consist of—

(a)more than the following number of councillor-members—

(i)if the distributor-retailer has more than 3 participating local governments—1 for each participating local government;

(ii)otherwise—3; and

(b)more councillor-members than independent members.

(2)The members must be appointed under this division by the distributor-retailer’s participants.

(3)In this section—

councillor-member means a member of the board who is a councillor of a participating local government for the distributor-retailer.

independent member means a member of the board who is not a councillor-member.

s 33 sub 2012 No. 1 s 12; 2014 No. 16 s 46

34Councillor-members

(1)Unless the participation agreement provides otherwise, a board’s councillor-members can not be—

(a)appointed for a term of more than 4 years; or

(b)appointed or reappointed if, at any time, they have already served a term of 4 years or terms totalling 4 years.

Example—

A is a councillor-member appointed for a 4-year term. A ceases to be a councillor of the relevant council after 3 of those years. B, another councillor of the council, is appointed to replace A for the rest of that term. B is re-elected as a councillor of the council. The participation agreement does not provide for more than a 4-year term for councillor-members. Therefore, B can only be reappointed for 3 more years.

(2)A councillor-member’s appointment ends if—

(a)the person stops being a councillor of the relevant council; or

(b)either—

(i)all participating local governments have, by resolution, so agreed; or

(ii)the ending happens under the participation agreement.

(3)A vacancy under subsection (2) may be filled—

(a)only by—

(i)a councillor of the relevant council; or

(ii)if the distributor-retailer’s participation agreement provides for a councillor of a different relevant council to fill the vacancy—the other councillor; and

(b)in the way provided for under the participation agreement.

(4)A councillor-member’s appointment is suspended during any period of suspension of the person as a councillor of the relevant council.

s 34 sub 2012 No. 1 s 12

35Independent members

(1)The matters to which regard must be had in considering whether to appoint a person as an independent member include the person’s previous experience and ability to—

(a)contribute to the carrying out of the board’s role under section 32; and

(b)contribute to the strategic oversight of the distributor-retailer’s functions; and

(c)bring an independent judgment to bear on the board’s decision-making.

(2)An independent member—

(a)holds office for the term stated in the person’s appointment; and

(b)is, if not disqualified, eligible for reappointment.

(3)A person’s appointment as an independent member ends if the person becomes disqualified.

(4)In this section—

disqualified means unable to be appointed because of section 36.

s 35 sub 2012 No. 1 s 12

36Disqualifications for independent member

A person can not be appointed as an independent member if the person—

(a)is a public service employee; or

(b)is an employee of any local government in the SEQ region; or

(c)is an insolvent under administration; or

(d)has a conviction, other than a spent conviction, for an indictable offence; or

(e)is a member of a board of—

(i)another distributor-retailer; or

(ii)the Queensland Bulk Water Supply Authority established under the 2007 restructuring Act.

s 36 sub 2012 No. 1 s 12

amd 2012 No. 39 s 6

36ATerms of membership

(1)A board member holds office on the terms of appointment provided for under a participation agreement of the distributor-retailer, and subject to this Act.

(2)A councillor-member can not receive, and the distributor-retailer can not confer, a benefit on a councillor-member—

(a)by way of remuneration as the holder of that office; or

(b)in connection with retirement from or other ending of the office.

(3)However, the councillor-member may receive a benefit conferred on the member under LGA 2009 or CBA 2010.

(4)For applying CBA 2010 under subsection (3), the relevant provisions of those Acts apply as if a reference to a corporate entity of the relevant council included a reference to a distributor-retailer.

Note—

For LGA 2009, see the Local Government (Operations) Regulation 2010, section 43.

(5)An independent member may receive from a distributor-retailer, and a distributor-retailer may confer on an independent member, a benefit for the following only if it complies with the participation agreement—

(a)remuneration as the holder of that office;

(b)a matter for, or in connection with, retirement from or other ending of the office.

(6)A purported benefit conferred or received that can not be made under this section is of no effect.

(7)In this section—

benefit means a payment made or an interest in property or other valuable consideration or benefit given or transferred.

s 36A ins 2012 No. 1 s 12

36BChairperson

(1)A distributor-retailer must have an independent member as its chairperson.

(2)The chairperson must be—

(a)appointed in the way provided for under the distributor-retailer’s participation agreement; or

(b)if the participation agreement does not provide for how the appointment takes place—elected by the board.

s 36B ins 2012 No. 1 s 12

37Conduct of business

Subject to this division, a board may conduct its business, including its meetings, in the way it considers appropriate.

38Time and place of meetings

(1)Board meetings are to be held at the times and places the board decides.

(2)The chairperson of a board may at any time call a meeting of the board.

(3)The chairperson of a board must call a meeting of the board if asked in writing to do so by at least 2 members of the board.

39Presiding at meetings

(1)The chairperson of a board is to preside at all meetings of the board at which the chairperson is present.

(2)If the chairperson is absent from a board meeting, including because of a vacancy in the office, a member chosen by the members present is to preside at the meeting.

40Conduct of meetings

(1)A quorum of a board must consist of at least 1 independent member.

(2)A question at a board meeting is decided by a majority of the votes of the members present when the question is decided.

(3)Each member present at the meeting has a vote on each question to be decided and if the votes are equal the member presiding also has a casting vote.

(4)A board may hold meetings or allow members to take part in its meetings by using any technology that reasonably allows members to hear and take part in discussions as they happen.

Example of use of technology—

teleconferencing

(5)A member who takes part in a meeting under subsection (4) is taken to be present at the meeting.

(6)A resolution is validly made by a board even if it is not passed at a board meeting, if—

(a)notice of the resolution is given under procedures approved by the board; and

(b)a majority of the board members give written agreement to the resolution.

s 40 amd 2012 No. 1 s 13

41Minutes

(1)A board must keep minutes of its meetings.

(2)A board must keep a record of any resolutions made under section 40(6).

42Disclosure of interests

(1)This section applies to a member of a board (the interested member) if—

(a)the member has an interest in an issue being considered or about to be considered by the board; and

(b)the interest could conflict with the proper performance of the member’s duties about the consideration of the issue.

(2)After the relevant facts come to the interested member’s knowledge, the member must disclose the nature of the interest to a board meeting.

(3)Unless the board otherwise directs, the interested member must not—

(a)be present when the board considers the issue; or

(b)take part in a decision of the board about the issue.

(4)The interested member must not be present when the board is considering whether to give a direction under subsection (3).

(5)If there is another person who must under subsection (2) also disclose an interest in the issue, the other person must not—

(a)be present when the board is considering whether to give a direction under subsection (3) about the interested member; or

(b)take part in making the decision about giving the direction.

(6)If—

(a)because of this section a board member is not present at a board meeting for considering or deciding an issue or for considering or deciding whether to give a direction under subsection (3); and

(b)there would be a quorum if the member were present;

the remaining members present are a quorum of the board for considering or deciding the issue or for considering or deciding whether to give the direction at the meeting.

(7)If there are no members who may remain present for considering or deciding an issue, the distributor-retailer’s participants may, by each signing consent to a proposed resolution, consider and decide the issue.

(8)A disclosure under subsection (2) must be recorded in the board’s minutes.

(9)To remove any doubt, it is declared that the fact that a relevant council has an interest in an issue does not, of itself, mean that the councillor-member for the council has an interest in the issue.

s 42 amd 2012 No. 1 s 14

43Approval required for profit distribution

A distributor-retailer must not distribute any of its profits unless the distribution has been approved in the way provided for under its participation agreement.

44Appointment of chief executive officer

(1)Each distributor-retailer must have a chief executive officer.

(2)The chief executive officer is to be appointed by the board.

(3)The chief executive officer is an employee of the distributor-retailer.

45Term of appointment

(1)Subject to this section, the chief executive officer holds office for the term stated in his or her contract of employment.

(2)If otherwise qualified, the chief executive officer is eligible for reappointment.

(3)The board may at any time end the appointment for any reason or none.

(4)The ending of the appointment under subsection (3) does not affect any rights to compensation to which the chief executive officer is entitled under the contract of employment.

(5)The chief executive officer may resign by giving a signed notice of resignation to the board at least the required period before the notice is to take effect.

(6)The chief executive officer’s appointment ends if he or she stops being qualified to be the chief executive officer.

(7)In this section—

required period means the period stated in the chief executive’s contract of employment or otherwise agreed with the board.

46Conditions of appointment

For matters not provided for under this Act or stated in the contract of employment, the chief executive officer holds office on the terms of appointment decided by the board.

47Qualifications for appointment

A person can not be appointed or continue in office as the chief executive officer if the person—

(a)is an insolvent under administration; or

(b)has a conviction, other than a spent conviction, for an indictable offence; or

(c)is not able to manage a corporation because of the Corporations Act, part 2D.6; or

(d)is named in the register held by ASIC under the Corporations Act, section 1274AA.

48Chief executive officer’s responsibilities

(1)A distributor-retailer’s chief executive officer is—

(a)responsible for managing its affairs under this Act, other relevant legislation and the board’s policies; and

(b)for the following provision or Acts, taken to be its principal officer—

•the Evidence Act 1977, section 134A

•the Right to Information Act 2009

•the Information Privacy Act 2009.

(2)However, performance of the responsibility under subsection (1)(a) is subject to the board’s directions.

s 48 sub 2010 No. 53 s 141

49Group directions

(1)A distributor-retailer’s participating local governments may give it a written direction (a group direction) about the way the distributor-retailer is to perform its functions.

(2)However, the direction may be given only if—

(a)it has been decided to be given by—

(i)all of the local governments; or

(ii)the type of majority of them (the required majority) required under the distributor-retailer’s participation agreement; and

(b)all of the local governments or the required majority—

(i)are satisfied the direction is necessary and in the public interest of the distributor-retailer’s geographic area; and

(ii)have asked the board to advise all of the local governments whether, in the board’s opinion, complying with the direction is consistent with the performance of the distributor-retailer’s functions.

s 49 amd 2012 No. 1 s 15

49AIndividual directions

(1)This section applies for any participating local government (the council) of a distributor-retailer.

(2)The council may give the distributor-retailer a written direction (an individual direction) about the way the distributor-retailer is to perform its functions relating to the council’s local government area about any of the following—

(a)charges mentioned in section 99BOB(b) and (c);

(b)the distributor-retailer’s annual capital works program under section 100B.

(3)However, the council may give the direction only if—

(a)it is satisfied the direction is necessary and in the public interest to the extent it relates to the local government area; and

(b)it has given the board and other participating local governments of the distributor-retailer a notice—

(i)stating the proposed direction; and

(ii)asking the board for its written opinion about the direction within the required period; and

(c)it has considered any written opinion of the board given to it within the required period; and

(d)its compensation liability because of the effects of the direction has been agreed or decided under section 99BZD.

(4)The opinion may include an amount claimed for, or particulars of, the compensation liability for the distributor-retailer or all or any of its other participating local governments.

(5)In this section—

required period means the following period after the giving of the notice—

(a)generally—1 month;

(b)if the distributor-retailer’s participation agreement provides for another period for giving the opinion—the other period.

s 49A ins 2012 No. 1 s 16

amd 2012 No. 39 s 7; 2014 No. 16 s 101 sch 1; 2014 No. 36 s 56 sch 1

50Publication of directions

The participating local governments that give a group direction, or the participating local government that gives an individual direction, must within 21 days after the direction is given ensure a copy—

(a)is given to the Minister; and

(b)is open to inspection at the local government’s public offices; and

(c)is published in a newspaper circulating in all of the distributor-retailer’s geographic area.

s 50 amd 2012 No. 1 s 17

51Compliance with directions

(1)This section applies if a distributor-retailer is given a group direction or an individual direction.

(2)The board must take reasonable steps to ensure the direction is complied with unless it is unlawful to do so, or complying with the direction in the way directed would constitute an offence against this Act or another Act.

(3)Regard must be had to the direction in deciding, for this Act or any other relevant law, whether or not a board member has exercised an appropriate degree of care and diligence in discharging the member’s duties.

s 51 sub 2012 No. 1 s 18

52Authentication of documents

A document made by a distributor-retailer is sufficiently made if it is signed by—

(a)its chief executive officer; or

(b)the chairperson of its board; or

(c)another person authorised by its board.

52ARelationship between councillor-member functions and councillor functions

While a councillor-member is acting in the person’s capacity as a councillor-member, the member’s responsibilities as a councillor under LGA 2009 or CBA 2010 do not apply.

s 52A ins 2012 No. 1 s 19

53Delegation

(1)A distributor-retailer may delegate any of its functions to a member of its board, its chief executive officer or any of its appropriately qualified employees.

(2)However, a function can not be delegated under subsection (1) to a person to whom a circumstance mentioned in section 47 applies.

(3)A board may delegate any of its functions to—

(a)a committee of members of the board; or

(b)the distributor-retailer’s chief executive officer.

(4)The chief executive officer of a distributor-retailer may delegate his or her functions, including a function delegated to the chief executive officer, to an appropriately qualified employee of the distributor-retailer.

Note—

For general laws about delegation, see the Acts Interpretation Act 1954, section 27A.

(5)Without limiting subsection (1), a distributor-retailer may delegate the following functions to its relevant participating local government—

(a)functions under chapter 2C relating to the appointment of water connection officers;

(b)functions under chapter 4C;

(c)functions as a referral agency for a particular development application.

(6)A relevant participating local government may subdelegate a function delegated to it under subsection (5) to an appropriately qualified officer or employee of the local government.

(7)Without limiting subsection (4), the chief executive officer of a distributor-retailer may delegate his or her functions under sections 99BRBB, 99BRBC and 99BRBD to a relevant participating local government of the distributor-retailer.

(8)A delegation of a chief executive’s power to a participating local government may permit the subdelegation of the power to an appropriately qualified person.

(9)In this section—

building work see the Building Act 1975, section 5.

particular development application, for a distributor-retailer, means a development application for carrying out building work for a building or structure on a lot that contains, or is adjacent to a lot that contains, the distributor-retailer’s infrastructure.

referral agency, for a development application, means a referral agency for the application under the Planning Act.

s 53 def referral agency sub 2019 No. 11 s 231 sch 1 pt 1

relevant participating local government, for a function of a distributor-retailer, means the distributor-retailer’s participating local government for the local government area in relation to which the function is performed or exercised.

s 53 amd 2010 No. 20 s 8; 2012 No. 1 ss 20, 105 sch; 2013 No. 23 s 195; 2013 No. 30 s 6; 2014 No. 16 s 4; 2016 No. 27 s 454

ch 2A hdg ins 2010 No. 20 s 9

ch 2A pt 1 hdg ins 2010 No. 20 s 9

ch 2A pt 1 div 1 hdg ins 2010 No. 20 s 9

53AADistributor-retailers become service providers

(1)On and from 1 July 2010 all distributor-retailers become service providers for their geographic area functions.

(2)The Water Supply Act, section 20 does not apply to a distributor-retailer.

(3)A distributor-retailer continues to be a service provider from 1 July 2010 and subject to the Water Supply Act.

(4)A distributor-retailer must give the regulator the information mentioned in the Water Supply Act, section 12 about the distributor-retailer as a service provider as soon as practicable after 1 July 2010.

s 53AA ins 2010 No. 20 s 9

53ABParticipating local governments cease being service providers

On 1 July 2010, each distributor-retailer’s participating local governments cease to be a service provider.

s 53AB ins 2010 No. 20 s 9

53ACNotice to regulator not required for transfer under transition document

The Water Supply Act, sections 24 and 25 do not apply to a transfer under a transition document.

s 53AC ins 2010 No. 20 s 9

53ADExisting customers

(1)This section applies to a person who, immediately before 1 July 2010, was a customer of any of a distributor-retailer’s participating local governments.

(2)On 1 July 2010 the person becomes a customer of the distributor-retailer.

s 53AD ins 2010 No. 20 s 9

ch 2A pt 1 div 2 hdg ins 2010 No. 20 s 9

53AFExisting trade waste approvals

(1)On and from July 2010 all trade waste approvals given by a distributor-retailer’s participating local governments are taken to have been given by the distributor-retailer.

(2)If before 1 July 2010—

(a)a local government was required under the Water Supply Act, section 185(2) to give an approval holder a notice amending the holder’s trade waste approval; and

(b)the local government has not given that notice;

the distributor must give the notice as soon as practicable after it becomes aware of the requirement.

s 53AF ins 2010 No. 20 s 9

53AGPower to amend existing trade waste approvals for particular purposes

(1)This section applies for a trade waste approval that under section 53AF(1) is taken to have been given by a distributor-retailer (each an existing trade waste approval).

(2)Subject to section 53AH, the distributor-retailer may amend the trade waste approval to ensure the consistency of all trade waste approvals given for its geographic area (a consistency amendment).

(3)However, a consistency amendment can not be made after 30 June 2012.

(4)The distributor-retailer may, by notice, also amend the trade waste approval to make any change necessary to reflect the change from the approval being given by it instead of a participating local government.

s 53AG ins 2010 No. 20 s 9

53AHRequirements for making consistency amendment

(1)Before a distributor-retailer makes a consistency amendment of a trade waste approval, it must give the approval holder a show cause notice about the proposed amendment.

(2)If, after considering any properly made submissions by the approval holder, the distributor-retailer is still satisfied the amendment should be made, it may make the amendment by notice to the approval holder.

(3)Within 30 business days after making a decision under subsection (2), the distributor-retailer must give the approval holder an information notice about the decision.

(4)If, after considering any properly made submissions by the approval holder, the distributor-retailer is not satisfied the amendment should be made, it must give the approval holder a notice about the decision.

(5)A decision under subsection (2), takes effect on the later of the following—

(a)the day the information notice is received by the approval holder;

(b)the day stated in the notice.

(6)In this section—

show cause notice means a notice that complies with the Water Supply Act, section 463.

s 53AH ins 2010 No. 20 s 9

ch 2A pt 1 div 3 hdg ins 2010 No. 20 s 9

53AIAuthorised exchange of information

(1)A distributor-retailer and its participating local governments may exchange information with each other if the exchange is necessary or desirable for the distributor-retailer to perform its geographic area functions.

(2)However, information can not be exchanged under subsection (1) after 1 July 2013.

(3)This section is subject to the Information Privacy Act 2009 and the Right to Information Act 2009.

s 53AI ins 2010 No. 20 s 9

ch 2A pt 2 hdg ins 2010 No. 20 s 9

ch 2A pt 2 div 1 hdg ins 2010 No. 20 s 9

53AJPurpose of pt 2

The purpose of this part is to provide for matters about the application of particular provisions of the Water Supply Act in relation to the carrying on of a water service or wastewater service by a distributor-retailer after 1 July 2010.

s 53AJ ins 2010 No. 20 s 9

53AKApplication of pt 2

This part does not limit or otherwise affect the application of the Water Supply Act to a distributor-retailer other than to the extent stated in division 2.

s 53AK ins 2010 No. 20 s 9

ch 2A pt 2 div 2 hdg ins 2010 No. 20 s 9

53ALProvision about plans under the Water Supply Act—generally

(1)On and from 1 July 2010, the following provisions of the Water Supply Act do not apply to a distributor-retailer—

(a)sections 106 to 109, other than to the extent the sections provide for any matter about the distributor-retailer’s drinking water quality management plan under that Act;

(b)chapter 2, part 4, division 6.

(2)The following provisions of the Water Supply Act do not apply to a distributor-retailer that has a water netserv plan—

(a)chapter 2, part 4, divisions 1 and 2;

(b)chapter 2, part 4, division 4, other than to the extent the division provides for any matter about the distributor-retailer’s drinking water quality management plan under that Act.

s 53AL ins 2010 No. 20 s 9

53AMProvision about strategic asset management plan

(1)This section applies to a distributor-retailer—

(a)on 1 July 2010; and

(b)until the day the distributor-retailer has a water netserv plan.

(2)For the Water Supply Act, chapter 2, part 4, division 1, the existing strategic asset management plans for the registered services of a participating local government for the distributor-retailer are taken to be the distributor-retailer’s approved strategic asset management plans.

(3)The Water Supply Act, sections 73 and 74 do not apply to the distributor-retailer.

(4)In this section—

approved strategic asset management plan means an approved strategic asset management plan under the Water Supply Act.

existing strategic asset management plan, for a registered service of a participating local government, means an approved strategic asset management plan of the local government in effect immediately before 1 July 2010.

s 53AM ins 2010 No. 20 s 9

53ANProvision about system leakage management plan

(1)This section applies to a distributor-retailer—

(a)on 1 July 2010; and

(b)until the day the distributor-retailer has a water netserv plan.

(2)For the Water Supply Act, chapter 2, part 4, division 2, the existing system leakage management plan for the water service of a participating local government for the distributor-retailer is taken to be the distributor-retailer’s approved system leakage management plan.

(3)The Water Supply Act, sections 82 and 87 do not apply to the distributor-retailer.

(4)In this section—

approved system leakage management plan means an approved system leakage management plan under the Water Supply Act.

existing system leakage management plan, for a water service of a participating local government, means the approved system leakage management plan of the local government in effect immediately before 1 July 2010.

s 53AN ins 2010 No. 20 s 9

53AOProvision about drinking water service

(1)This section applies to a distributor-retailer—

(a)on 1 July 2010; and

(b)until the earlier of the following—

(i)1 July 2011;

(ii)the day the distributor-retailer has an approved drinking water quality management plan.

(2)For the Water Supply Act, chapter 2, part 4, division 3, subdivision 1, the existing drinking water plan for a drinking water service of a participating local government for the distributor-retailer is taken to be the distributor-retailer’s approved drinking water quality management plan.

(3)In this section—

approved drinking water quality management plan means an approved drinking water quality management plan under the Water Supply Act.

existing drinking water plan, for a drinking water service of a participating local government, means the approved drinking water quality management plan of the local government in effect immediately before 1 July 2010.

s 53AO ins 2010 No. 20 s 9

53APProvision about service areas—before water netserv plan is in effect

(1)This section applies to a distributor-retailer until the day the distributor-retailer has a water netserv plan.

(2)On 1 July 2010, the service area for a distributor-retailer as a service provider under the Water Supply Act, chapter 2, part 5, consists of the existing service areas of its participating local governments.

(3)The distributor-retailer may amend the service area by adding an area to, or removing an area from, the service area.

(4)If the distributor-retailer amends the service area, the distributor-retailer must publish a notice of the amendment in a newspaper circulating generally throughout its geographic area.

(5)In this section—

existing service area, of a participating local government, means the local government’s service areas under the Water Supply Act immediately before 1 July 2010 that relate to the distributor-retailer’s water service or wastewater service.

s 53AP ins 2010 No. 20 s 9

53AQProvision about service areas—after water netserv plan is in effect

(1)This section applies to a distributor-retailer on and from the day the distributor-retailer adopts under section 99BRAB a water netserv plan.

(2)For a relevant provision—

(a)the distributor-retailer’s connection area is taken to be a service area, for both a retail water service and a sewerage service, within the meaning of the Water Supply Act; and

(b)the distributor-retailer is taken to be the service provider for the service area, for both a retail water service and a sewerage service, within the meaning of the Water Supply Act.

(3)In this section—

relevant provision means the following provisions of the Water Supply Act—

(a)section 161(9);

(b)chapter 2, part 5, divisions 3 and 5;

(c)schedule 3, definition retail water service.

s 53AQ ins 2010 No. 20 s 9

amd 2014 No. 16 s 5; 2019 No. 17 s 315

53ARProvision about recycled water management plan

(1)This section applies to a distributor-retailer on 1 July 2010.

(2)For the Water Supply Act, chapter 3, part 2, the existing recycled water management plan for a recycled water scheme of a participating local government for the distributor-retailer is taken to be the distributor-retailer’s approved recycled water management plan under that Act.

(3)In this section—

approved recycled water management plan means an approved recycled water management plan under the Water Supply Act.

existing recycled water management plan, for a recycled water scheme of a participating local government, means the approved recycled water management plan of the local government in effect immediately before 1 July 2010.

s 53AR ins 2010 No. 20 s 9

ch 2A pt 3 hdg ins 2010 No. 20 s 9

amd 2010 No. 53 s 143

sub 2014 No. 16 s 101 sch 1

ch 2A pt 3 div 1 hdg ins 2011 No. 21 s 9

om 2014 No. 16 s 101 sch 1

ch 2A pt 3 div 1 hdg ins 2011 No. 21 s 9

om 2014 No. 16 s 101 sch 1

ch 2A pt 3 div 1 hdg ins 2011 No. 21 s 9

om 2014 No. 16 s 101 sch 1

ch 2A pt 3 div 1 hdg ins 2011 No. 21 s 9

om 2014 No. 16 s 101 sch 1

ch 2A pt 3 div 2 hdg ins 2011 No. 21 s 9

om 2014 No. 16 s 101 sch 1

53ASApplication of pt 3

(1)This part applies if a distributor-retailer is owed all or any of the following for premises—

(a)a charge for water services or wastewater services provided by a distributor-retailer to the premises;

(b)costs the distributor-retailer may recover for the premises under the Water Supply Act, section 165;

Editor’s note—

Water Supply Act, section 165 (Recovering cost of giving access to registered service)

(c)a charge under section 99BRAN, 99BRAV or 99BRCI;

(d)a charge under a water infrastructure agreement under section 99BRCM;

(e)a liability mentioned in section 77I that is an infrastructure charge—

(i)owed to distributor-retailer under section 77J; or

(ii)the benefit of which is, under section 77K, shared with a participating local government of the distributor-retailer.

(2)The amount owed for a matter mentioned in subsection (1) is the overdue charge.

(3)For a charge mentioned in subsection (1)(c) or (d), this part only applies if the entitlements under a water approval for the charge are exercised.

s 53AS ins 2010 No. 20 s 9

amd 2010 No. 53 s 144; 2011 No. 21 s 10; 2014 No. 16 s 101 sch 1; 2014 No. 36 s 56 sch 1

53ATInterest

(1)The distributor-retailer may charge interest on the overdue charge.

(2)The rate of the interest can not be more than the rate of interest local governments may charge for late payment of rates.

(3)The interest must be calculated—

(a)on daily rests, and as compound interest; or

(b)in another way the distributor-retailer decides, if an equal or lower amount will be obtained.

s 53AT ins 2010 No. 20 s 9

amd 2010 No. 53 s 145

53AUOverdue charge is owing by any owner of the premises

(1)The overdue charge is payable by anyone who from time to time owns the premises.

(2)Subsection (1) applies whether or not the owner received the benefit of the services.

(3)Subsection (1) does not apply to any interest on the overdue charge.

s 53AU ins 2010 No. 20 s 9

53AVCharge on premises for overdue charge, CPI indexation and costs ordered

(1)The total of the following is a charge on the premises (the distributor-retailer’s charge)—

(a)the overdue charge, as CPI indexed under section 53AW;

(b)if, in a proceeding to recover the overdue charges, the court orders costs to be paid to distributor-retailer from the owner of the premises—the costs.

(2)The distributor-retailer’s charge does not include a power to sell the premises.

(3)The distributor-retailer’s charge does not secure any interest imposed under section 53AT.

(4)This section does not limit any other remedy the distributor-retailer has to recover the amount.

s 53AV ins 2010 No. 20 s 9

53AWQuarterly CPI indexation for distributor-retailer’s charge

(1)For section 53AV the overdue charge is taken to be CPI indexed for all quarters during which all or any part of the overdue charge continues to be owing.

(2)However, if the amount provided for under subsection (1) is an amount that is or includes a fraction of a dollar, the amount is taken to be the amount that is the nearest dollar, rounded up.

(3)For subsection (1), payments relating to the overdue charge are taken to be made first in reduction of the overdue charge before any interest on it.

(4)In this section—

CPI indexed, for a quarter (the relevant quarter), means the addition of any amount that equates to any percentage increase in the CPI between the following quarters—

(a)the relevant quarter;

(b)the quarter immediately before the relevant quarter.

s 53AW ins 2010 No. 20 s 9

amd 2011 No. 21 s 11; 2014 No. 16 s 101 sch 1

53AXRegistration of charge and effect of registration

(1)The distributor-retailer may register the distributor-retailer’s charge by lodging the following documents with the registrar—

(a)a request to register the charge, in the appropriate form;

(b)a certificate signed by the chief executive officer that states the distributor-retailer’s charge exists over the premises.

(2)After the charge is registered over the premises, the charge has priority over any other encumbrances over the premises, other than encumbrances in favour of—

(a)the State; or

(b)a public entity.

(3)If the amount that the charge secures is paid, the distributor-retailer must lodge the following documents with the registrar—

(a)a request to release the charge over the premises, in the appropriate form;

(b)a certificate signed by the chief executive officer stating the amount has been paid.

s 53AX ins 2010 No. 20 s 9

ch 2A pt 3A hdg ins 2010 No. 53 s 146

53AXA Application of pt 3A

This part applies if an authorised person appointed by a distributor-retailer—

(a)finds a person committing an infringement notice offence; or

(b)finds a person in circumstances that lead the authorised person to reasonably suspect a person has just committed an infringement notice offence; or

(c)has information that leads the authorised person to reasonably suspect a person has just committed an infringement notice offence.

s 53AXA ins 2010 No. 53 s 146

53AXB Power to require name and residential address

(1)The authorised person may require the person to state the person’s name and residential address.

(2)When making the requirement, the authorised person must give the person an offence warning.

(3)The person must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty for subsection (3)—35 penalty units.

s 53AXB ins 2010 No. 53 s 146

53AXC Power to require evidence of name or residential address

(1)The authorised person may also require the person to give evidence of the correctness of the stated name or residential address if, in the circumstances, it would be reasonable to expect the person to—

(a)be in possession of evidence of the correctness of the stated name or residential address; or

(b)otherwise be able to give the evidence.

(2)The person must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty for subsection (2)—35 penalty units.

s 53AXC ins 2010 No. 53 s 146

53AXD Exception if infringement notice offence not proved

The person does not commit an offence under this part if—

(a)the requirement was made because the authorised person suspected the person has committed an infringement notice offence; and

(b)the person is not proved to have committed the offence.

s 53AXD ins 2010 No. 53 s 146

ch 2A pt 4 hdg ins 2010 No. 20 s 9

53AYAuthority to acquire land

(1)The Acquisition of Land Act applies to a distributor-retailer as if—

(a)it were a constructing authority; and

(b)land mentioned in that Act included land held from the State for a lesser interest than freehold, other than a lease under the Land Act; and

(c)the purposes for which land may be taken for the distributor-retailer are purposes relating to the provision of water services and wastewater services to customers in the distributor-retailer’s geographic area.

(2)For a lease under the Land Act, section 218 of that Act applies to a distributor-retailer as if it were a constructing authority.

(3)A regulation may make provision about the acquisition of land by a distributor-retailer.

s 53AY ins 2010 No. 20 s 9

53BAOwnership of water infrastructure that becomes part of land

(1)Water infrastructure owned by a distributor-retailer remains its personal property despite—

(a)it becoming part of any land; or

(b)the sale or other disposal of the land of which it becomes a part.

(2)This section applies despite—

(a)an Act or law of a State; or

(b)a contract, covenant or claim of right under a law of a State.

(3)This section is subject to any retransfer of the water infrastructure under chapter 3A.

s 53BA ins 2010 No. 20 s 9

amd 2012 No. 1 s 22

ch 2B hdg ins 2010 No. 20 s 9

ch 2B pt 1 hdg ins 2010 No. 20 s 9

53BBWhat is water infrastructure and water infrastructure work

(1)

Water infrastructure is infrastructure for a water service or wastewater service.

(2)

Water infrastructure work is the installation, operation, maintenance, repair, alteration or removal of water infrastructure.

s 53BB ins 2010 No. 20 s 9

53BCWhat is a public entity

(1)

A public entity is—

(a)a local government; or

(b)a government company or part of a government company; or

(c)a State instrumentality, agency, authority or entity or a division, branch or other part of a State instrumentality, agency, authority or entity; or

(d)a department or a division, branch or other part of a department; or

(e)a GOC Act entity; or

(f)a government entity prescribed under a regulation under the GOC Act, section 4.

(2)In this section—

GOC Act means the Government Owned Corporations Act 1993.

GOC Act entity means an entity established under a regulation under the GOC Act.

government company means a corporation incorporated under the Corporations Act all the stock or shares in the capital of which is or are beneficially owned by the State.

s 53BC ins 2010 No. 20 s 9

53BDPublicly-controlled places and their public entities

(1)

A publicly-controlled place is—

(a)a State-controlled road; or

(b)a place for which a public entity is responsible that—

(i)the public is entitled to use; or

(ii)is open to members of the public; or

(iii)is used by the public, whether or not on payment of money.

Example for paragraph (b)—

a road

(2)However, publicly-controlled place does not include any of the following under the Transport Infrastructure Act—

(a)busway land;

(b)light rail land;

(c)a railway;

(d)rail corridor land.

Note—

For provisions relevant to water infrastructure work for places mentioned in subsection (2), see the Transport Infrastructure Act, chapter 6 (Road transport infrastructure), chapter 9, part 4, divisions 4 (Public utility plant) and 5 (Use of busway or busway transport infrastructure) and chapter 10, part 4, divisions 3 (Public utility plant) and 4 (Use of light rail or light rail transport infrastructure).

(3)The public entity for a publicly-controlled place is the public entity immediately and primarily responsible for the place.

s 53BD ins 2010 No. 20 s 9

53BEWhat is a road and a State-controlled road

(1)

A road is any of the following other than to the extent it is, or includes, a public thoroughfare easement—

(a)an area of land dedicated to public use as a road;

(b)an area that is open to or used by the public and is developed for, or has as 1 of its main uses, the driving or riding of motor vehicles;

(c)a bridge, culvert, ferry, ford, tunnel or viaduct;

(d)a pedestrian or bicycle path;

(e)a part of an area, bridge, culvert, ferry, ford, tunnel, viaduct or path mentioned in paragraphs (a) to (d).

(2)

A State-controlled road is a road or land, or part of a road or land, declared under the Transport Infrastructure Act, section 24 to be a State-controlled road.

s 53BE ins 2010 No. 20 s 9

53BFWhat are road works

(1)

Road works are—

(a)works done for—

(i)constructing roads or things associated with roads; or

(ii)maintaining roads or things associated with roads (other than public utility plant); or

(iii)facilitating the operation of infrastructure relating to roads; or

(b)works declared under a regulation under the Transport Infrastructure Act to be road works.

(2)In this section—

plant includes any of the following—

(a)a conduit or cable;

(b)an electrical installation under the Electricity Act 1994;

(c)an overhead conveyor.

public utility plant means plant permitted under an Act or a Commonwealth Act to be on a road.

works includes activities.

s 53BF ins 2010 No. 20 s 9

53BGMeaning of location on a road

The location of water infrastructure on a road includes the line, level and boundary of the water infrastructure in or on the road.

s 53BG ins 2010 No. 20 s 9

ch 2B pt 2 hdg ins 2010 No. 20 s 9

ch 2B pt 2 div 1 hdg ins 2010 No. 20 s 9

53BHRight to carry out work on publicly-controlled place

Subject to sections 53BI and 53BR and division 2, a distributor-retailer may carry out water infrastructure work on a publicly-controlled place if the carrying out of the work is relevant to the performance of its geographic area functions.

s 53BH ins 2010 No. 20 s 9

53BIRequirements for carrying out work

(1)A distributor-retailer may carry out water infrastructure work on a publicly-controlled place only if—

(a)the public entity has given its written approval for the carrying out of the work (a public entity approval); or

Note—

See also section 108 (Public entity approvals taken to be given for existing water infrastructure work).

(b)the public entity and the distributor-retailer have entered into a written consent arrangement for the carrying out of the work (a consent arrangement); or

(c)the carrying out of the work is necessary because of an emergency.

(2)If the work is carried out because of an emergency, the distributor-retailer must, as soon as practicable, give the entity notice of the work.

(3)Without limiting the matters of a consent arrangement, the arrangement may—

(a)apply to 1 or several locations; and

(b)be subject to the SEQ design and construction code; and

(c)if the arrangement is for water infrastructure within an agreed location on a road—provide for the distributor-retailer to give a water approval for the infrastructure without a public entity approval; and

(d)provide for a person identified in the consent arrangement to carry out water infrastructure work on a publicly controlled place; and

(e)be subject to reasonable conditions.

s 53BI ins 2010 No. 20 s 9

amd 2014 No. 16 s 6

53BJObtaining public entity’s approval or entering consent arrangement

(1)The distributor-retailer may, in writing, apply to the public entity for a public entity approval or consent arrangement for water infrastructure work.

(2)The application must—

(a)describe the work and how it is proposed to be carried out; and

(b)give particulars of the location of the proposed work; and

(c)be supported by other relevant information, reasonably required by the entity, to enable it to consider the application.

(3)The entity must, within 20 business days after receiving the information mentioned in subsection (2)(c)—

(a)decide to grant or refuse the approval; or

(b)enter into the consent arrangement.

(4)For subsection (3)(a), the entity must not unreasonably refuse to grant the approval.

s 53BJ ins 2010 No. 20 s 9

amd 2014 No. 16 s 7

53BKConditions of approval or arrangement

(1)The public entity may impose conditions on the approval or consent arrangement it considers are reasonable.

Example of a possible condition—

a condition that, to minimise interference with public access to the place, the work may be carried out only on stated days or at stated times

(2)However, a condition about an alignment for water infrastructure on, or proposed to be built on, a road must ensure the alignment is—

(a)located to ensure reasonable protection for the infrastructure; and

(b)if practicable, on the footpath or verge of the road.

s 53BK ins 2010 No. 20 s 9

amd 2014 No. 16 s 8

ch 2B pt 2 div 2 hdg ins 2010 No. 20 s 9

53BLApplication of div 2

This division applies if a distributor-retailer is carrying out water infrastructure work on a publicly-controlled place.

s 53BL ins 2010 No. 20 s 9

53BMGuarding

(1)This section applies if the distributor-retailer has opened or broken up (the interference) the place, or any part of the place.

(2)The distributor-retailer must, at all times while the interference continues, ensure—

(a)the interference is barricaded and guarded; and

(b)signs and lights sufficient to warn and guide the public are set up and maintained against or near the interference.

(3)If required by the public entity, the distributor-retailer must also set up and maintain against or near the interference additional warning or protection devices to safeguard the public while the interference continues.

(4)The requirement may be made—

(a)before or during the carrying out of the work; and

(b)as well as any condition imposed under section 53BK.

s 53BM ins 2010 No. 20 s 9

53BNWarning signs on roads

If the work is carried out on a road, lights and signs set up or maintained to safeguard the public must be the appropriate official traffic signs under the Transport Operations (Road Use Management) Act 1995.

s 53BN ins 2010 No. 20 s 9

53BOGeneral obligations in carrying out work

(1)The distributor-retailer must—

(a)complete the work as soon as practicable; and

(b)restore, as nearly as practicable, the relevant part of the place to the condition it was in before the work started; and

(c)remove any rubbish or surplus earth caused by the work; and

(d)comply with—

(i)the conditions of any relevant public entity approval or consent arrangement; and

(ii)any relevant provisions of the Water Supply Act and any other relevant law.

(2)If, in carrying out the work, the distributor-retailer causes damage to the place, the distributor-retailer must fix the damage as soon as practicable.

s 53BO ins 2010 No. 20 s 9

amd 2014 No. 16 s 9

53BPMaintenance

(1)This section applies if the distributor-retailer has opened or broken up the place or any part of it and has, under section 53BO, restored the place or part.

(2)The distributor-retailer must carry out maintenance to ensure the place or part of it is kept in good repair until the later of the following periods to end—

(a)the period that ends 3 months after the restoration was finished;

(b)if, because of the carrying out of the work or the restoration, the ground at the place or part subsides within the 3 months, the period that ends on the earlier of the following—

(i)the day the subsidence ends;

(ii)the first anniversary of the day the restoration was finished.

(3)The maintenance must be carried out in the way agreed between the public entity and the distributor-retailer.

s 53BP ins 2010 No. 20 s 9

ch 2B pt 2 div 3 hdg ins 2010 No. 20 s 9

53BQPower to give work direction

(1)This section applies if—

(a)a distributor-retailer is carrying out, or has carried out, water infrastructure work on a publicly-controlled place; and

(b)the public entity reasonably considers work should be, or should have been, carried out to ensure compliance with a condition imposed under section 53BK or an obligation under division 2.

(2)The entity may give the distributor-retailer a notice (a work direction) directing the distributor-retailer to carry out stated work to comply with the condition or obligation within a stated reasonable period.

(3)The work direction must—

(a)identify the condition or obligation; and

(b)include, or be accompanied by, an information notice about the decision to give the direction.

s 53BQ ins 2010 No. 20 s 9

53BRCompliance with work direction

(1)A distributor-retailer to whom a work direction has been given must comply with the direction to the reasonable satisfaction of the public entity that gave the direction.

(2)If the distributor-retailer does not comply with subsection (1), the entity may carry out the relevant work.

(3)In carrying out the work, the entity must comply with any relevant provisions of the Water Supply Act and any other relevant law.

s 53BR ins 2010 No. 20 s 9

53BSCosts of carrying out directed work

(1)A distributor-retailer to whom a work direction has been given must bear the costs of complying with the direction.

(2)If, under section 53BR(2), the public entity has carried out the relevant work, it may recover from the distributor-retailer as a debt the amount of its reasonable costs of carrying out the work.

s 53BS ins 2010 No. 20 s 9

ch 2B pt 3 hdg ins 2010 No. 20 s 9

53BTApplication of pt 3

This part applies if a public entity for a publicly-controlled place proposes to do work (public entity work) that is likely to affect the safety, location or operation of a distributor-retailer’s water infrastructure.

s 53BT ins 2010 No. 20 s 9

53BURequirement to consult if water infrastructure affected

(1)The public entity must give the distributor-retailer a notice stating—

(a)details of the proposed public entity work; and

(b)that the distributor-retailer may, within a stated period, make written submissions to the entity about the proposal.

(2)The stated period must not end before 30 business days after the notice is given.

(3)Before deciding to make the change, the entity must consider any written submission made by the distributor-retailer within the stated period.

Note—

See also section 53CF (Obligation to give public entity information).

s 53BU ins 2010 No. 20 s 9

53BVPower to require consequential work

(1)This section applies if—

(a)the public entity has complied with section 53BU; and

(b)to carry out the public entity work, it is reasonably necessary for any of the following work to be done (consequential work)—

(i)changing the position of the water infrastructure;

(ii)carrying out other work relating to the water infrastructure.

(2)The entity may, by notice (a consequential work requirement), require the distributor-retailer to do the consequential work within a stated reasonable period.

s 53BV ins 2010 No. 20 s 9

53BWCompliance with consequential work requirement

(1)A distributor-retailer of whom a consequential work requirement has been made must comply with the requirement to the reasonable satisfaction of the public entity that made the requirement.

(2)If the distributor-retailer does not comply with subsection (1), the entity may carry out the relevant consequential work.

(3)In carrying out the work, the entity must comply with any relevant provisions of the Water Supply Act and any relevant law.

s 53BW ins 2010 No. 20 s 9

53BXCosts of carrying out required consequential work

(1)A public entity must bear the costs of complying with any consequential work requirement it makes.

(2)If the relevant distributor-retailer has complied with section 53BW(1), the distributor-retailer may recover from the entity as a debt the amount of the distributor-retailer’s reasonable costs of carrying out the work.

s 53BX ins 2010 No. 20 s 9

ch 2B pt 4 hdg ins 2010 No. 20 s 9

53BYApplication of pt 4

This part applies if a distributor-retailer’s water infrastructure on a publicly-controlled place interferes with the use of the place by the public entity or the public.

s 53BY ins 2010 No. 20 s 9

53BZRemedial action by public entity in emergency

If, because of an emergency, it is necessary to take action (remedial action) to ensure the water infrastructure ceases to interfere with the use of the place, the public entity may take the remedial action.

s 53BZ ins 2010 No. 20 s 9

53CAPower to require remedial action

The public entity may, by notice (a remedial action requirement), require the distributor-retailer to take remedial action within a stated reasonable period.

s 53CA ins 2010 No. 20 s 9

53CBCompliance with remedial action requirement

(1)If the distributor-retailer is given a remedial action requirement, the distributor-retailer must comply with the requirement to the reasonable satisfaction of the public entity.

(2)If the distributor-retailer does not comply with subsection (1), the entity may take the relevant remedial action.

(3)In taking the remedial action, the entity must comply with any relevant provisions of the Water Supply Act and any other relevant law.

s 53CB ins 2010 No. 20 s 9

53CCCosts of taking required remedial action

(1)The distributor-retailer must bear the costs of complying with a remedial action requirement.

(2)If, under section 53CB(2), the public entity takes the remedial action, it may recover from the distributor-retailer as a debt the amount of the entity’s reasonable costs of taking the action.

s 53CC ins 2010 No. 20 s 9

ch 2B pt 5 hdg ins 2010 No. 20 s 9

53CDApplication of pt 5

This part applies for particular water infrastructure that a distributor-retailer has or constructs, augments, alters or maintains on a road.

s 53CD ins 2010 No. 20 s 9

53CERecord obligation

The distributor-retailer must prepare records that adequately define the location of the water infrastructure on the road.

s 53CE ins 2010 No. 20 s 9

53CFObligation to give public entity information

(1)If the public entity for the road asks, the distributor-retailer must, within a reasonable period, give the public entity information that adequately defines the location of the water infrastructure on a stated part of the road.

(2)A request under subsection (1) is an information request.

s 53CF ins 2010 No. 20 s 9

53CGExclusion of liability for particular damage by public entity to water infrastructure

(1)This section applies if—

(a)the public entity for the road causes damage to the water infrastructure and has not agreed to be liable for the damage; and

(b)before the damage happened the public entity made an information request to the distributor-retailer.

(2)The public entity is not liable for the damage if—

(a)either—

(i)the request was not complied with within a reasonable period before the damage happened; or

(ii)information given in response to the request did not adequately define the location of the water infrastructure; and

(b)the damage would not have happened had the request been complied with or had the information given adequately defined the location.

s 53CG ins 2010 No. 20 s 9

53CHLiability for additional public entity road work expenses

(1)This section applies if—

(a)the public entity for the road carries out road works in or on the road; and

(b)it made an information request of the distributor-retailer before carrying out the road works.

Note—

See however section 109 (Deferral of distributor-retailer’s liability for additional public entity road work expenses).

(2)The distributor-retailer is liable to pay the public entity any additional expense the public entity incurred in carrying out the road works because of the location of the water infrastructure if—

(a)either—

(i)the request was not complied with within a reasonable period before the road works were carried out; or

(ii)information given in response to the request did not adequately define the location; and

(b)the additional expense would not have been incurred had the request been complied with or had the information given adequately defined the location.

(3)However, subsection (2) does not apply if—

(a)the road works were not provided for in a plan by the public entity given to the distributor-retailer within a reasonable period before the road works were carried out; and

(b)the public entity gave a public entity approval for all water infrastructure work for the water infrastructure; and

(c)the distributor-retailer has not contravened any condition of the approval.

Note—

See also section 108 (Public entity approvals taken to be given for existing water infrastructure work).

s 53CH ins 2010 No. 20 s 9

53CIDistributor-retailer and public entity may share costs

(1)The distributor-retailer may arrange with the public entity for the road to share the cost of all or any of—

(a)acquisition of land associated with the water infrastructure; or

(b)construction, augmentation, alteration or maintenance of the water infrastructure; or

(c)construction of road works affected by the water infrastructure.

(2)The arrangement may include all necessary preliminary costs associated with the acquisition, construction, augmentation, alteration or road maintenance.

s 53CI ins 2010 No. 20 s 9

ch 2B pt 6 hdg ins 2010 No. 20 s 9

53CJCompensation

(1)This section applies if a person (a claimant) suffers a cost, damage or loss because of the exercise, or purported exercise, of a power under this part by a distributor-retailer.

(2)However, this section does not apply for a public entity for a publicly-controlled place if the power relates to the place for which it is the public entity.

(3)Compensation for the cost, damage or loss is payable by the distributor-retailer to the claimant.

(4)The compensation may be claimed and ordered in a proceeding brought in a court with jurisdiction for the recovery of the amount of compensation claimed.

s 53CJ ins 2010 No. 20 s 9

ch 2C hdg ins 2010 No. 20 s 9

amd 2011 No. 31 s 353

sub 2014 No. 16 s 101 sch 1

ch 2C pt 1 hdg ins 2010 No. 20 s 9

amd 2011 No. 31 s 354; 2014 No. 16 s 101 sch 1

53CKAppointment and other provisions

(1)This section applies if, under the Water Supply Act, a distributor-retailer, as a service provider, appoints a person as an authorised person.

(2)The distributor-retailer may also appoint the person as a discharge officer or water connection officer under this Act if the distributor-retailer is satisfied the person has the necessary expertise or experience.

(3)However, if a regulation prescribes qualifications or other requirements for the appointment of discharge officers, the person may be appointed as a discharge officer only if the person complies with the requirements.

(4)The Water Supply Act, sections 45 to 48 apply for the appointment as a discharge officer or water connection officer and the officer’s office as if—

(a)a reference in the sections to an authorised person were a reference to a discharge officer or water connection officer; and

(b)the reference in section 48 to exercising a power under the Water Supply Act included a reference to exercising a power under this part; and

(c)with other necessary changes.

(5)The service provider may issue the appointee 1 identity card for all appointments.

s 53CK ins 2010 No. 20 s 9

amd 2011 No. 31 s 355; 2014 No. 16 s 10

53CLFunctions of a discharge officer

A discharge officer’s functions are to help the distributor-retailer to do the following as a sewerage service provider—

(a)consider and decide applications for a trade waste approval or seepage water approval;

(b)monitor and enforce compliance with the following provisions of the Water Supply Act—

(i)chapter 2, part 6;

(ii)chapter 2, part 7, to the extent that part relates to trade waste and seepage water, and the distributor-retailer’s infrastructure as a sewerage service provider;

(c)take discharge compliance action.

s 53CL ins 2010 No. 20 s 9

amd 2011 No. 31 s 356; 2014 No. 16 s 101 sch 1

53CLA Functions of a water connection officer

A water connection officer’s functions are to help the distributor-retailer to do the following—

(a)monitor and enforce compliance with the Water Supply Act, chapter 2, part 7, other than to the extent that part relates to trade waste and seepage water;

(b)monitor and enforce compliance with chapter 4C, part 5;

(c)take water connection compliance action.

s 53CLA ins 2014 No. 16 s 11

ch 2C pt 2 hdg ins 2010 No. 20 s 9

amd 2011 No. 31 s 357

ch 2C pt 2 div 1 hdg ins 2010 No. 20 s 9

53CMGeneral powers of entry

(1)A discharge officer may enter a place to perform the officer’s functions if—

(a)it is a place of business the subject of a trade waste approval or seepage water approval and the place is—

(i)open for carrying on the business; or

(ii)otherwise open for entry; or

(b)an occupier of the place consents to the entry; or

(c)it is a public place and the entry is made when it is open to the public; or

(d)the entry is authorised by a warrant.

(2)For section (1)(a), a place of business does not include a part of the place where a person resides.

(3)To remove any doubt, it is declared that this section does not limit or otherwise affect a discharge officer’s powers as an authorised person.

(4)In this section—

seepage water approval includes a seepage water approval the subject of suspension under the Water Supply Act.

trade waste approval includes a trade waste approval the subject of suspension under the Water Supply Act.

s 53CM ins 2010 No. 20 s 9

amd 2011 No. 31 s 358

ch 2C pt 2 div 2 hdg ins 2010 No. 20 s 9

amd 2011 No. 31 s 359

53CNPower to enter

(1)This section applies if a distributor-retailer may take discharge compliance action.

Note—

See section 53DM (Action distributor-retailer may take if discharge compliance notice contravened).

(2)A discharge officer may enter the place the subject of the relevant trade waste approval or seepage water approval at any reasonable time to take the action for the distributor-retailer.

(3)However, the discharge officer can not under subsection (2) enter any part of the place where a person resides.

s 53CN ins 2010 No. 20 s 9

amd 2011 No. 31 s 360

ch 2C pt 2 div 3 hdg ins 2010 No. 20 s 9

53COPower to enter place subject to approved inspection program

(1)A discharge officer may, under an approved inspection program, enter a place at any reasonable time of the day or night without the consent of the occupier of the place.

(2)However, a discharge officer can not under an approved inspection program enter any part of a place where a person resides.

(3)To remove any doubt, it is declared that—

(a)the power under subsection (1) does not limit or otherwise affect any other power under this chapter; and

(b)a discharge officer may inspect places other than as provided for under the program.

s 53CO ins 2010 No. 20 s 9

amd 2011 No. 31 s 361

53CPApproving an inspection program

(1)A distributor-retailer may, by a board resolution, approve a program under which a discharge officer may enter and inspect places in the distributor-retailer’s geographic area to perform a discharge officer’s functions.

(2)An approved inspection program may—

(a)allow a discharge officer to enter and inspect all places, or all places of a particular type, in the distributor-retailer’s geographic area (a systematic inspection program); or

(b)allow a discharge officer to enter and inspect those places in the distributor-retailer’s geographic area that have been selected in accordance with objective criteria stated in the resolution (a selective inspection program).

(3)The resolution must state the following for the program—

(a)its purpose;

(b)when it starts;

(c)for a systematic inspection program that allows a type of place to be entered and inspected, a description of the type of place;

(d)for a selective inspection program, objective criteria for selecting the places to be entered and inspected;

(e)the period (the program period) over which it is to be carried out.

(4)The program period can not be more than 6 months or another period prescribed under a regulation.

(5)The distributor-retailer must give public notice of the approval of an inspection program in the way required under section 53CQ.

(6)The public notice must be given for a period at least 14 days, but no more than 28 days, before the program starts.

s 53CP ins 2010 No. 20 s 9

amd 2011 No. 31 s 362

53CQContent of public notice and access requirements

(1)The notice required under section 53CP(5) must be published—

(a)in a newspaper circulating in all of the distributor-retailer’s geographic area; and

(b)on the distributor-retailer’s website.

(2)The notice must state the following—

(a)the distributor-retailer’s name;

(b)the purpose and scope of the approved inspection program, in general terms;

(c)when the program starts;

(d)the program period;

(e)that the public may inspect a copy of the resolution that approved the program at the distributor-retailer’s public office until the end of the program;

(f)that a copy of the resolution that approved the program may be purchased at the distributor-retailer’s public office until the end of the program;

(g)the price (the stated price) of a copy of the resolution.

(3)The stated price can not be more than the cost to the distributor-retailer of making the copy available for purchase.

(4)From when the notice is published until the program ends—

(a)the public may inspect a copy of the resolution at the distributor-retailer’s public office; and

(b)copies of the resolution must be available for purchase at the distributor-retailer’s public office at the stated price.

s 53CQ ins 2010 No. 20 s 9

ch 2C pt 2 div 4 hdg ins 2010 No. 20 s 9

53CRApplication for warrant

(1)A discharge officer may apply to a magistrate for a warrant for a place.

(2)The discharge officer must prepare a written application that states the grounds on which the warrant is sought.

(3)The written application must be sworn.

(4)The magistrate may refuse to consider the application until the discharge officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the written application to be given by statutory declaration.

s 53CR ins 2010 No. 20 s 9

amd 2011 No. 31 s 363

53CSIssue of warrant

(1)The magistrate may issue the warrant for the place only if the magistrate is satisfied there are reasonable grounds for suspecting—

(a)there is a particular thing or activity (the evidence) that may provide evidence of a discharge offence; and

(b)the evidence is at the place, or, within the next 7 days, may be at the place.

(2)The warrant must state—

(a)the place to which the warrant applies; and

(b)that a stated discharge officer may, with necessary and reasonable help and force—

(i)enter the place and any other place necessary for the entry; and

(ii)exercise the discharge officer’s powers under this chapter; and

(c)particulars of the offence that the magistrate considers appropriate in the circumstances; and

(d)the name of the person suspected of having committed the offence, unless the name is unknown or the magistrate considers it inappropriate to state the name; and

(e)the evidence that may be seized under the warrant; and

(f)the hours of the day or night when the place may be entered; and

(g)the extent of re-entry permitted; and

(h)the date, within 14 days after the warrant’s issue, the warrant ends.

(3)A provision of this part applying to entry authorised under a warrant is taken also to apply to any re-entry authorised under the warrant.

s 53CS ins 2010 No. 20 s 9

amd 2011 No. 31 s 364

53CTApplication by electronic communication and duplicate warrant

(1)An application under section 53CR may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the discharge officer reasonably considers it necessary because of—

(a)urgent circumstances; or

(b)other special circumstances, including, for example, the discharge officer’s remote location.

(2)The application—

(a)may not be made before the discharge officer prepares the written application under section 53CR(2); but

(b)may be made before the written application is sworn.

(3)The magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied—

(a)it was necessary to make the application under subsection (1); and

(b)the way the application was made under subsection (1) was appropriate.

(4)After the magistrate issues the original warrant—

(a)if there is a reasonably practicable way of immediately giving a copy of the warrant to the discharge officer, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the officer; or

(b)otherwise—

(i)the magistrate must tell the discharge officer the date and time the warrant is issued and the other terms of the warrant; and

(ii)the discharge officer must complete a form of warrant, including by writing on it—

(A)the magistrate’s name; and

(B)the date and time the magistrate issued the warrant; and

(C)the other terms of the warrant.

(5)The copy of the warrant mentioned in subsection (4)(a), or the form of warrant completed under subsection (4)(b) (in either case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant.

(6)The discharge officer must, at the first reasonable opportunity, send to the magistrate—

(a)the written application complying with section 53CR(2) and (3); and

(b)if the discharge officer completed a form of warrant under subsection (4)(b)—the completed form of warrant.

(7)The magistrate must keep the original warrant and, on receiving the documents under subsection (6)—

(a)attach the documents to the original warrant; and

(b)give the original warrant and documents to the clerk of the court of the relevant magistrates court.

(8)Despite subsection (5), if—

(a)an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and

(b)the original warrant is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.

(9)This section does not limit section 53CR.

(10)In this section—

relevant magistrates court, in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991.

s 53CT ins 2010 No. 20 s 9

amd 2011 No. 31 s 365

53CUDefect in relation to a warrant

(1)A warrant is not invalidated by a defect in the warrant, or in compliance with section 53CR, 53CS or 53CT, unless the defect affects the substance of the warrant in a material particular.

(2)In this section—

warrant includes a duplicate warrant mentioned in section 53CT(5).

s 53CU ins 2010 No. 20 s 9

ch 2C pt 2 div 5 hdg ins 2010 No. 20 s 9

53CVEntry with consent

(1)This section applies if a discharge officer intends to ask an occupier of a place to consent to the officer or another discharge officer entering the place under section 53CM(1)(b).

(2)For the purpose of asking an occupier of a place for consent to enter, a discharge officer may, without the occupier’s consent or a warrant—

(a)enter land around premises at the place to an extent that is reasonable to contact the occupier; or

(b)enter part of the place the discharge officer reasonably considers members of the public ordinarily are allowed to enter when they wish to contact the occupier.

(3)Before asking for the consent, the discharge officer must tell the occupier—

(a)the purpose of the entry; and

(b)that the occupier is not required to consent.

(4)If the consent is given, the discharge officer may ask the occupier to sign an acknowledgement of the consent.

(5)The acknowledgement must state—

(a)the occupier has been told—

(i)the purpose of the entry; and

(ii)that the occupier is not required to consent; and

(b)the purpose of the entry; and

(c)the occupier gives the discharge officer consent to enter the place and exercise powers under this part; and

(d)the time and date the consent was given.

(6)If the occupier signs the acknowledgement, the discharge officer must immediately give a copy to the occupier.

(7)If—

(a)an issue arises in a proceeding about whether the occupier consented to the entry; and

(b)an acknowledgement complying with subsection (5) for the entry is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented.

s 53CV ins 2010 No. 20 s 9

amd 2011 No. 31 s 366

53CWEntry under warrant

(1)This section applies if a discharge officer named in a warrant issued under this part for a place is intending to enter the place under the warrant.

(2)Before entering the place, the discharge officer must do or make a reasonable attempt to do the following things—

(a)identify himself or herself to a person present at the place who is an occupier of the place by producing a copy of the discharge officer’s identity card or other document evidencing the officer’s appointment;

(b)give the person a copy of the warrant;

(c)tell the person the discharge officer is permitted by the warrant to enter the place;

(d)give the person an opportunity to allow the discharge officer immediate entry to the place without using force.

(3)However, the discharge officer need not comply with subsection (2) if the officer believes on reasonable grounds that immediate entry to the place is required to ensure the effective execution of the warrant is not frustrated.

(4)In this section—

warrant includes a duplicate warrant mentioned in section 53CT(5).

s 53CW ins 2010 No. 20 s 9

amd 2011 No. 31 s 367

53CXOther entries

(1)This section applies if a discharge officer proposes to enter a place other than with consent of its occupier or by a warrant.

(2)Before entering the place, the discharge officer must do or make a reasonable attempt to do the following things—

(a)comply with the Water Supply Act, section 48, as applied under section 53CK(4), for any occupier of the place who is present at the place;

Editor’s note—

Water Supply Act, section 48 (Producing and displaying identity card)

(b)tell the occupier the purpose of the entry;

(c)tell the occupier the officer is permitted under this Act to enter the place without the occupier’s consent.

(3)Also, if the entry is under an approved inspection program, the discharge officer must give the occupier details of the program.

s 53CX ins 2010 No. 20 s 9

amd 2011 No. 31 s 368

ch 2C pt 2 div 6 hdg ins 2010 No. 20 s 9

53CYApplication of div 6

(1)This division applies to a discharge officer who enters a place under this part.

(2)However, if a discharge officer enters a place to get the occupier’s consent to enter the place, this division applies to the officer only if the consent is given or the entry is otherwise authorised.

s 53CY ins 2010 No. 20 s 9

amd 2011 No. 31 s 369

53CZGeneral powers after entry

(1)The discharge officer may do all or any of the following—

(a)search any part of the place;

(b)inspect, measure, test, photograph or film any part of the place or anything at the place;

(c)take a thing, or a sample of or from a thing, at the place for analysis or testing;

(d)copy a document at the place or take the document to another place to copy it;

(e)take into or onto the place any person, equipment and materials the discharge officer reasonably requires for the exercise of a power under this part;

(f)require a person at the place to give the discharge officer reasonable help to exercise the officer’s powers under paragraphs (a) to (e);

(g)require a person at the place to give the discharge officer information to help the officer find out whether this Act and the Water Supply Act is being or has been complied with.

(2)When making a requirement under subsection (1)(f), the discharge officer must warn the person it is an offence to fail to comply with the requirement unless the person has a reasonable excuse.

(3)If a discharge officer takes a document from a place to copy it, the document must be copied as soon as practicable and returned to the place.

s 53CZ ins 2010 No. 20 s 9

amd 2011 No. 31 s 370

53DAFailure to help discharge officer

(1)A person required to give reasonable help under section 53CZ(1)(f) must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—200 penalty units.

(2)If the person is an individual, it is a reasonable excuse for the person to fail to comply with the requirement that complying with the requirement might tend to incriminate the person.

s 53DA ins 2010 No. 20 s 9

amd 2011 No. 31 s 371

ch 2C pt 2 div 7 hdg ins 2010 No. 20 s 9

sub 2010 No. 53 s 148

53DBApplication of div 7

This division applies if a discharge officer—

(a)finds a person committing a discharge offence; or

(b)finds a person in circumstances that lead the officer to reasonably suspect a person has just committed a discharge offence; or

(c)has information that leads the officer to reasonably suspect a person has just committed a discharge offence.

s 53DB ins 2010 No. 20 s 9

sub 2010 No. 53 s 148

amd 2011 No. 31 s 372

53DCPower to require name and residential address

(1)The discharge officer may require the person to state the person’s name and residential address.

(2)When making the requirement, the discharge officer must give the person an offence warning.

(3)The person must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty for subsection (3)—35 penalty units.

s 53DC ins 2010 No. 20 s 9

sub 2010 No. 53 s 148

amd 2011 No. 31 s 373

53DDPower to require evidence of name or residential address

(1)The discharge officer may also require the person to give evidence of the correctness of the stated name or residential address if, in the circumstances, it would be reasonable to expect the person to—

(a)be in possession of evidence of the correctness of the stated name or residential address; or

(b)otherwise be able to give the evidence.

(2)The person must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty for subsection (2)—35 penalty units.

s 53DD ins 2010 No. 20 s 9

sub 2010 No. 53 s 148

amd 2011 No. 31 s 374

53DEException if discharge offence not proved

The person does not commit an offence under this division if—

(a)the requirement was made because the discharge officer suspected the person has committed a discharge offence; and

(b)the person is not proved to have committed the offence.

s 53DE ins 2010 No. 20 s 9

sub 2010 No. 53 s 148

amd 2011 No. 31 s 375

ch 2C pt 2 div 8 hdg ins 2010 No. 20 s 9

53DFDuty to avoid damage

In performing a function or exercising a power under this part, a discharge officer must take all reasonable steps to ensure the officer causes as little inconvenience, and does as little damage, as is practicable.

s 53DF ins 2010 No. 20 s 9

amd 2011 No. 31 s 376

53DGNotice of damage

(1)This section applies if—

(a)a discharge officer damages property when exercising or purporting to exercise a power under this part; or

(b)a person (the other person) acting under the direction or authority of a discharge officer damages property.

(2)The discharge officer must immediately give notice of particulars of the damage to a person who appears to the officer to be an owner of the property.

(3)If the discharge officer believes the damage was caused by a latent defect in the property or circumstances beyond the officer’s or other person’s control, the officer may state the belief in the notice.

(4)If, for any reason, it is impracticable to comply with subsection (2), the discharge officer must leave the notice where the damage happened in a conspicuous position and in a reasonably secure way.

(5)This section does not apply to damage the discharge officer reasonably believes is trivial.

(6)In this section—

owner, of property, includes a person in possession or control of it.

s 53DG ins 2010 No. 20 s 9

amd 2011 No. 31 s 377

53DHContent of notice of damage

(1)A notice of damage under section 53DG must state—

(a)particulars of the damage; and

(b)that the person who suffered the damage may claim compensation under section 53DI.

(2)If the discharge officer believes the damage was caused by a latent defect in the thing or circumstances beyond the officer’s or other person’s control, the officer may state the belief in the notice.

s 53DH ins 2010 No. 20 s 9

amd 2011 No. 31 s 378

53DICompensation from distributor-retailer to owner or occupier

(1)If a person incurs loss or expense caused directly by the exercise or purported exercise of a power under this part, the person may claim compensation from the distributor-retailer.

(2)Compensation may be claimed and ordered to be paid in a proceeding brought in a court with jurisdiction for the recovery of the amount of compensation claimed.

(3)A court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.

s 53DI ins 2010 No. 20 s 9

ch 2C pt 3 hdg ins 2010 No. 20 s 9

amd 2011 No. 31 s 379

53DJWho may give a discharge compliance notice

(1)This section applies if a discharge officer reasonably believes—

(a)the approval holder—

(i)is contravening the holder’s trade waste approval or seepage water approval; or

(ii)has contravened the holder’s trade waste approval or seepage water approval in circumstances that make it likely the contravention will continue or be repeated; and

(b)a matter relating to the contravention is reasonably capable of being rectified; and

(c)it is appropriate to give the approval holder an opportunity to rectify the matter.

(2)The discharge officer may give the approval holder a notice (a discharge compliance notice) requiring the holder to remedy the contravention.

s 53DJ ins 2010 No. 20 s 9

amd 2011 No. 31 s 380

53DKRequirements for discharge compliance notice

(1)A discharge compliance notice must state the following—

(a)that the discharge officer reasonably believes the approval holder—

(i)is contravening a provision of the holder’s trade waste approval or seepage water approval; or

(ii)has contravened the holder’s trade waste approval or seepage water approval in circumstances that make it likely the contravention will continue or be repeated;

(b)the provision the discharge officer believes is being, or has been, contravened;

(c)briefly, how it is believed the provision is being, or has been, contravened;

(d)that the approval holder must remedy the contravention within a stated reasonable period;

(e)that it is an offence to fail to comply with the notice unless the approval holder has a reasonable excuse;

(f)that, within 30 business days after the notice is given, the person may apply for an internal review of the decision to give the notice;

(g)how the person may apply for the review.

(2)A discharge compliance notice may also state—

(a)the reasonable steps that the discharge officer is satisfied are necessary to remedy the contravention, or avoid further contravention, of the provision; or

(b)performance outcomes to show that the contravention has been remedied or the further contravention will be avoided.

(3)If a discharge compliance notice requires the approval holder to do an act involving the carrying out of work, it also must give details of the work involved.

(4)If a discharge compliance notice requires the approval holder to refrain from doing an act, it also must state—

(a)a period for which the requirement applies; or

(b)that the requirement applies until further notice.

(5)A discharge compliance notice may be accompanied by, or included in, any of the following under the Water Supply Act given for the approval holder’s trade waste approval or seepage water approval—

(a)a show cause notice mentioned in section 183(1);

(b)an information notice mentioned in section 184(3).

s 53DK ins 2010 No. 20 s 9

amd 2011 No. 31 s 381

53DLOffence to contravene discharge compliance notice

(1)An approval holder to whom a discharge compliance notice is given must comply with the notice unless the holder has a reasonable excuse.

Maximum penalty—100 penalty units.

Note—

See also section 100F (Application of Water Supply Act enforcement provisions for particular offences).

(2)A proceeding for an offence against subsection (1) does not prevent or limit the cancellation, suspension or amendment of the approval holder’s trade waste approval or seepage water approval under the Water Supply Act, sections 183 to 185.

s 53DL ins 2010 No. 20 s 9

amd 2011 No. 31 s 382

53DMAction distributor-retailer may take if discharge compliance notice contravened

(1)This section applies if an approval holder contravenes a discharge compliance notice by not doing something.

(2)The distributor-retailer may do the thing or take any other action (discharge compliance action) it reasonably believes is necessary to prevent or minimise the impact of the contravention.

s 53DM ins 2010 No. 20 s 9

amd 2011 No. 31 s 383

53DNRecovery of costs of discharge compliance action

(1)If a distributor-retailer incurs expense because of the taking of discharge compliance action, it may give the approval holder a notice stating the amount of the expense incurred.

(2)Any reasonable expenses incurred by the distributor-retailer in taking the discharge compliance action may be recovered by the distributor-retailer from the approval holder as a debt.

(3)In this section—

expenses, incurred by the distributor-retailer, includes the cost of services that the distributor-retailer provides for itself.

s 53DN ins 2010 No. 20 s 9

amd 2011 No. 31 s 384

ch 2C pt 4 hdg ins 2014 No. 16 s 12

ch 2C pt 4 div 1 hdg ins 2014 No. 16 s 12

53DNA General powers of entry

(1)A water connection officer may enter a place to perform the officer’s functions if—

(a)it is a place of business the subject of a water approval and the place is—

(i)open for carrying on the business; or

(ii)otherwise open for entry; or

(b)an occupier of the place consents to the entry; or

(c)it is a public place and the entry is made when it is open to the public; or

(d)the entry is authorised by a warrant.

(2)For subsection (1)(a) and (b), a place does not include a building or structure used for residential purposes.

(3)To remove any doubt, it is declared that this section does not limit or otherwise affect a water connection officer’s powers as an authorised person.

s 53DNA ins 2014 No. 16 s 12

ch 2C pt 4 div 2 hdg ins 2014 No. 16 s 12

53DNB Application of ch 2C, pt 2, divs 2 to 8

(1)Chapter 2C, part 2, divisions 2 to 8 apply, with any necessary changes, as if a reference in the divisions to—

(a)a discharge officer were a reference to a water connection officer; and

(b)a discharge compliance action were a reference to a water connection compliance action; and

(c)a discharge offence were a reference to a water connection offence; and

(d)a trade waste approval or seepage water approval were a reference to a water approval.

(2)For the application of section 53CV(1), the reference to section 53CM(1)(b) is taken to be a reference to section 53DNA(1)(b).

s 53DNB ins 2014 No. 16 s 12

ch 2C pt 5 hdg ins 2014 No. 16 s 12

ch 2C pt 5 div 1 hdg ins 2014 No. 16 s 12

53DNC When show cause notice must be given before compliance notice

(1)A distributor-retailer or water connection officer must, before giving a person a compliance notice for a matter, give the person a show cause notice about the matter.

(2)However, a show cause notice need not be given if the distributor-retailer or water connection officer reasonably considers—

(a)urgent action is required to protect public health or public safety; or

(b)urgent action is required to stop damage, or further damage, to the distributor-retailer’s water infrastructure; or

(c)it is otherwise not appropriate in the circumstances to give a show cause notice for the matter.

Example—

The distributor-retailer or officer considers giving a show cause notice may adversely affect the effectiveness of the proposed compliance notice.

s 53DNC ins 2014 No. 16 s 12

ch 2C pt 5 div 2 hdg ins 2014 No. 16 s 12

53DND Who may give a water connection compliance notice

(1)This section applies if a distributor-retailer or a water connection officer reasonably believes—

(a)a person—

(i)is contravening a provision of chapter 4C, part 5; or

(ii)has contravened a provision of chapter 4C, part 5, in circumstances that make it likely the contravention will continue or be repeated; and

(b)a matter relating to the contravention is reasonably capable of being rectified; and

(c)it is appropriate to give the person an opportunity to rectify the matter.

(2)The distributor-retailer or water connection officer may decide to give the person a notice (a water connection compliance notice) requiring the holder to remedy the contravention.

(3)Subsection (4) applies if the giving of the water connection compliance notice is for a matter for which a show cause notice has been given by the distributor-retailer or water connection officer.

(4)The water connection compliance notice may be given only if, after considering any properly made submission by the person about the show cause notice, the distributor-retailer or water connection officer still believes it is appropriate to give the compliance notice.

s 53DND ins 2014 No. 16 s 12

53DNE Requirements for water connection compliance notice

(1)A water connection compliance notice must state the following—

(a)that the distributor-retailer or water connection officer reasonably believes the person—

(i)is contravening a provision of chapter 4C, part 5; or

(ii)has contravened a provision of chapter 4C, part 5, in circumstances that make it likely the contravention will continue or be repeated;

(b)the provision the distributor-retailer or water connection officer believes is being, or has been, contravened;

(c)briefly, how it is believed the provision is being, or has been, contravened;

(d)that the person must remedy the contravention within a stated reasonable period;

(e)that it is an offence to fail to comply with the notice unless the person has a reasonable excuse;

(f)that, within 20 business days after the notice is given, the person may appeal against the decision to give the notice;

(g)how the person may apply for the appeal.

(2)A water connection compliance notice may also state—

(a)the reasonable steps that the distributor-retailer or water connection officer is satisfied are necessary to remedy the contravention, or avoid further contravention, of the provision; or

(b)performance outcomes to show that the contravention has been remedied or the further contravention will be avoided.

(3)If a water connection compliance notice requires the person to do an act involving the carrying out of work, it also must give details of the work involved.

(4)If a water connection compliance notice requires the person to refrain from doing an act, it also must state—

(a)a period for which the requirement applies; or

(b)that the requirement applies until further notice.

s 53DNE ins 2014 No. 16 s 12

53DNF Offence to contravene water connection compliance notice

A person to whom a water connection compliance notice is given must comply with the notice unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

s 53DNF ins 2014 No. 16 s 12

53DNG Action distributor-retailer may take if water connection compliance notice contravened

(1)This section applies if a person contravenes a water connection compliance notice by not doing something.

(2)The distributor-retailer may do the thing or take any other action (water connection compliance action) it reasonably believes is necessary to prevent or minimise the impact of the contravention.

s 53DNG ins 2014 No. 16 s 12

53DNH Recovery of costs of water connection compliance action

(1)If a distributor-retailer incurs expense because of the taking of a water connection compliance action, it may give the person a notice stating the amount of the expense incurred.

(2)Any reasonable expenses incurred by the distributor-retailer in taking the water connection compliance action may be recovered by the distributor-retailer from the person as a debt.

(3)In this section—

expenses, incurred by the distributor-retailer, includes the cost of services that the distributor-retailer provides for itself.

s 53DNH ins 2014 No. 16 s 12

54Power to make transfer scheme

(1)A distributor-retailer and its participating local governments may enter into an agreement or agreements (each a transfer scheme) about—

(a)the transfer of assets, employees, instruments or liabilities of any of the following to allow the distributor-retailer to perform its geographic area functions—

(i)the local governments;

(ii)a joint local government under LGA 2009 or CBA 2010 all or part of the area of which includes the SEQ region;

(iii)the Metropolitan Water Supply and Sewerage Board constituted under the Metropolitan Water Supply and Sewerage Act 1909; and

(b)any other incidental, consequential or supplemental matter the distributor-retailer and the local governments consider necessary for the transfer.

(2)However, a transfer scheme has no effect unless it has been approved by the Minister and has taken effect under division 2.

(3)The matters mentioned in subsection (1) are the transition to a distributor-retailer from its participating local governments.

s 54 amd 2012 No.1 s 105 sch

56Particular matters scheme may provide for

(1)A transfer scheme may provide for all or any of the following—

(a)the joint transfer to a distributor-retailer of an asset or liability of any of its participating local governments and the terms of the joint transfer;

(b)the following for trust land for which any of the local governments is a trustee—

(i)the removal of the local government as the trustee;

(ii)the appointment of the distributor-retailer as the trustee or of the distributor-retailer and local government as joint trustees;

(iii)changing the purpose for which the trust land was reserved or granted in trust, including to a purpose other than a community purpose;

(c)whether and, if so, the extent to which the distributor-retailer is the successor in law of all or any of the local governments;

(d)a legal proceeding that is being or may be taken by or against all or any of the local governments to be continued or taken by or against the distributor-retailer;

(e)the application or transfer of an instrument to a distributor-retailer, including—

(i)whether a distributor-retailer holds, or is a party to, an instrument; and

(ii)whether an instrument, or a benefit or right provided by an instrument, is taken to have been given to, by or in favour of, a distributor-retailer; and

(iii)whether a reference to an entity in an instrument is a reference to a distributor-retailer; and

(iv)whether, under an instrument, an amount is or may become payable to or by a distributor-retailer or other property is, or may be, transferred to a distributor-retailer; and

(v)whether a right or entitlement under an instrument is held by a distributor-retailer;

(f)the transfer to the distributor-retailer of an employee of all or any of the local governments and the employee’s work entitlements and conditions of employment;

(g)subject to part 4, matters about employees of a local government transferred under paragraph (f) and their rights;

(h)the records of the distributor-retailer or the local governments.

(2)A transfer scheme may transfer an asset attached to land without transferring the land, even though the asset would otherwise be a part of the land.

(3)This section does not limit section 54.

(4)In this section—

authorisation includes accreditation, allocation, approval, certificate, entitlement, exemption, licence, manual, notice, permit and plan.

instrument includes an application or authority under an Act.

trust land includes land dedicated as a reserve, or granted in fee simple in trust, under the Land Act, chapter 3, part 1.

s 56 amd 2010 No. 20 s 11

56APeriod of transfer schemes

(1)A transfer scheme can not take effect after 30 September 2010.

(2)However, a transfer scheme may take effect for a matter mentioned in section 56(1)(f) before 1 July 2012.

(3)This section does not affect the giving of effect to a transfer scheme or anything done under a transfer scheme before or after the dates mentioned in subsection (1) or (2).

s 56A ins 2010 No. 20 s 12

57Request for approval

(1)A distributor-retailer’s participating local governments may ask the Minister for approval of a transfer scheme for the distributor-retailer.

(2)The request must be written and accompanied by—

(a)a copy of the scheme; and

(b)a certification made by all of the local governments that complies with section 58.

58Requirements for certification statement

(1)The certification must be in the approved form and state—

(a)that the local governments have carried out a due diligence process directed at identifying—

(i)all of their essential assets, liabilities and instruments relating to the provision of water services and wastewater services to customers in the distributor-retailer’s geographic area (the functions); and

(ii)whether anything proposed to be done under the transfer scheme would materially prejudice the interests of a third party; and

(b)that the transfer scheme—

(i)only transfers assets, liabilities and instruments identified under the process relating to the performance of the functions; and

(ii)transfers all of the essential assets, liabilities and instruments of the local governments identified under the process that—

(A)are necessary to perform the functions; and

(B)can be lawfully and practically transferred under a transfer scheme; and

(iii)identifies any assets that are to be jointly owned by the distributor-retailer and any of the local governments; and

(iv)does not to the local governments’ knowledge materially prejudice the interests of any third party, or if it does, that party’s consent to the prejudice has been obtained; and

(v)does not transfer an employee inconsistently with section 83 or the staff support framework; and

Note—

Sections 79 and 83 were repealed by the South-East Queensland Water (Distribution and Retail Restructuring) Amendment Act 2012. Section 79 provided for the approval of a staff support framework.

(c)that the local governments have consulted with the State archivist about the way in which records are to be dealt with under the scheme; and

(d)either—

(i)that the transfer scheme does not depart in any substantial way from any model transfer scheme prepared by the Minister and notified on the website of the Queensland Water Commission; or

(ii)if there is a substantial departure from the model—that the departure is necessary for the transition to the distributor-retailer from the local governments; and

(e)the reasons for any departure mentioned in paragraph (d)(ii); and

(f)that the local governments have given third parties notice of the following by a notice published in a newspaper circulating in all of the SEQ region—

(i)that the local governments and the distributor-retailer propose to ask the Minister for approval of the transfer scheme to allow the distributor-retailer to provide water services and wastewater services;

(ii)how third parties may obtain information about the transfer scheme from the local governments, other than private or confidential information concerning others; and

(g)that the local governments have, since the publication of the notice, made information mentioned in paragraph (f)(ii) available to third parties who have asked for it.

(2)For subsection (1)(b)(iv), a third party’s interests are not materially prejudiced merely because of a transfer to the distributor-retailer.

(3)The consultation with the State archivist may be carried out by a representative for all of the local governments.

s 58 amd 2010 No. 20 s 13; 2012 No. 13 s 4 (retro)

59Deciding request

(1)The Minister must consider the request and decide whether or not to approve the transfer scheme.

(2)The Minister may approve the transfer scheme only if it complies with division 1.

60Notice and taking effect of approved scheme

(1)If the Minister approves the transfer scheme, the Minister must within 21 days publish a gazette notice about the approval.

(2)The notice must state where information about the transfers under the scheme may be obtained.

(3)However, the notice need not state where information may be obtained if the Minister considers that there is a need to protect confidentiality or privacy relating to the information.

(4)The transfer scheme takes effect on the day the notice is gazetted or, if a later day is stated in the notice, on that day.

61Discharge of liabilities by transfer scheme

(1)The transfer of a liability of a local government under a transfer scheme discharges the local government from the liability to the extent provided for under the transfer scheme.

(2)Subject to section 64(2), a transfer scheme has effect despite any other law or other instrument.

62Transfer notice

(1)The Minister may, by gazette notice (a transfer notice), do any of the following for the transition to a distributor-retailer from its participating local governments—

(a)anything that may be done by any of them under a transfer scheme;

(b)rectify or undo anything the Minister considers a transfer scheme ought not to have done or ought to have done differently.

Example for paragraph (b)—

transfer back to a participating local government an asset the Minister considers ought not to have been transferred under a transfer scheme

(2)A transfer notice may include conditions applying to something done under the notice.

(3)If the Minister is satisfied it would be inappropriate for a particular matter to be stated in a transfer notice (for example, because of the size or nature of the matter), the Minister may provide for the matter by including a reference in the transfer notice to another document that is—

(a)signed by the Minister; and

(b)kept available at a place stated in the transfer notice for inspection by the persons to whom the matter relates.

(4)A transfer notice has effect on the day it is published in the gazette or a later day stated in it.

63Period of transfer notices

(1)A transfer notice can not take effect before 1 July 2010 or after 30 June 2012.

(2)However, subsection (1) does not affect the giving of effect to a transfer scheme after 30 June 2012 or anything done under a transfer scheme before or after that date.

s 63 amd 2011 No. 21 s 12

64Effect of transfer notice

(1)The transfer under a transfer notice of a liability discharges the person from whom the liability is transferred from the liability to the extent provided for under the transfer notice.

(2)A transfer notice has effect despite any other law, transfer scheme or other instrument.

65Transfer direction

(1)The Minister may give a direction (a transfer direction) to any of the following (a relevant entity) to do anything the Minister considers necessary to achieve the transition to a distributor-retailer from its participating local governments—

(a)the distributor-retailer;

(b)the board;

(c)any of the distributor-retailer’s participating local governments.

(2)Without limiting subsection (1), a transfer direction may be about—

(a)executing an instrument; or

(b)disclosing information; or

(c)for the distributor-retailer, according particular terms and conditions of employment to its employees affected by the transfer during a stated period after its establishment consistent with the staff support framework; or

(d)anything the Minister considers necessary to remedy a contravention of the staff support framework.

Note—

Section 79 provided for the approval of a staff support framework. That provision was repealed by the South-East Queensland Water (Distribution and Retail Restructuring) Amendment Act 2012.

(3)A transfer direction must be in writing and signed by the Minister.

(4)If a relevant entity is given a transfer direction—

(a)the entity must comply with the direction; and

(b)if the entity is the distributor-retailer—its board must take the action necessary to ensure the distributor-retailer complies with the direction.

Maximum penalty—1,000 penalty units.

(5)In this section—

board includes, for a local government, its councillors.

s 65 amd 2012 No. 13 s 5 (retro)

66Chapter applies despite other laws and instruments

A thing may be done under this chapter despite any other law or instrument.

Example—

A transfer scheme or transfer notice may transfer a trustee lease under the Land Act without the written approvals that would otherwise be required for a transfer under section 58 of that Act.

67Decisions not reviewable

(1)A decision under this chapter—

(a)is final and conclusive; and

(b)can not be challenged, appealed against, reviewed, quashed, set aside or called into question in any other way, under the Judicial Review Act 1991 or otherwise (whether by the Supreme Court, another court, a tribunal or another entity); and

(c)is not subject to any writ or order of the Supreme Court, another court, a tribunal or another entity on any ground.

(2)In this section—

decision includes a decision or conduct leading up to or forming part of the process of making a decision.

68Effect on legal relationships

(1)Nothing done under this chapter including a thing done by or in compliance with, a transition document—

(a)makes a relevant entity liable for a civil wrong or a contravention of a law or for a breach of a contract or confidence; or

(b)makes a relevant entity in breach of any instrument, including an instrument prohibiting, restricting or regulating the assignment, novation or transfer of a right or liability or the disclosure of information; or

(c)is taken to fulfil a condition that—

(i)allows a person to terminate an instrument or obligation or modify the operation or effect of an instrument or obligation; or

(ii)allows a person to enforce an obligation contained in an instrument or requires a person to perform an obligation contained in an instrument; or

(iii)requires any money to be paid before its stated maturity; or

(d)releases a surety or other obligee, wholly or partly, from an obligation.

(2)If apart from this subsection, the advice, consent or approval of a person would be necessary to do something under this chapter, the advice is taken to have been obtained or the consent or approval is taken to have been given unconditionally.

Example—

A contract entered into by a local government provides that it agrees not to transfer a particular asset without a particular person’s consent and that if the consent is given, it may be subject to particular conditions.

If the asset is transferred to a distributor-retailer under a transfer scheme or transfer notice, the consent required under the contract is taken to have been given unconditionally.

(3)If apart from this Act, giving notice to a person would be necessary to do something under this chapter, the notice is taken to have been given.

(4)In this section—

relevant entity means—

(a)the State or an employee or agent of the State; or

(b)a participating local government for a distributor-retailer or any of the local government’s councillors, employees or agents; or

(c)a distributor-retailer, a member of a board or an employee or agent of a distributor-retailer.

69Disclosure and use for transition of information

(1)A person may disclose information in the possession or control of a local government for the purpose of the transition to its distributor-retailer, or for the distributor-retailer to perform its geographic area functions, to—

(a)a person involved in the transition; or

(b)a member of the board or an employee or agent of the distributor-retailer; or

(c)another participating local government of the distributor-retailer.

(2)A distributor-retailer or its board must comply with a request by the Minister for the disclosure of information under subsection (1) to a person.

(3)A person may use information in the possession or control of a distributor-retailer for the purpose of the transition from its participating local governments.

(4)Also, to remove any doubt, it is declared that a person may disclose or use information in compliance with a transition document.

(5)A person who acting honestly discloses or uses information under this section is not liable civilly, criminally or under an administrative process for the disclosure or use.

(6)This section is subject to the Information Privacy Act 2009 and the Right to Information Act 2009.

s 69 amd 2010 No. 20 s 14

70Registering authority to register or record transfer

(1)A registering authority must, on written application by a transferee entity, register or record in the appropriate way the transfer of an asset, liability or instrument under a transfer scheme or transfer notice to the transferee entity.

(2)A regulation may exempt the transferee entity or the transferor to the transferee entity from complying with a relevant procedure required by the registering authority or under another law for the purpose of registering or recording the transfer.

Example of what may be a relevant procedure—

The registering authority may require the transferee entity to complete and submit a particular form.

(3)Subject to subsection (2) the transferee entity must comply with the procedures.

(4)In this section—

registering authority means the registrar or another entity required or authorised by law to register or record transactions affecting or relating to assets, liabilities or instruments.

transferee entity means the entity to which an asset, liability or instrument is transferred under a transfer scheme or transfer notice.

71Non-liability for State taxes, charges or fees

(1)A local government or distributor-retailer is not liable to pay any of the following relating to anything done under a transition document—

(a)a tax under the Duties Act 2001 or another Act;

(b)a charge or fee under the Land Act, Land Title Act, Transport Operations (Road Use Management) Act 1995, Water Act or another Act.

(2)In this section—

tax includes duty, impost and levy.

72Existing acquisitions

(1)This section applies to land acquired by a local government as a constructing authority under the Acquisition of Land Act.

(2)If the land is transferred to a distributor-retailer under this chapter, the distributor-retailer is, for section 41 of that Act, taken to be the constructing authority that acquired that land on the day it was acquired.

73Acquisitions interrupted by transfer scheme or notice

(1)This section applies if—

(a)a participating local government of a distributor-retailer has—

(i)served a notice of intention to resume to take land as a constructing authority under the Acquisition of Land Act; or

(ii)entered into an agreement to take land; and

(b)the purpose of the proposed resumption relates to the distributor-retailer’s geographic area functions.

(2)The distributor-retailer may by notice given to each affected person decide to continue the taking.

(3)The notice must state—

(a)that the distributor-retailer has become the constructing authority for the taking; and

(b)its address for service of documents.

(4)On the giving of the notice, for the Acquisition of Land Act—

(a)the distributor-retailer becomes the constructing authority for the taking; and

(b)the local government’s rights and obligations concerning the taking end.

(5)However, the purpose of the taking does not change.

(6)In this section—

affected person, for the taking, means—

(a)each person—

(i)on whom the local government served a notice of intention to resume the land; or

(ii)with whom the local government has entered into an agreement to take the land; and

(b)anyone else the distributor-retailer considers is financially affected by the taking.

s 73 amd 2010 No. 20 s 15

74Provisions for distributor-retailer becoming constructing authority

(1)This section applies if under section 73, a distributor-retailer becomes the constructing authority for the taking of land instead of a local government.

(2)The local government must give the distributor-retailer the documents relating to the taking.

(3)Despite the Acquisition of Land Act, section 12(1) the land taken under a gazette resumption notice under that Act vests in the distributor-retailer.

(4)The distributor-retailer—

(a)has for the taking the same powers and obligations under the Acquisition of Land Act as the local government; and

(b)does not represent the State for section 12 of that Act.

(5)The right under the Acquisition of Land Act of a person who was served with a notice to take or who entered into an agreement to take the land does not change.

(6)A reference to the local government in a document relating to the taking is, if the context permits, taken to be a reference to the distributor-retailer.

(7)Without limiting subsection (6), if the local government was taking the land under an agreement to take—

(a)a reference in the agreement to the local government is taken to be a reference to the distributor-retailer; and

(b)the agreement gives rise to the same rights and liabilities as would have arisen if the local government were a party to the agreement.

75Terminating trust land and granting freehold interest

(1)This section applies if—

(a)a transferred asset is attached to land that is trust land under the Land Act; and

(b)the Land Act Minister is satisfied the part of the land on which the transferred asset is situated is of adequate area to be allocated as freehold land, having regard to the location of the transferred asset and the use made of the adjoining land.

(2)The Land Act Minister may under that Act, on application to the Land Act chief executive by the distributor-retailer to whom the transferred asset was transferred—

(a)if the land is a reserve—revoke all or part of the reserve; or

(b)if the land is a deed of grant in trust—require the trustee to surrender all or part of the deed of grant in trust.

(3)If the Land Act Minister acts under subsection (2), the Governor in Council may under the Land Act, issue a deed of grant for the land to the distributor-retailer.

(4)For the purposes of the Land Act, chapter 4, part 1, division 2, freehold title may be granted without competition.

(5)An evaluation under the Land Act, section 16 is not required for the allocation of the land.

(6)The Land Act Minister must decide the purchase price for the land.

(7)Before approving a plan of subdivision identifying the area of the revocation, the Land Act Minister may require the distributor-retailer and the trustee of the reserve to agree to a plan of subdivision to define the boundaries of the land.

(8)The following provisions of the Land Act do not apply to a revocation of all or part of a reserve—

(a)sections 34A, 34B and 34E;

(b)section 34H relating to an improvement that is a transferred asset.

(9)In this section—

transferred asset means an asset transferred under a transfer scheme or transfer notice without the transfer of land to which the asset is attached or a change in the trusteeship.

76Granting Land Act lease

(1)This section applies if—

(a)a transferred asset is attached to land that is a reserve or unallocated State land; and

(b)the Land Act Minister is satisfied the part of the land on which the transferred asset is situated (the relevant part) is not of adequate area to be allocated as freehold land, having regard to the location of the transferred asset and the use made of the adjoining land.

(2)The Land Act Minister may, on application to the Land Act chief executive by the distributor-retailer to whom the transferred asset was transferred, grant under the Land Act to the distributor-retailer a lease over the relevant part.

(3)If the land is a reserve and the Land Act Minister grants a State lease over the relevant part, that Minister may, before granting the lease, require the distributor-retailer and the trustee of the reserve to agree to a plan of survey identifying the relevant part.

(4)If the Land Act Minister decides to grant a lease under this section, it must be for the maximum term permitted under the Land Act.

(5)For the Land Act, chapter 5, part 1, division 1, the annual rent for the lease is the minimum rent applicable for the category of the lease.

(6)An evaluation under the Land Act, section 16 is not required for the allocation of the land.

(7)In this section—

transferred asset means an asset transferred under a transfer scheme or transfer notice without the transfer of land to which the asset is attached or a change in the trusteeship.

ch 3 pt 3 div 2 sdiv 3 hdg sub 2010 No. 20 s 16

77Application of sdiv 3

(1)This subdivision applies if—

(a)a participating local government of a distributor-retailer is a party to an infrastructure agreement; and

(b)either of the following apply—

(i)a transition document transfers to the distributor-retailer water infrastructure subject to the infrastructure agreement;

(ii)the infrastructure agreement provides for water infrastructure in the distributor-retailer’s geographic area.

(2)This subdivision applies subject to any transition document relating to the distributor-retailer.

(3)If the infrastructure agreement relates to both the water infrastructure and another type of infrastructure, the agreement is a bundled agreement.

s 77 amd 2009 No. 46 s 111

sub 2010 No. 20 s 16

77ANovation for unbundled agreements

(1)This section applies if the agreement relates only to the water infrastructure and not to any other type of infrastructure.

(2)The distributor-retailer—

(a)is taken to be a party to the agreement instead of the local government; and

(b)assumes all of the local government’s rights and liabilities under the agreement.

(3)The agreement may be enforced by the distributor-retailer as if it were the local government.

(4)The local government ceases to be bound by the agreement and is discharged from any further liability under it.

s 77A ins 2010 No. 20 s 16

77BBundled agreements—terms relating solely to water aspects

(1)This section applies if—

(a)the agreement is a bundled agreement; and

(b)a term of the agreement solely relates to either or both of the following (each a water aspect)—

(i)the water infrastructure;

(ii)the carrying out of water infrastructure work.

(2)The distributor-retailer assumes the following under the term—

(a)the local government’s rights against another party to the agreement (each an assumed right);

(b)the local government’s liabilities to another party to the agreement (each an assumed liability).

(3)An assumed right—

(a)may be discharged only by the discharging of it to the distributor-retailer; and

(b)may only be enforced by the distributor-retailer.

(4)An assumed liability—

(a)may be discharged only by the discharging of it by the distributor-retailer; and

(b)may be enforced only against the distributor-retailer.

s 77B ins 2010 No. 20 s 16

77CBundled agreement—mixed rights

(1)This section applies if—

(a)the agreement is a bundled agreement; and

(b)a term of the agreement gives a right to the local government; and

(c)the right relates, or may relate, to—

(i)a water aspect; and

(ii)another matter.

(2)The right may be discharged only by the discharging of it to the local government.

Example—

The term requires another party to the agreement to give the local government security for the general performance of that party’s liabilities under the agreement. The term does not provide for any particular amount for water aspects. The security must be given to the local government.

(3)Only the local government may enforce the right.

Example—

The term requires another party to the agreement to construct infrastructure to a particular standard. The standard is capable of applying to the water infrastructure and to other types of infrastructure. Only the local government may enforce the requirement.

(4)However, the local government must, at the distributor-retailer’s request, enforce the right to the extent it relates to water aspects.

(5)For any enforcement by the local government under subsection (3), any cost, damage or loss of the distributor-retailer relating to water aspects is taken to be a cost, damage or loss of the local government.

s 77C ins 2010 No. 20 s 16

77DBundled agreement—mixed liabilities

(1)This section applies if—

(a)the agreement is a bundled agreement; and

(b)a term of the agreement imposes a liability on the local government; and

(c)the liability relates, or may relate, to—

(i)a water aspect; and

(ii)another matter.

(2)The liability—

(a)may be discharged only by the discharging of it by the local government; and

(b)may be enforced only against the local government.

(3)For the enforcement of a liability against the local government under subsection (2), any interest or right of the distributor-retailer relating to water assets is taken to be an interest or right of the local government.

s 77D ins 2010 No. 20 s 16

77ENegotiation about mixed rights and liabilities

(1)The local government and the distributor-retailer (each a negotiation party) must negotiate in good faith about the extent to which each of them are to share the following—

(a)rights to which section 77C applies;

(b)liabilities to which section 77D applies;

(c)costs incurred because of enforcement mentioned in section 77C;

(d)any costs, damage, liability or loss the local government incurs because of section 77D(2).

(2)If, after the negotiation, the negotiation parties are in dispute about a matter mentioned in subsection (1), either negotiation party may refer the dispute to the Minister.

(3)The Minister may resolve the dispute in any way the Minister considers appropriate that affords natural justice to the negotiation parties.

(4)The Minister’s decision on the resolution of the dispute binds the negotiation parties.

(5)The Minister may delegate the Minister’s functions under subsection (3) to an appropriately qualified public service officer.

s 77E ins 2010 No. 20 s 16

amd 2012 No.1 s 105 sch

77FOther necessary changes to be made for transition

(1)This section applies subject to the other provisions of this subdivision.

(2)References in the agreement to the local government are taken to be changed to reflect any necessary changes for the transition from the local government to the distributor-retailer.

s 77F ins 2010 No. 20 s 16

77GOther party’s rights and liabilities not affected

To remove any doubt, it is declared that this subdivision does not create any greater right for, or impose any greater liability on, a party to the agreement other than the local government or the distributor-retailer.

Note—

See also section 68 (Effect on legal relationships).

s 77G ins 2010 No. 20 s 16

77HProvision for things done under agreement before the transfer

The transfer of the water infrastructure under the transition document does not affect the validity of any of the following done before the transfer—

(a)an infrastructure charge or cost levied by the local government under the repealed SPA, chapter 8, part 1 or the repealed IPA, chapter 5, part 1;

(b)a condition imposed by the local government under the repealed SPA, chapter 8, part 1 or section 848 or repealed IPA, chapter 5, part 1 or section 6.1.31;

(c)any other decision, charge, condition, contribution or agreement made, levied or imposed by the local government under the repealed SPA or repealed IPA.

s 77H ins 2010 No. 20 s 16

amd 2016 No. 27 s 455

ch 3 pt 3 div 2 sdiv 3A hdg ins 2010 No. 20 s 16

77IApplication of sdiv 3A

(1)This subdivision applies for a relevant action by a participating local government of a distributor-retailer if—

(a)under the relevant action a liability to the local government has accrued to it, or may at any time accrue to it; and

(b)all or part of the liability is for—

(i)water infrastructure constructed or to be constructed in the distributor-retailer’s geographic area; or

(ii)a charge for the provision of water services or wastewater services.

(2)This subdivision applies subject to any transition document relating to the distributor-retailer.

(3)In this section—

relevant action means any of the following—

(a)a compliance permit, development approval, decision, charge, condition or contribution under the repealed SPA decided, made, levied or imposed before 1 July 2010;

(b)a development approval under the repealed SPA decided after 1 July 2010 if the relevant development application was made before 1 July 2010;

(c)a compliance permit under the repealed SPA decided after 1 July 2010, if the relevant request for compliance assessment under that Act was made before 1 July 2010;

(d)an approval of a plan under the repealed Integrated Planning Act 1997, chapter 3, part 7, as continued in force under the repealed SPA, section 815.

s 77I ins 2010 No. 20 s 16

amd 2016 No. 27 s 456

77JTransfer of liability in particular circumstance

If all of the liability is for water infrastructure or for the charge for water services or wastewater services, the liability is taken to be a liability to the distributor-retailer instead of the local government.

s 77J ins 2010 No. 20 s 16

77KProvisions for sharing benefit of liability not solely for water infrastructure

(1)This section applies if—

(a)the liability is for the water infrastructure; and

(b)under the relevant action there is also a liability for infrastructure other than water infrastructure; and

(c)the terms of the relevant action do not attribute a specific part of the liability to the water infrastructure.

(2)The local government and the distributor-retailer (each a negotiation party) must negotiate in good faith about the extent to which each of them is to share the benefit of the liability.

(3)If, after the negotiation, the negotiation parties are in dispute about how to share the liability, either negotiation party may refer the dispute to the Minister.

(4)The Minister may resolve the dispute in any way the Minister considers appropriate that affords natural justice to the negotiation parties.

(5)The Minister’s decision on the resolution of the dispute binds the negotiation parties.

(6)The Minister may delegate the Minister’s functions under this section to an appropriately qualified public service officer.

s 77K ins 2010 No. 20 s 16

amd 2012 No. 1 s 105 sch

77LChanges in references under relevant action

(1)A reference in the relevant action to the carrying out of water infrastructure work by the local government is taken to be a reference to the distributor-retailer carrying out the work.

(2)A reference in the relevant action to the person who bears the liability to do something relating to the local government concerning the water infrastructure is taken to be a reference to the person doing that thing relating to the distributor-retailer.

(3)Other references in the relevant action to the local government are taken to be changed to reflect any necessary changes for the transition from the local government to the distributor-retailer.

s 77L ins 2010 No. 20 s 16

78Reconfiguring a lot after transfer scheme or notice takes effect

(1)This section applies if a transition document transfers or requires the transfer from a local government to a distributor-retailer of—

(a)part of a lot, as described in a plan of subdivision for reconfiguring the lot, on which a transferred asset is situated; or

(b)part of a lot that is transferred land as described in a plan of subdivision for reconfiguring the lot; or

(c)part of a lot that is adjacent to transferred land as described in a plan of subdivision for reconfiguring the lot.

(2)The distributor-retailer may lodge in the land registry under the Land Title Act the plan of subdivision for reconfiguring the lot to give effect to the transfer or requirement.

(3)The Planning Act does not apply to the reconfiguring of the lot.

(4)Despite the Land Title Act, section 50 the plan of subdivision for reconfiguring the lot does not require the agreement, approval or consent of any entity.

(5)In this section—

transferred asset means an asset transferred under a transition document without the transfer of land to which the asset is attached.

transferred land means land transferred under a transition document.

s 78 amd 2009 No. 46 s 112; 2016 No. 27 s 457

ch 3 pt 4 hdg amd 2012 No. 13 s 6 (retro)

ch 3 pt 4 div 1 hdg om 2012 No. 13 s 7 (retro)

ch 3 pt 4 div 2 hdg om 2012 No. 13 s 7 (retro)

81Application of pt 4

This part applies to the transfer of an employee of a local government (the former employer) to a distributor-retailer (the new employer) under a transition document.

s 81 amd 2012 No. 13 s 8 (retro)

82Continuity of employment

(1)The transfer does not—

(a)interrupt continuity of service, except that the employee is not entitled to claim the benefit of a right or entitlement more than once for the same period of service; or

(b)constitute a termination of employment by the former employer or a retrenchment or redundancy; or

(c)entitle the employee to a payment or other benefit because he or she is no longer employed by the former employer; or

(d)require the former employer to make any payment for the employee’s accrued rights to recreation, sick, long service or other leave irrespective of any arrangement between the former employer and the employee.

(2)The transfer has effect despite any other law, contract or other instrument.

84Application of pt 5

(1)This part applies if—

(a)a local government owns land or is the trustee of trust land to which an asset is attached; and

(b)the land or asset is transferred or the local government is removed as trustee for the trust land and a distributor-retailer is appointed as trustee under a transfer scheme or transfer notice; and

(c)after the transfer or change in the trusteeship, one entity (the asset owner) owns the asset and another entity (the landowner) owns or occupies the land to which the asset is attached.

(2)To remove any doubt, it is declared that this part applies to anyone who owns or occupies the land at any time after the transfer.

85References to land with asset attached

A reference in this part to land to which an asset is attached is a reference to the parcel of land for which there is an instrument of title that includes the particular area covered by the asset.

86Entry to and use of land and structures by asset owner

(1)This section applies for the following places—

(a)the land to which an asset is attached (the relevant land);

(b)any other land owned or occupied by the landowner that forms a contiguous parcel of land with the relevant land;

(c)any structure on the relevant land.

(2)An employee or agent of the asset owner may enter the place at all reasonable times if the entry is—

(a)necessary to do something relating to the asset for the performance of the asset owner’s functions as a distributor-retailer; or

(b)necessary for the continued use of the asset in a way it was lawfully used before the transfer.

Examples of things for which entry may be necessary—

•carrying facilities into, through, across or under the land

•performing work on the land

•inspecting, operating, changing, maintaining, removing, repairing or replacing the asset

(3)Also, the asset owner may allow other persons to enter the place at the times stated and as otherwise provided for in the transfer scheme or transfer notice.

(4)This section does not apply to the entry of a structure or the part of a structure used for residential purposes.

(5)To remove any doubt, it is declared that this section does not limit the making of other agreements between the asset owner and landowner about entry to or use of the place.

87Compensation to landowner for entry and use

If the landowner incurs loss or damage because of the asset owner’s exercise of a power under section 86, the landowner is entitled to be paid compensation by the asset owner—

(a)as worked out under the transfer scheme or transfer notice; or

(b)as otherwise agreed between them.

88Landowner’s obligations for asset

The landowner can not, without the asset owner’s written consent—

(a)interfere with the asset; or

(b)take any step to change the use of the land to which the asset is attached; or

(c)carry out material works or make material improvements to the land; or

(d)grant rights to anyone else relating to the land that are inconsistent with the asset owner’s rights under section 86 or use of the asset.

Maximum penalty—50 penalty units.

89Registration of information about asset

(1)The asset owner may give a written request to the registrar to record the following information—

(a)that this part applies to the land to which the asset is attached;

(b)a description of the asset;

(c)the name of the asset owner.

(2)On receiving the request, the registrar must make a record in a way that a search of a relevant register kept by the registrar under the Land Act or the Land Title Act will show the information.

(3)On written request from the asset owner, the registrar must cancel the record.

90Application of pt 6

(1)This part applies if—

(a)a participating local government for a distributor-retailer is the grantee under an easement; and

(b)the purpose for which the easement was created includes water supply or sewerage purposes.

(2)In this section—

easement includes a public utility easement under the Land Act or the Land Title Act.

91Rights, liabilities and obligations under easement

(1)To the extent the easement relates to the purposes, the distributor-retailer—

(a)may exercise the same rights as the local government; and

(b)is subject to the same liabilities and obligations as the local government.

(2)However, the rights may be exercised only for the construction, installation, repair, replacement or removal of infrastructure relating to the purposes.

(3)This section does not remove or otherwise affect the local government’s rights, liabilities and obligations under the easement.

(4)The distributor-retailer and the local government may make an agreement about the joint use of the easement.

92Registration of information about easement

(1)The local government or the distributor-retailer may give a written request to the registrar to record the following information—

(a)that this part applies to the easement;

(b)an identifying number of the easement;

(c)the distributor-retailer’s name.

(2)On receiving the request, the registrar must make a record in a way that a search of a relevant register kept by the registrar under the Land Act or the Land Title Act will show the information.

(3)On written request from the local government or the distributor-retailer, the registrar must cancel the record.

ch 3A hdg ins 2012 No. 1 s 23

ch 3A pt 1 hdg ins 2012 No. 1 s 23

92AAApplication of ch 3A

This chapter applies, and anything done under it takes effect, despite any other provision of this Act or another law, a transfer document, a participation agreement or a contract or other instrument.

s 92AA ins 2012 No. 1 s 23

92ABWhat is Allconnex

Allconnex is the Southern SEQ Distributor-Retailer Authority.

s 92AB ins 2012 No. 1 s 23

92ACWhat is a withdrawn council

A withdrawn council is—

(a)the Gold Coast City Council; or

(b)the Logan City Council; or

(c)the Redland City Council.

Note—

The withdrawn councils are Allconnex’s participating local governments.

s 92AC ins 2012 No. 1 s 23

92ADWhat is Allconnex’s successor

(1)

Allconnex’s successor is—

(a)for a provision about a customer—the withdrawn council in whose local government area the customer received, or wanted to receive, services from Allconnex of a type mentioned in the Water Supply Act, schedule 3, definition customer; or

(b)for a provision about an asset, liability or matter that, under a retransfer document or part 4, division 2, is transferred to a withdrawn council—that council; or

(c)for an infrastructure agreement that provides for water infrastructure for a withdrawn council’s local government area—that council; or

(d)for a provision about a matter not provided for under paragraphs (a) to (c)—the geographically-connected withdrawn council.

Example for paragraph (d)—

Under this chapter, water infrastructure is transferred to a withdrawn council. That council is Allconnex’s successor for a provision about a trade waste approval by it authorising discharge into the infrastructure.

(2)If a matter is located in, or relates to, more than 1 withdrawn council’s local government area, each of them is a successor of Allconnex.

(3)If, under this chapter, the withdrawn councils are stated to be Allconnex’s proportional joint successor for a matter, all of them are its joint successor, rateably in accordance with their participation rights under Allconnex’s participation agreement immediately before the retransfer.

(4)In this section—

liability does not include a matter that is, or may be, the subject of a dispute referral under the EWO Act or a liability under an order under that Act.

matter includes—

(a)an authority, application, document, proceeding and water infrastructure; and

(b)a relevant action under section 77I(3), definition relevant action; and

(c)an Allconnex infrastructure funding matter.

s 92AD ins 2012 No. 1 s 23

ch 3A pt 2 hdg ins 2012 No. 1 s 23

ch 3A pt 2 div 1 hdg ins 2012 No. 1 s 23

92AEApplication of pt 2

This part applies from the end of 30 June 2012.

s 92AE ins 2012 No. 1 s 23

ch 3A pt 2 div 2 hdg ins 2012 No. 1 s 23

92AFAllconnex ceases to be service provider

Allconnex ceases to be a service provider.

s 92AF ins 2012 No. 1 s 23

92AGWithdrawn councils become service providers

(1)Each withdrawn council becomes a service provider for its local government area.

(2)The Water Supply Act, section 20 does not apply to a withdrawn council.

(3)A withdrawn council continues to be a service provider, subject to the Water Supply Act.

(4)A withdrawn council must, as soon as practicable, give the regulator the information mentioned in the Water Supply Act, section 12 about the council as a service provider.

s 92AG ins 2012 No. 1 s 23

92AHNo notice to regulator required

The Water Supply Act, sections 24 and 25 do not apply for Allconnex’s cessation as, or the withdrawn councils becoming, a service provider.

s 92AH ins 2012 No. 1 s 23

92AIWithdrawn council’s initial service area

(1)A withdrawn council’s service area is that part of its local government area (the new area) that was in Allconnex’s service area at the end of 30 June 2012.

(2)This section—

(a)does not prevent the Water Supply Act, chapter 2, part 5, division 2 from applying to the new area; but

(b)is subject to section 92DB.

s 92AI ins 2012 No. 1 s 23

92AJCreation of commercial business units for withdrawn councils

(1)For LGA 2009, each withdrawn council is taken to have decided by resolution to do the following—

(a)commercialise a significant business for the services it provides as a water service provider (its WSP business);

(b)create a commercial business unit for its WSP business.

(2)Until a withdrawn council decides otherwise, the name of its WSP business is the name of its commercial business unit for the services under the repealed Local Government Act 1993 immediately before 1 July 2010.

(3)If a withdrawn council’s WSP business proposes to develop significant water infrastructure, the council must consult with any other withdrawn council or distributor-retailer whose local government area or geographic area adjoins the council’s local government area.

(4)To remove any doubt, it is declared that this section does not limit or otherwise affect a withdrawn council’s capacity under LGA 2009 to create a corporate entity to acquire and conduct its WSP business.

s 92AJ ins 2012 No. 1 s 23

92AKMigration of customers

A person who, at the end of 30 June 2012, is a customer of Allconnex as a service provider becomes a customer of its successor, as a service provider on 1 July 2012.

s 92AK ins 2012 No. 1 s 23

92ALMigration of appointments and delegations

(1)This section applies to a person who, at the end of 30 June 2012, holds an appointment or delegation from Allconnex about a matter.

(2)On 1 July 2012, the person is taken to hold the appointment or delegation from Allconnex’s successor for the matter.

(3)Subsection (2) does not affect the successor’s power to end or change the appointment or delegation.

s 92AL ins 2012 No. 1 s 23

ch 3A pt 2 div 3 hdg ins 2012 No. 1 s 23

92AMApplication of particular provisions of ch 2C

(1)The following provisions of chapter 2C, and any definitions relevant to them, apply for a withdrawn council, with the changes mentioned in subsection (2)—

•section 53CL(c)

•section 53CN

•section 53DA

•part 2, division 7

•part 3.

(2)The provisions apply—

(a)as if a reference in them to a discharge officer were a reference to a local government worker, under LGA 2009, of the withdrawn council authorised by it to perform functions mentioned in section 53CL; and

(b)as if a reference to a distributor-retailer included a reference to the withdrawn council; and

(c)with other necessary changes.

s 92AM ins 2012 No. 1 s 23

92ANOther functions not affected

To remove any doubt, it is declared that this division does not limit or otherwise affect the withdrawn council’s or the local government worker’s functions under LGA 2009.

s 92AN ins 2012 No. 1 s 23

ch 3A pt 2 div 4 hdg ins 2012 No. 1 s 23

92AOLegal status unaffected until dissolution

To remove any doubt, it is declared that, until Allconnex is dissolved, nothing in this chapter—

(a)affects its establishment and legal status under sections 8 and 9; or

(b)makes the State liable for any of its liabilities.

s 92AO ins 2012 No. 1 s 23

92APResidual functions

Allconnex can not perform functions other than those that are required, necessary or convenient—

(a)for this chapter or a law applying to it until its dissolution; or

(b)because it has been a service provider or it continues to be a distributor-retailer.

s 92AP ins 2012 No. 1 s 23

92AQBoard

(1)The old board provisions apply for Allconnex’s board.

(2)However, the associated employee restrictions do not apply.

(3)In this section—

associated employee restrictions means sections 33(4) and (5) and 35(3) under the old board provisions.

old board provisions means chapter 2, part 4, and the definition associated employee in the schedule, as in force before this section commences.

s 92AQ ins 2012 No. 1 s 23

ch 3A pt 3 hdg ins 2012 No. 1 s 23

ch 3A pt 3 div 1 hdg ins 2012 No. 1 s 23

ch 3A pt 3 div 1 sdiv 1 hdg ins 2012 No. 1 s 23

92ARRequirement to make scheme

(1)Before 30 April 2012 Allconnex and all of the withdrawn councils (the parties) must enter into an agreement (the retransfer scheme) that—

(a)subject to this chapter—

(i)transfers at the end of 30 June 2012 all of Allconnex’s assets, employees (other than its chief executive officer), instruments and liabilities to the withdrawn councils; and

(ii)does everything else of an incidental, consequential or supplemental nature the parties consider necessary for the following—

(A)the transfers mentioned in subparagraph (i);

(B)financial, staffing and other arrangements for Allconnex to perform its functions pending its dissolution;

(C)Allconnex’s dissolution; and

(b)complies with this division.

(2)The matters mentioned in subsection (1) are the retransfer.

(3)The retransfer must, as nearly as practicable, retransfer to each withdrawn council the assets, employees, instruments and liabilities that the council transferred to Allconnex under chapter 3.

(4)However, subsection (3) does not apply if the parties unanimously otherwise agree.

s 92AR ins 2012 No. 1 s 23

92ASRestriction on scheme taking effect

The retransfer scheme has no effect until the Minister publishes a gazette notice about it under section 92BA(2).

s 92AS ins 2012 No. 1 s 23

ch 3A pt 3 div 1 sdiv 2 hdg ins 2012 No. 1 s 23

92ATRequirement to deal with proceedings and claims

(1)A retransfer scheme must provide for all of the following—

(a)the withdrawn council that is to be Allconnex’s replacement for—

(i)a proceeding by or against Allconnex; or

(ii)a cause of action for a proceeding that could have been started by Allconnex at the end of 30 June 2012 but has not been started;

(b)how the withdrawn councils are to receive, process and decide claims for contingent and other liabilities that, other than for this chapter or Allconnex’s dissolution, could have been made against Allconnex;

(c)all of the liabilities to be assumed by 1 or more of the withdrawn councils.

(2)However, if, under a transition document, Allconnex became a party to a proceeding instead of a withdrawn council, the retransfer scheme must provide that the council is the replacement for the proceeding.

(3)Also, if Allconnex is, or may be, a party to a proceeding in the Planning and Environment Court or the Land Court about land, the retransfer scheme must provide that the replacement for the proceeding is the geographically-connected withdrawn council.

(4)In this section—

liability does not include a matter that is, or may be, the subject of a dispute referral under the EWO Act or a liability under an order under that Act.

proceeding includes a proceeding that has ended.

s 92AT ins 2012 No. 1 s 23

92AUAccounting for assets and liabilities

(1)The retransfer scheme must do the following—

(a)include a process to account for the following—

(i)Allconnex’s unrealised assets and liabilities;

(ii)Allconnex’s liabilities to the withdrawn councils;

(iii)the withdrawn councils’ liabilities to Allconnex;

(b)transfer Allconnex’s assets in a way that includes the process and the operation of this chapter, including, for example, section 92BH;

(c)provide for all of Allconnex’s unrealised assets to be transferred to 1 or more of the withdrawn councils.

Note—

See also part 4, division 2 (Default provisions).

(2)In this section—

unrealised includes—

(a)for an asset—the right to the benefit of, or to a benefit under, any of the following—

(i)a matter mentioned in section 77H;

(ii)a relevant action under section 77I(3), definition relevant action;

(iii)an Allconnex infrastructure funding matter;

(iv)service charges under section 92BH; and

(b)for a liability—a liability that Allconnex may have that has not been, or the amount of which has not been, ascertained, or that is contingent.

Example of a contingent liability—

a liability the existence or amount of which depends on the outcome of a proceeding

s 92AU ins 2012 No. 1 s 23

92AVRequirement to retransfer particular land to same withdrawn council

(1)This section applies if—

(a)a withdrawn council owned land or was the trustee of trust land to which an asset is attached; and

(b)under a transfer scheme or transfer notice—

(i)the land or asset was transferred to Allconnex; or

(ii)the withdrawn council was removed as trustee for the trust land and Allconnex was appointed as trustee; and

(c)after the transfer or change in the trusteeship, one of them owns the asset and another owns or is trustee of the land to which it is attached.

(2)The retransfer scheme must provide that the effect of the matters mentioned in subsection (1) is to be reversed and that the withdrawn council will become—

(a)the owner of the asset; and

(b)the owner or trustee of the land.

s 92AV ins 2012 No. 1 s 23

92AWRequired transferee for after-acquired land

(1)The retransfer scheme must provide that all after-acquired land of Allconnex is to be transferred to the geographically-connected withdrawn council.

(2)In this section—

after-acquired land, of Allconnex, means any land of which Allconnex is the owner, other than land that was transferred to Allconnex under chapter 3.

s 92AW ins 2012 No. 1 s 23

92AXParticular matters scheme may provide for

(1)The retransfer scheme may provide for all or any of the following—

(a)the following for trust land for which Allconnex is a trustee—

(i)its removal as the trustee;

(ii)the appointment of a withdrawn council as the trustee;

(b)for a matter other than for which this chapter provides—

(i)that a withdrawn council is Allconnex’s successor in law for the matter; and

(ii)if there is more than 1 successor—how the successors share the matter as Allconnex’s successors;

(c)the application or transfer of an instrument to a withdrawn council, including, for example, any of the following—

(i)whether a withdrawn council holds, or is a party to, an instrument;

(ii)whether an instrument, or a benefit or right provided by an instrument, is taken to have been given to, by or in favour of, a withdrawn council;

(iii)whether a reference to an entity in an instrument is to be a reference to a withdrawn council;

(iv)whether, under an instrument, an amount is or may become payable to or by a withdrawn council or other property is, or may be, transferred to a withdrawn council;

(v)whether a right or entitlement under an instrument is held by a withdrawn council;

(d)the transfer to a withdrawn council of an employee of Allconnex and the employee’s work entitlements and conditions of employment;

(e)varying or terminating an instrument to which Allconnex and a withdrawn council are the parties;

(f)terminating the participation agreement between Allconnex and the withdrawn councils;

(g)extinguishing the withdrawn councils’ participation rights in Allconnex;

(h)the consideration for, or the value of the following—

(i)an asset or liability transferred under the retransfer;

(ii)participation rights extinguished;

(i)subject to part 8, matters about Allconnex’s employees transferred under paragraph (d) and their rights;

(j)Allconnex’s or the withdrawn councils’ records, including, for example, about complying with the Public Records Act 2002 for Allconnex’s records and access to them.

(2)This section—

(a)does not limit section 92AR; but

(b)is subject to the other provisions of this chapter.

(3)In this section—

authority includes accreditation, allocation, approval, certificate, entitlement, exemption, licence, manual, notice, permit and plan.

instrument includes an application or authority under an Act.

trust land includes land dedicated as a reserve, or granted in fee simple in trust, under the Land Act, chapter 3, part 1.

s 92AX ins 2012 No. 1 s 23

ch 3A pt 3 div 1 sdiv 3 hdg ins 2012 No. 1 s 23

92AYRequirement to give statement to Minister

(1)This section applies to the parties to the retransfer when they enter into the retransfer scheme.

(2)The parties must give the Minister a statement (the certification statement) certifying all of the assets, liabilities and instruments that the withdrawn councils are to receive under the scheme.

(3)The statement must also comply with section 92AZ.

s 92AY ins 2012 No. 1 s 23

92AZContent requirements

(1)The certification statement must state all of the following for the retransfer scheme—

(a)that the parties to the retransfer (the retransfer parties) have identified—

(i)all of Allconnex’s assets, liabilities and instruments; and

(ii)whether anything proposed to be done under the scheme would materially prejudice the interests of a third party;

(b)that all of the following apply for the scheme—

(i)the scheme transfers all of Allconnex’s assets, liabilities and instruments;

(ii)the scheme identifies any assets that are to be jointly used or accessed by the withdrawn councils;

(iii)agreements have been made between the withdrawn councils to ensure the joint use or access;

(iv)either—

(A)the scheme does not, to the knowledge of all the retransfer parties, materially prejudice the interests of any third party; or

(B)if the scheme materially prejudices the interests of any third party, the consent of all third parties so prejudiced has been obtained;

(v)the scheme does not transfer an employee inconsistently with the retransfer staff support framework;

Note—

Section 92EC provided for the approval of the retransfer staff support framework. That provision was repealed by the South-East Queensland Water (Distribution and Retail Restructuring) Amendment Act 2012.

(vi)the scheme otherwise complies with this Act;

(c)that the retransfer parties have consulted with the State Archivist about the way in which records are to be dealt with under the scheme;

(d)that the retransfer parties have given public notice to third parties about how they may obtain information (other than private or confidential information concerning others) about the scheme;

(e)that the retransfer parties have, since the giving of the public notice, made information mentioned in paragraph (d) available to third parties who have asked for it;

(f)that the statement is, after making all due enquiries, correct to the knowledge, information and belief of each individual signing it.

(2)For subsection (1)(b)(iv)(A), the fact of a transfer to a withdrawn council, is not, of itself, a material prejudice to a third party.

(3)The consultation with the State Archivist may be carried out by the withdrawn councils jointly.

(4)The certification statement must not contain private or confidential information concerning others.

(5)In this section—

public notice means a notice published in a newspaper circulating in all of the SEQ region.

s 92AZ ins 2012 No. 1 s 23

amd 2012 No. 13 s 10 (retro)

92BAMinisterial notice of retransfer

(1)This section applies only if the Minister is of the opinion that the certification statement given complies with section 92AZ.

(2)As soon as practicable after receiving the statement, the Minister must publish a gazette notice stating the following information about the retransfer scheme and the statement—

(a)that the scheme has been made;

(b)that the statement has been given;

(c)where copies of the statement can be obtained;

(d)that the scheme has effect from the day the notice is published, but that, under section 92AR, the retransfer will not take place until the end of 30 June 2012;

(e)where information about transfers under the scheme may be obtained.

(3)However, the notice must not state where the information may be obtained if the Minister considers that there is a need to protect confidentiality or privacy relating to the information.

(4)The withdrawn councils must, as soon as practicable after the gazettal, publish on each of their websites the information stated in the gazette notice and keep it so published for at least 1 year.

s 92BA ins 2012 No. 1 s 23

ch 3A pt 3 div 1 sdiv 4 hdg ins 2012 No. 1 s 23

92BBDischarge of liabilities

(1)When the retransfer scheme takes effect, all of the following that exist at that time are discharged—

(a)all of Allconnex’s liabilities to a withdrawn council;

(b)all liabilities from a withdrawn council to Allconnex other than Gold Coast City Council’s liability to Allconnex under section 92BY.

(2)To remove any doubt, it is declared that subsection (1) does not limit or otherwise affect what may or must be provided for under the retransfer scheme.

Note—

See also division 3 (Miscellaneous provisions for retransfer documents).

s 92BB ins 2012 No. 1 s 23

ch 3A pt 3 div 2 hdg ins 2012 No. 1 s 23

92BCRetransfer notice

(1)This section applies if the Minister is of the opinion that—

(a)a requirement under division 1 has not been complied with; or

(b)something done under the retransfer scheme ought to have been done differently; or

(c)something ought not to have been done under the retransfer scheme.

(2)The Minister may, by gazette notice published on or before 30 June 2013 (a retransfer notice), do all or any of the following—

(a)everything or anything to ensure the retransfer happens;

(b)anything that may be done by any of the parties to the retransfer scheme under the retransfer scheme;

(c)rectify or undo anything the Minister considers the retransfer scheme ought not to have done or ought to have done differently.

(3)A retransfer notice may include conditions applying to something done under the notice.

(4)If the Minister is satisfied it would be inappropriate for a particular matter to be stated in a retransfer notice (for example, because of its size or nature), the Minister may provide for it by including a reference in the retransfer notice to another document—

(a)signed by the Minister; and

(b)kept available for inspection at a place stated in the retransfer notice by the persons to whom the matter relates.

(5)A retransfer notice has effect on the day it is published in the gazette or a later stated day.

s 92BC ins 2012 No. 1 s 23

92BDRetransfer direction

(1)The Minister may, on or before 30 June 2013, give a direction (a retransfer direction) to any of the following (a relevant entity) to do anything the Minister considers necessary or desirable to achieve the retransfer—

(a)Allconnex;

(b)any of the withdrawn councils.

(2)Without limiting subsection (1), a retransfer direction may be about both or either of the following—

(a)executing an instrument;

(b)disclosing information.

(3)A retransfer direction must be in writing and signed by the Minister.

(4)If a relevant entity is given a retransfer direction—

(a)the entity must comply with the direction; and

(b)if the entity is Allconnex—its board must take the action necessary to ensure Allconnex complies with the direction.

Maximum penalty for subsection (4)—1,000 penalty units.

s 92BD ins 2012 No. 1 s 23

amd 2012 No. 13 s 11 (retro)

ch 3A pt 3 div 3 hdg ins 2012 No. 1 s 23

92BEDischarge of liabilities

The transfer of a liability under a retransfer document discharges the person from whom it is transferred from the liability to the extent provided for under the document.

s 92BE ins 2012 No. 1 s 23

92BFEffect of retransfer document

(1)A retransfer document has effect despite any other law or a contract or other instrument.

Example—

A retransfer scheme or a retransfer notice may transfer a lease under the Land Act without the written approvals that would otherwise be required for a transfer under section 58 of that Act.

(2)However, a retransfer scheme takes effect subject to any retransfer notice or retransfer direction.

s 92BF ins 2012 No. 1 s 23

amd 2012 No. 13 s 12 (retro)

ch 3A pt 4 hdg ins 2012 No. 1 s 23

ch 3A pt 4 div 1 hdg ins 2012 No. 1 s 23

92BGApplication of pt 4

This part, other than divisions 4 and 5, applies from the end of 30 June 2012.

s 92BG ins 2012 No. 1 s 23

ch 3A pt 4 div 2 hdg ins 2012 No. 1 s 23

ch 3A pt 4 div 2 sdiv 1 hdg ins 2012 No. 1 s 23

92BHAllconnex’s service charges

(1)This section applies if no retransfer document provides for who is Allconnex’s successor in law for a service charge of Allconnex.

(2)The withdrawn councils are Allconnex’s proportional joint successor for the charge.

(3)However—

(a)the charge is payable only to the geographically-connected withdrawn council; and

(b)only the geographically-connected withdrawn council may bill for an uncollected service charge or collect that charge.

(4)For subsection (3), a customer of the withdrawn council may be billed by the council in its name, as if—

(a)the council were Allconnex; and

(b)this chapter had not been enacted and, if Allconnex has been dissolved, Allconnex were still in existence.

(5)In this section—

billed includes imposed and levied.

service charge means an account, fee or charge (including any fixed access charge)—

(a)relating to performing Allconnex’s functions as a service provider for any of Allconnex’s customers; and

(b)that has, or could have, been billed by Allconnex.

uncollected service charge means a service charge—

(a)not billed before the end of 30 June 2012; and

(b)that, other than for this chapter or Allconnex’s dissolution, could have been billed by Allconnex on or after that day.

s 92BH ins 2012 No. 1 s 23

92BIAllconnex’s other assets and liabilities

(1)This section provides for who is the successor in law for the following if no retransfer document provides for that succession—

(a)an asset of Allconnex, other than a service charge under section 92BH;

(b)Allconnex’s liabilities.

(2)If, under a transition document, the asset or liability was transferred from a withdrawn council to Allconnex, that council is the successor.

(3)Otherwise, the withdrawn councils are Allconnex’s proportional joint successor for the asset or liability.

(4)Despite subsections (2) and (3), the Minister may, by a retransfer notice or retransfer direction, change the successor under the subsections.

s 92BI ins 2012 No. 1 s 23

92BJAllconnex’s replacement for proceedings

(1)This section applies if no retransfer document provides for who is to be Allconnex’s replacement for a proceeding, including a proceeding that has ended.

(2)If, under a transition document, Allconnex became a party to the proceeding instead of a withdrawn council, that council is the replacement.

(3)If the proceeding is in the Planning and Environment Court or the Land Court and the proceeding is about land, the replacement is the geographically-connected withdrawn council.

(4)Otherwise, the withdrawn councils are Allconnex’s proportional joint successor for the proceeding.

(5)The replacement may continue the proceeding instead of Allconnex.

s 92BJ ins 2012 No. 1 s 23

92BKProceedings not started

(1)This section provides for who is Allconnex’s replacement for a cause of action for which no proceeding has been started if no retransfer document provides for who is to be the replacement.

(2)If the proceeding could have been started in the Planning and Environment Court or the Land Court and the proceeding is about land, the replacement is the geographically-connected withdrawn council.

(3)Otherwise, the withdrawn councils are Allconnex’s proportional joint successor for the cause of action.

(4)The replacement may start the proceeding instead of Allconnex.

s 92BK ins 2012 No. 1 s 23

ch 3A pt 4 div 2 sdiv 2 hdg ins 2012 No. 1 s 23

92BLApplication of sdiv 2

(1)This subdivision applies if—

(a)Allconnex is a party to an infrastructure agreement; and

(b)either of the following apply—

(i)a retransfer document transfers water infrastructure subject to the infrastructure agreement to a withdrawn council;

(ii)the infrastructure agreement provides for water infrastructure for a withdrawn council’s local government area.

(2)This subdivision also applies for an Allconnex infrastructure funding matter or if—

(a)Allconnex has, under section 77B or 77J, assumed, or is taken to have the benefit of, a right or liability—

(i)to which the section applies; and

(ii)that relates to the infrastructure agreement; or

(b)it has been agreed under section 77E or 77K that Allconnex has a share of—

(i)a matter mentioned in section 77E(1); or

(ii)a liability to which section 77K applies.

(3)A matter mentioned in subsection (2) is an Allconnex planning matter.

(4)This subdivision applies subject to any retransfer document relating to Allconnex.

s 92BL ins 2012 No. 1 s 23

92BMNovation if only 1 successor

(1)This section applies if there is only 1 successor.

(2)The successor—

(a)becomes a party to the agreement instead of Allconnex; and

(b)assumes all of Allconnex’s rights and liabilities—

(i)under the agreement; or

(ii)that relate to an Allconnex planning matter.

(3)The agreement may be enforced by the successor as if it were Allconnex.

(4)A right or liability assumed under subsection (2)—

(a)may be discharged only by the discharging of it to the successor; and

(b)may be enforced only by the successor.

s 92BM ins 2012 No. 1 s 23

92BNNegotiation required if more than 1 successor

(1)This section applies if there is more than 1 successor.

(2)The successors must negotiate in good faith to reach an agreement about the extent to which each of them are to share all of Allconnex’s following rights and liabilities—

(a)those under the agreement;

(b)those relating to all Allconnex planning matters;

(c)for any costs incurred because of enforcement mentioned in section 77C;

(d)for any costs, damage, liability or loss incurred because of section 77D(2).

(3)The agreement may provide for how the shares of the rights and liabilities may be discharged or enforced.

(4)If, after the negotiation, the councils are still in dispute about a matter mentioned in subsection (1), any of the councils may refer the dispute to the Minister.

(5)The Minister may resolve the dispute using any process the Minister considers appropriate that affords natural justice to the councils.

Example of a process—

an arbitration process applying sections 92CF to 92CK

(6)The Minister may delegate the Minister’s functions under subsection (5) to an appropriately qualified public service officer.

s 92BN ins 2012 No. 1 s 23

92BOEffect of negotiated agreement or Minister’s decision

(1)This section applies for an agreement between successors or a decision under section 92BN about a right or liability required to be negotiated under that section.

(2)The agreement or decision binds—

(a)the successors; and

(b)anyone else—

(i)against whom the right is exercisable; or

(ii)to whom the liability is owed.

(3)However, subsection (2)(b) only applies to the other person from when the person is given notice of the agreement or decision.

s 92BO ins 2012 No. 1 s 23

92BPDischarge of Allconnex

Allconnex ceases to be bound by the agreement and is discharged from any further liability under it or for an Allconnex planning matter.

s 92BP ins 2012 No. 1 s 23

92BQOther necessary changes to be made for transition

(1)This section applies subject to the other provisions of this division.

(2)References in the agreement to Allconnex are taken to be changed to reflect any necessary changes for the retransfer.

s 92BQ ins 2012 No. 1 s 23

92BRProvision for things done before retransfer

The transfer of water infrastructure under a retransfer document does not affect the validity of any of the following done before the transfer—

(a)a matter mentioned in section 77H;

(b)the enforcement of a right or the discharge of a liability mentioned in sections 77A to 77D.

s 92BR ins 2012 No. 1 s 23

ch 3A pt 4 div 3 ins 2012 No. 1 s 23

92BSAuthorised exchange of information