(1) In these Rules, unless the contrary intention appears:
Act means the Water Act 2007.
additional termination fee: see subrule 71(4).
aggregate revenue requirement, in relation to infrastructure services provided by a Part 6 operator, means the sum of revenue from infrastructure charges and government contributions that was forecast for the regulatory period at the time that the ACCC made the initial determination or approval of the charges under rule 29.
application period, in relation to a Part 7 operator, means the period commencing:
(a) on 12 January 2011; or
(b) on the day on which the operator becomes a Part 7 operator—
whichever is the later, and ending:
(c) 3 months after that date or day, as the case requires; or
(d) if the operator makes an application to the ACCC under rule 46 during that period of 3 months—when the ACCC approves or determines the infrastructure charges set out in the application.
business day does not include a Saturday or a Sunday and:
(a) in relation to an obligation of an infrastructure operator, does not include a day that is a public holiday in the place where the operator’s principal place of business is situated;
(b) in relation to the ACCC, does not include a day that is a public holiday in the Australian Capital Territory.
charge application period:
(a) for a charge set out in a schedule of charges adopted by an infrastructure operator, in accordance with rule 11—see subrule 11(2);
(b) for a charge set out in a schedule of charges adopted by a person other than an infrastructure operator, in accordance with rule 12—see subrule 12(2).
contract includes agreement.
customer, in relation to an infrastructure operator, means a person who is entitled to infrastructure services, such as the holder of a water delivery right, from the operator.
discount includes bonus, rebate and allowance.
first regulatory period, for a Part 6 operator: see subrule 24A(3).
general termination fee: see subrule 71(4).
Division Division 4 - Water Charge Rules 2010 - Variation of approval or determination | Zoe
information request: see subrule 74(4).
infrastructure charge means a charge of a kind referred to in paragraph 91(1)(a), (b) or (d) of the Act other than:
(a) a fee to which rule 13 of the Water Market Rules 2009 applies; or
(b) a termination fee.
infrastructure service means access, or a service provided in relation to access, to water service infrastructure and includes the storage, delivery, drainage and taking of water.
levy includes impose or demand or cause to be imposed or demanded.
managed water resources means all water resources that are—
(a) Basin water resources;
(b) water resources (not being Basin water resources) in a referring State, or part of a referring State, if—
(i) a law of the referring State provides that section 100B of the Act applies to the State, or that part of the State; and
(ii) the regulations under the Act provide that section 100B of the Act applies to the State, or that part of the State;
(c) water resources (not being Basin water resources) in the Northern Territory, or a part of the Northern Territory, if—
(i) a law of the Northern Territory provides that section 100B of the Act applies to the Territory, or that part of the Territory; and
(ii) the regulations provide that section 100B of the Act applies to the Northern Territory, or that part of the Northern Territory—
but does not include water resources that are prescribed for the purposes of paragraph 100B(3)(a) of the Act.
member owned operator has the meaning given by rule 5.
Part 6 operator: see rule 23.
Part 7 operator: see rule 45.
planning and management charge means a charge of the kind referred to in paragraph 91(1)(c) of the Act that is determined by or on behalf of an agency of the Commonwealth or an agency of a State excluding charges determined by a local government body.
regulatory asset base means the value determined in accordance with Schedule 2.
regulatory event means:
(a) a change to the regulatory requirements imposed on an infrastructure operator relating to the provision of an infrastructure service; or
(b) the determination or approval by the ACCC or by an agency of a State under a law of the State of regulated water charges incurred by an infrastructure operator;
but does not include a requirement to pay a fine, penalty or compensation in relation to a breach of any law.
regulatory period, for a Part 6 operator, means the first regulatory period or a subsequent regulatory period, where:
(a) the first regulatory period for the operator begins on the regulatory start date for the operator; and
(b) each subsequent regulatory period begins when the previous one ends; and
(c) the length of a regulatory period is:
(i) if the ACCC has set a length for the period under rule 24—that length; or
(ii) otherwise—3 years.
Note 1: If the operator ceases to be a Part 6 operator, the operator continues to be treated as one for the remainder of its current regulatory period, but has no further regulatory periods—see rule 23D.
Note 2: See the transition provision in rule 81 for the regulatory period for an infrastructure operator that was a Part 6 operator immediately before 1 July 2020.
regulatory start date:
(a) for a Part 6 operator—see subrule 23C(11); or
(b) for a Part 7 operator—see subrule 45(1B).
Note 1: The regulatory start date for a Part 6 operator is the date from which Divisions 2, 3 and 4 of Part 6 will apply to the operator. See also subrule 30(2).
Note 2: The regulatory start date for a Part 7 operator is the date from which Division 2 of Part 7 will apply to the operator.
related customer, in relation to an infrastructure operator, has the meaning given by rule 6.
relevant tax means any tax payable by an infrastructure operator, other than:
(a) income tax and capital gains tax; or
(b) stamp duty, financial institutions duty and bank accounts debts tax; or
(c) penalties, charges, fees and interest on late payments, or deficiencies in payments, relating to any tax; or
(d) any tax that replaces or is the equivalent of or similar to any of the taxes referred to in paragraphs (a) to (c) (including any State equivalent tax).
right of access means a right of access to an infrastructure operator’s water service infrastructure or to services provided in relation to that right or a part of that right, including a water delivery right and a right to the drainage of water through that infrastructure.
schedule of charges means:
(a) for an infrastructure operator—a schedule of charges adopted under subrule 11(1); or
(b) for a person other than an infrastructure operator—a schedule of charges adopted under subrule 12(1).
State Agency means an agency of a State within the meaning of paragraph (c) of the definition of agency of a State in the Act.
taxation event: an event that consists of:
(a) a change in a relevant tax, in the application or official interpretation of a relevant tax, in the rate of a relevant tax, or in the way a relevant tax is calculated; or
(b) the removal of a relevant tax; or
(c) the imposition of a relevant tax;
is a taxation event for an infrastructure operator if, as a consequence, the costs to the service provider of providing an infrastructure service are increased or decreased.
terminating customer means:
(a) a customer who terminates or surrenders the whole or a part of a right of access by notice in writing given to the infrastructure operator; or
(b) a customer whose right of access is terminated by the infrastructure operator:
(i) by notice in writing given in accordance with the contract or arrangement applicable to that right; and
(ii) on grounds that the customer is in breach of their obligations under the contract or arrangement.
termination fee: see rule 71.
termination information statement: see subrule 74(5).
trade has the same meaning as in the Basin Plan 2012.
Note: See subsections 1.07(2) and (3) of the Basin Plan 2012.
Note 1: Section 146 of the Act provides that if the words ‘civil penalty’ and one or more amounts in penalty units (for example, ‘Civil Penalty: 200 penalty units’) are set out at the foot of a provision in the rules, the provision is a civil penalty provision for the purposes of the Act (see Division 4 of Part 8 of the Act).
Note: Subsection 147(3) of the Act provides that the pecuniary penalty for a contravention of a civil penalty provision must not exceed:
(a) if the wrongdoer is an individual—the relevant amount specified for the civil penalty provision; or
(b) otherwise—an amount equal to 5 times the amount of the relevant amount specified for the civil penalty provision.
Note 2: Penalty unit is defined in section 4AA of the Crimes Act 1914.
(2) A reference in these Rules to a water access entitlement includes a reference to a perpetual or ongoing entitlement, by or under a law of a State, to a share of the Basin water resources as if the entitlement were a water access entitlement.
(3) In these Rules, where an infrastructure operator is required to give a copy of a document, such as its schedule of charges, to its customers:
(a) the relevant document may be given to any customer in electronic form; and
(b) the document may be sent in different forms, or by different mediums, to different customers; and
(c) if the document is sent by post or an electronic medium, it is taken to be given on the day that it is posted or otherwise sent.
Note: Example: The relevant document may be provided by fax, email or text message, including by attaching the document to an email or referring, in an email or text message, the customer to a website where the document can be found.
5 Member owned operator
For the purposes of these Rules, an infrastructure operator is a member owned operator if the majority of its customers are related customers.
6 Related customer
In these Rules, a customer of an infrastructure operator is a related customer in relation to that infrastructure operator if:
(a) the customer is a beneficiary of a trust of which the infrastructure operator is a trustee; or
(b) where the infrastructure operator is a company within the meaning of the Corporations Act 2001, the customer is—
(i) a related body corporate within the meaning of that Act in relation to the infrastructure operator; or
(ii) a member of the company; or
(c) where the infrastructure operator is a body corporate incorporated under a law of a State or of the Commonwealth (other than the Corporations Act 2001), the customer is a member of the body corporate; or
(d) the customer has any other legal or equitable interest in the infrastructure operator.
6A Transfer or assignment of right of access does not constitute termination or surrender
To avoid doubt, a person who trades or assigns a right of access, or part of the right, to another person does not terminate or surrender the right, or part of the right, for the purposes of these Rules.
Note: This provision clarifies the effect of rules 70 and 71, which deal with circumstances in which termination fees are permitted. Trade has the same meaning as subsections 1.07(2) and (3) of the Basin Plan 2012—see subrule 3(1).
Part 2—Conditions on infrastructure charges and planning and management charges, and exemptions relating to certain contracts
7 Conditions applying to infrastructure charges and planning and management charges
Charges must be in accordance with, or exempt from appearing in, a schedule of charges
(1) A person must not levy an infrastructure charge or a planning and management charge unless the charge is:
(a) specified, for the circumstances in which it is levied, in a schedule of charges that is in effect for the person at the relevant time; or
(b) covered by subrule 11(7) (which deals with certain infrastructure charges).
Civil penalty: 200 penalty units.
Relevant time
(2) For an infrastructure charge, the relevant time is the time when the infrastructure services that gave rise to the charge were provided.
(3) For a planning and management charge, the relevant time is the time when the circumstances set out in the schedule of charges for incurring the charge are met.
Effect of retrospective provisions in a schedule of charges
(4) Paragraph (1)(a) is taken to be satisfied if:
(a) the charge is specified in a schedule of charges that came into effect for the person later than the relevant time; and
(b) the charge is specified as applying at the relevant time.
Note: Retrospective application of charges may occur if subrule 11(3) or (4) or 12(3) applies.
8 Additional conditions applying to Part 6 and 7 operators
(2) Subject to rules 33 and 39 and Division 4 of Part 6, a Part 6 operator that has not been exempted under rule 23C must not, after the regulatory start date for the operator, levy an infrastructure charge relating to an infrastructure service provided by the operator to a customer unless:
(a) the operator’s infrastructure charges have been determined or approved in accordance with:
(i) Division 2 of Part 6; and
(ii) except in the case of the first year of a regulatory period—Division 3 of Part 6; and
(b) the infrastructure charge for that infrastructure service does not exceed the charge for that infrastructure service determined or approved in accordance with Division 2 or 3 of Part 6, as applicable.
Civil penalty: 200 penalty units.
(3) Except as expressly authorised by these Rules, a Part 7 operator must not, after the application period for the operator, levy an infrastructure charge relating to an infrastructure service provided by the operator to a customer unless:
(a) the operator’s infrastructure charges have been approved or determined in accordance with Part 7; and
(b) the infrastructure charge for that infrastructure service does not exceed the maximum charge for that infrastructure service approved or determined in accordance with Part 7.
Civil penalty: 200 penalty units
9 Exemption relating to certain contracts
(1) If:
(a) an infrastructure operator proposes to enter into a contract in writing for the provision of infrastructure services to a customer that specifies the infrastructure charges that will apply (whether directly or by specifying a formula by which they will be determined); and
(b) either:
(i) the customer believes, on reasonable grounds, that disclosure of the details of those charges would result in a material financial loss for, or material detriment to, the customer; or
(ii) the operator believes, on reasonable grounds, that disclosure of the details of those charges would result in a material financial loss for, or material detriment to, the operator;
the operator or the customer, or both the operator and customer, may apply in writing to the ACCC for an exemption from the requirement under rule 11 that the operator include the charges in its schedule of charges.
(2) An application must:
(a) be made before the contract is entered into; and
(b) include the reasons for the belief referred to in subparagraph (1)(b)(i) or (ii), as applicable.
(3) Where:
(a) the infrastructure operator proposes to enter into contracts in identical terms with more than one customer; and
(b) subparagraph (1)(b)(i) or (ii) applies in relation to each customer;
the applications may be combined in a single application.
Note: The combined application will need to specify each customer in relation to whom the exemption is applied for, and provide reasons for the belief referred to in subparagraph (1)(b)(i) or (ii) in relation to each customer.
(5) Before the ACCC makes a decision in relation to an application under this rule, the ACCC may, in writing, request the infrastructure operator or the customer to give the ACCC further information relating to the application within a period specified by the ACCC.
(6) The ACCC must, within 30 business days after receiving an application, grant, or refuse to grant, the exemption.
(7) In calculating the period of 30 business days referred to in subrule (6), disregard, if the ACCC has requested further information under subrule (5)—a day during any part of which the request, or any part of the request, remains unfulfilled.
(8) If the ACCC:
(a) is unable to make a decision within the period of 30 business days referred to in subrule (6) or, if that period is extended or further extended, that period as extended; and
(b) within that period, gives written notice to the applicants, or applicant, explaining why the ACCC has been unable to make the decision within that period:
that period is extended, or further extended, by a period of 10 business days.
(9) The ACCC must refuse to grant the exemption if it is not satisfied that disclosure of details of the infrastructure charges under the proposed contract would have a material financial loss for, or material detriment to, the infrastructure operator or the customer.
(10) The ACCC must give notice in writing of its decision on an application under this rule to the customer and infrastructure operator and, if it refuses to grant the exemption, must include in the notice the reasons for its refusal.
(11) If the ACCC has not either granted, or refused to grant, an exemption sought in an application under this rule within the period of 30 business days, or within that period as extended or further extended under subrule (8), after receipt of the application, the exemption is to be taken to have been granted at the expiration of that period.
(12) If the ACCC grants an exemption under this rule, the ACCC must, subject to rule 55, publish on the ACCC’s website a notice to the effect that the exemption has been granted.
(13) If, under this rule, an exemption is granted in respect of a contract, or proposed contract:
(a) the operator must not include the infrastructure charges under the contract in its schedule of charges; and
(b) if the ACCC is aware that an exemption is granted under this rule, the ACCC must not include those infrastructure charges in any matter that it publishes on its website.
(13A) Despite subrule (13), if the ACCC grants an exemption under this rule in relation to an application made on or after 1 July 2020, the infrastructure operator must, within 12 months after the day on which the exemption is granted, include the following information in its schedule of charges:
(a) a statement that the exemption has been granted under this rule;
(b) the name of the customer or customers;
(c) the time period of the contract or contracts;
(d) the infrastructure service to which the charge exempt from disclosure relates.
(14) In this rule:
customer also includes prospective customer, where relevant.
9A Infrastructure operator to pass through certain charges
Network operation charges
(1) If an infrastructure operator incurs network operation charges, the operator may recover the charges from its customers by means of one or more separate charges or as a component of general charges levied on customers.
(2) If an infrastructure operator levies separate charges under subrule (1), the separate charges must not recover in total more than the total amount of the network operation charges.
Civil penalty: 200 penalty units.
Ancillary charges
(3) If an infrastructure operator incurs ancillary charges, the operator must recover the charges from its customers by means of one or more separate charges in accordance with this rule.
Civil penalty: 200 penalty units.
(4) The charges levied under subrule (3) must, as far as practicable, recover the same total amount as the ancillary charges.
(5) A charge levied under subrule (3) must not be levied on the basis of the number of units of water delivery right or water drainage right held.
(6) A charge levied under subrule (3) must:
(a) as far as practicable—be levied on the same basis as the ancillary charges that are being recovered through it; and
(b) where that is not practicable—be levied on a basis that is reasonably similar to the basis on which the ancillary charges that are being recovered through it are levied.
Note: Example: A volumetric charge incurred by an operator in relation to the water access entitlement held by the operator should be recovered through similar charges on its customers’ irrigation rights.
(7) Where the ancillary charge being recovered by a charge levied under subrule (3) is incurred as a direct result of the actions of a particular customer or customers, the charge under subrule (3) must, as far as practicable, be levied only on that customer or those customers.
3‑month period for adjustment of charges
(8) However, if:
(a) any separate charges levied under subrule (1) or (3), as set out in the operator’s current schedule of charges, satisfy the requirements of this rule; and
(b) there is a change in circumstances that would mean that the charges no longer satisfy those requirements;
the charges may continue to be levied in accordance with the current schedule of charges for a period of 3 months after the day on which the change in circumstances occurs.
Note: Example: The amounts of several ancillary charges incurred by an infrastructure operator increase due to another infrastructure operator adopting a new schedule of charges, which has the effect that the charges previously levied by the operator to recover ancillary charges no longer recover the same total amount of all ancillary charges.
(9) In this rule:
ancillary charges means any infrastructure charges or planning and management charges levied on an infrastructure operator (taking account of any discounts) that are not network operation charges.
network operation charges means infrastructure charges and planning and management charges levied on an infrastructure operator (taking account of any discounts) on the basis of:
(a) water access rights held or used by the operator specifically for the purpose of meeting distribution losses; or
(b) infrastructure used by the operator to extract water from a watercourse or discharge water to a watercourse in the course of providing a service to the operator’s customers.
Note: Example: Charges levied on off‑take works used by the operator to extract water from or deliver water to a natural watercourse.
Part 3—Restriction of differing infrastructure charges for same infrastructure service
10 Restriction of certain infrastructure charges
A member owned operator must not, in specifying the infrastructure charges in relation to an infrastructure service of the same class, specify different infrastructure charges payable for:
(a) an infrastructure service provided to a customer that holds an irrigation right against the member owned operator; and
(b) an infrastructure service provided to a customer that does not hold an irrigation right against the member owned operator:
if the difference between the amount of the charge referred to in paragraph (b) and the amount of the charge referred to in paragraph (a) is more than the difference between the actual costs necessarily incurred in providing each of those infrastructure services.
Civil penalty: 200 penalty units.
Part 4—Schedule of charges
11 Requirements for a schedule of charges—infrastructure operator
(1) An infrastructure operator must adopt a schedule of charges that:
(a) sets out its infrastructure charges and planning and management charges in accordance with this rule and rule 13; and
(b) sets the date on which the schedule of charges comes into effect for the operator, which must not be earlier than the date of adoption.
Note 1: In order for an infrastructure operator to levy a charge (other than an exempt charge or other charge listed in subrule (7)), the charge must be in a schedule of charges that is in effect for the infrastructure operator at the relevant time—see rule 7.
Note 2: To come into effect, a schedule of charges must be adopted in accordance with this rule and include the information set out in rule 13. It must be published and distributed in accordance with rule 15. It remains in effect until a replacement schedule comes into effect—see subrule 11(5).
Note 3: For paragraph (b), the date is set under item 4 of the table in rule 13.
When individual charges may apply
(2) The period during which a charge applies (the charge application period for the charge) is the period that the schedule of charges is in effect for the person who levies the charge, unless a different charge application period is specified in the schedule of charges. Subject to subrules (3) and (4), the charge application period must not begin earlier than the date on which the schedule of charges comes into effect.
(3) If:
(a) an infrastructure charge or a planning and management charge in the schedule of charges is required to be determined or approved by another person who is a State Agency or the ACCC; and
(b) the determination or approval of the charges includes provisions relating to the dates when the charge applies:
any specification of the charge application period for the charge under subrule (2) must be in accordance with those provisions of the determination or approval.
(4) If the schedule of charges that is adopted differs from the schedule of charges that it replaces only in relation to charges that are:
(a) separate charges levied under subrule 9A(1); or
(b) charges levied under subrule 9A(3);
such a charge may be specified, under subrule (2), as applying not earlier than the date of application of the network operation charge or ancillary charge that caused the change in the charge.
Replacing one schedule of charges with another
(5) The schedule of charges ceases to be in effect for the infrastructure operator when another schedule of charges that has been adopted by the infrastructure operator comes into effect.
Schedule of charges must comply with rule 13
(6) Subject to subrules (7) and (8), the infrastructure operator contravenes this subrule if the schedule of charges does not include:
(a) for each infrastructure charge set out in the schedule—the information specified in items 1 and 2 of the table in rule 13; and
(b) for each planning and management charge set out in the schedule—the information specified in items 1 and 3 of that table; and
(c) the information specified in item 4 of that table.
Civil penalty: 200 penalty units.
Charges for which information is not required
(7) The schedule of charges need not include the following:
(a) for a charge in relation to which an exemption has been granted under rule 9—details of the charge;
(b) for a discount on an infrastructure charge that is provided to an individual customer or customers for reasons of the customers’ hardship (for example, a natural disaster), or in recognition of a service disruption experienced by the customer (for example, a temporary channel closure)—the amount of the discount or any other information relating to that discount;
(c) for an infrastructure charge levied by the infrastructure operator in accordance with rule 9A to recover the amount of any infrastructure charge or planning and management charge incurred (but not determined) by the operator in relation to a transaction undertaken on behalf of a customer, such as a trade application charge—details of the charge;
(d) the details of an infrastructure charge to be levied in circumstances such that:
(i) the nature of the service is known, but:
(A) the information required for subparagraph (c)(i) of item 1 of the table in rule 13 cannot reasonably be determined; and
(B) subparagraph (c)(ii) of that item does not apply; or
(ii) the nature of the service is not known sufficiently early for it to be practicable to include the charge in the schedule of charges.
Note: For paragraph (a), information relating to the exemption is required—see subrule 9(13A).
(8) However, if an infrastructure operator levies an infrastructure charge for an infrastructure service to which paragraph (7)(d) applies, the operator must adopt a new schedule of charges that includes the details of that charge within 12 months after the infrastructure charge is levied.
12 Requirements for a schedule of charges—other person
(1) A person, other than an infrastructure operator, who determines or levies planning and management charges, or on whose behalf such charges are collected, may adopt a schedule of charges that:
(a) sets out the planning and management charges that may be levied, in accordance with this rule and rule 13; and
(b) sets the date on which the schedule of charges comes into effect for the person who levies the charges, which must not be earlier than the date of adoption.
Note 1: In order for a person other than an infrastructure operator to levy a planning or management charge, the charge must be in a schedule of charges that is in effect for the person at the relevant time—see rule 7.
Note 2: To come into effect, a schedule of charges must be adopted in accordance with this rule and include the information set out in rule 13. It must be published in accordance with rule 15. It remains in effect until a replacement schedule comes into effect—see subrule 12(4).
Note 3: For paragraph (b), the date is set under item 4 of the table in rule 13.
When individual charges may apply
(2) The period during which an individual charge in a schedule of charges applies (the charge application period for the charge) is the period that the schedule of charges is in effect for the person who levies the charge, unless a different charge application period is specified in the schedule of charges. Subject to subrule (3), the charge application period must not begin earlier than the date on which the schedule of charges comes into effect.
(3) If:
(a) the person who determines the charges:
(i) is not the person who levies the charges; and
(ii) is a State Agency; and
(b) the determination of the charges includes provisions relating to the dates when the charges apply;
any specification of the charge application period for the charge under subrule (2) must be in accordance with those provisions of the determination.
Replacing one schedule with another
(4) The schedule of charges ceases to be in effect for the person who levies the charges when another schedule of charges that has been adopted in accordance with this rule comes into effect for the person.
Schedule must comply with rule 13
(5) The person who adopts the schedule of charges contravenes this subrule if the schedule of charges does not include:
(a) the information specified in items 1 and 3 of the table in rule 13 in relation to each planning and management charge; and
(b) the information specified in item 4 of that table.
Note: Section 12 of the Act limits the types of agencies of the Commonwealth or of a State that can be liable to be subject to civil proceedings for a civil penalty or given an infringement notice, and exempts the Crown entirely.
Civil penalty: 200 penalty units.
13 Content of schedule of charges
A schedule of charges adopted under subrule 11(1) or 12(1) must include the applicable information set out in the following table.
Item
Kind of charge
Information
1
For each infrastructure charge or planning and management charge
The following:(a) the name of the charge and, if the charge application period for the charge is not the same as the period that the schedule of charges is in effect for the person who levies the charge, its charge application period;(b) the circumstances in which the charge is payable, including, if applicable, the following:(i) the water resource, catchment or district, and the water resource plan or other plan, to which the charge relates;(ii) the class of person required to pay the charge;(iii) the class of water access right, irrigation right or water delivery right to which the charge relates;(c) either:(i) the amount of the charge or details of rates and all other details necessary to determine that amount; or(ii) for a charge that reflects the costs of physically connecting, or physically disconnecting a customer from the operator’s water service infrastructure—a statement that the charge will be determined at the time of the connection or disconnection;(d) details of any general discount or surcharge, including the circumstances under which the discount or surcharge applies (for example, a discount for early payment);(e) when the charge is payable, and if payable by instalments, the number of instalments and intervals at which the charge is payable;(f) if the charge is not determined by the operator or person adopting the schedule of charges—who determined the charge;(g) if the charge is not payable to the operator or person adopting the schedule of charges:(i) the name of the person to whom the charge is payable; and(ii) the name of the agency or person for whom the charge is being collected
2
For each infrastructure charge
The following:(a) a description of the infrastructure service to which the charge relates;(b) if the charge is covered by an exemption under rule 9—the information required to be included in the schedule by subrule 9(13A)
3
For each planning and management charge
The legislative, contractual or other authority for the charge
4
General information
The following:(a) the date on which the schedule of charges comes into effect (or will be taken to have come into effect) and a statement that this is the date from which each individual charge applies, unless a different date of application is specified;(b) a statement setting out the following:(i) the process used to determine the infrastructure charges or planning and management charges and how a person may participate in that process;(ii) how a person can make an enquiry or resolve a dispute in relation to regulated water charges;(iii) any generally available discounts, surcharges or hardship policies, if applicable;(iv) how the infrastructure operator has determined or calculated the infrastructure charges it levies to recover charges in accordance with rule 9A, if applicable;(v) any other information that is reasonably necessary or desirable to explain the charges to the customer
15 Distributing and publishing schedule of charges
Note: Documents may be given in electronic form and documents posted or sent electronically are taken to be given on the day they are posted or sent—see subrule 3(3).
Infrastructure operator—provision of schedule of charges to new customer or on request
(1) If a person becomes a customer of an infrastructure operator, the operator must give the person, within 10 business days after the day the operator first receives notice, or otherwise becomes aware, that the person is a customer, a copy of:
(a) its current schedule of charges; and
(b) if a schedule of charges that is not yet in effect has been given to existing customers in accordance with paragraph (3)(a) or (4)(a)—the new schedule of charges.
Civil penalty: 200 penalty units.
(2) If a person gives an infrastructure operator a request in writing for details of its current infrastructure charges for infrastructure services provided to its customers, the operator must give the person, within 10 business days after the day the request is received, a copy of:
(a) its current schedule of charges; or
(b) if a new schedule of charges has been adopted but is not yet in effect—the new schedule of charges.
Civil penalty: 200 penalty units.
Infrastructure operator—adoption of new schedule of charges
(3) If an infrastructure operator that satisfies subparagraph 23(b)(i) or (ii) (whether or not its infrastructure charges are determined or approved by a single State Agency under a law of the State) adopts a schedule of charges under subrule 11(1):
(a) the operator must give a copy of the schedule of charges to each of its customers at least 25 business days before the day the schedule of charges comes into effect; and
(b) if the operator has a website—the operator must publish the schedule of charges on a publicly accessible part of the operator’s website at least 25 business days before the day the schedule of charges comes into effect.
Civil penalty: 200 penalty units.
(4) If an infrastructure operator of any other kind adopts a schedule of charges under subrule 11(1):
(a) the operator must give a copy of the schedule of charges to each of its customers at least 10 business days before the day the schedule of charges comes into effect; and
(b) if the operator has a website—the operator must publish the schedule of charges on a publicly accessible part of the operator’s website at least 10 business days before the day the schedule of charges comes into effect.
Civil penalty: 200 penalty units.
Infrastructure operator—adoption of new schedule of charges updating rule 9A charges only
(5) For subrules (3) and (4), if the schedule of charges is one to which subrule 11(4) applies, the infrastructure operator:
(a) is taken to comply with paragraphs (3)(a) and (4)(a) if it gives a copy of the schedule of charges, or a notice setting out the details of the changes, to each customer with the next invoice it gives to the customer after adopting the schedule of charges; and
(b) is taken to comply with paragraphs (3)(b) and (4)(b) if it publishes the schedule of charges on a publicly accessible part of the operator’s website as soon as practicable after adopting the schedule of charges.
Person other than an infrastructure operator—adoption of schedule of charges under rule 12
(6) A person who adopts a schedule of charges under subrule 12(1) must, at least 25 business days before the day the schedule of charges comes into effect for the person who levies the charges:
(a) cause the schedule of charges to be published on a publicly accessible part of the person’s website, or a publicly accessible part of the website of:
(i) the person who determined the charge; or
(ii) the agency or person to whom the charge is payable; or
(iii) the agency or person on whose behalf the charges are collected; and
(b) ensure that the schedule of charges is made available at its principal place of business, or the principal place of business of:
(i) the person who determined the charge; or
(ii) the agency or person to whom the charge is payable; or
(iii) the agency or person on whose behalf the charges are collected.
Note: Section 12 of the Act limits the types of agencies of the Commonwealth or of a State that can be liable to be subject to civil proceedings for a civil penalty or given an infringement notice, and exempts the Crown entirely.
Civil penalty: 200 penalty units.
Where publication or distribution delayed by determination or approval requirements
(7) If:
(a) a schedule of charges adopted by a person includes charges that are required to be determined or approved by a State Agency or the ACCC; and
(b) the timing of the determination or approval of the charges prevents the person from performing the actions required by subrule (3), (4) or (6) within the specified times;
the person is taken to comply with the relevant subrule if the person performs the required actions as soon as practicable after the charges are determined or approved.
Part 6—Approval or determination of infrastructure charges of Part 6 operators
Division 1—General
23 Part 6 operators
An infrastructure operator is a Part 6 operator if:
(a) the operator is not required to have all its infrastructure charges determined or approved by a single State Agency under a law of the State in a way that is consistent with paragraph 29(2)(b); and
(b) the operator levies an infrastructure charge in relation to either:
(i) a bulk water service in respect of water access rights; or
(ii) infrastructure services in relation to the storage or delivery of water that is necessary to give effect to an arrangement for the sharing of water between more than one Basin State.
Note: Subparagraph (b)(i) would not normally apply to an off‑river infrastructure operator.
23A Part 6 operators and prospective Part 6 operators must notify ACCC
If an infrastructure operator:
(a) becomes aware that it has become a Part 6 operator; or
(b) becomes aware of a matter that may result in the operator becoming a Part 6 operator on a specified date;
the operator must notify the ACCC of that fact, or that matter, as soon as practicable after becoming so aware.
23B ACCC must notify Part 6 operators and prospective Part 6 operators of its view
If the ACCC:
(a) receives a notice under rule 23A; or
(b) otherwise becomes aware that an infrastructure operator is a Part 6 operator, or is likely to become one from a specified date;
the ACCC must:
(c) form a view as to whether the infrastructure operator is a Part 6 operator, or will become a Part 6 operator from a specified date; and
(d) notify the infrastructure operator of the ACCC’s view; and
(e) if the ACCC is of the view that the operator is, or will be, a Part 6 operator—advise the operator that the ACCC will decide whether the operator should be granted an exemption under rule 23C.
23C ACCC may exempt a Part 6 operator from requirements in this Part
(1) An infrastructure operator that is, or expects to become, a Part 6 operator may apply to the ACCC for an exemption under this rule.
(2) The ACCC may grant to an infrastructure operator a written exemption from the operation of the requirements of Divisions 2, 3 and 4:
(a) following an application made by an infrastructure operator; or
(b) if it has given the infrastructure operator a notice under rule 23B or paragraph 81(12)(b) that it is of the view that the operator is, or will be, a Part 6 operator.
(3) The ACCC may on its own initiative, by written notice, extend the period of an existing exemption if the ACCC continues to be satisfied as to the matters specified in subrule (4).
(4) The ACCC may grant the exemption only if the ACCC is satisfied that the application of those requirements would not materially contribute to the achievement of the Basin water charging objectives and principles set out in Schedule 2 to the Act.
(5) In making the decision, the ACCC must have regard to the following matters:
(a) the total volume of water access rights in relation to which bulk water services are provided by the operator, if applicable;
(b) the total volume of water subject to water sharing arrangements in relation to which the operator provides infrastructure services, if applicable;
(c) the infrastructure services provided by the operator;
(d) any preferences expressed by the operator’s customers to the ACCC;
(e) any views expressed by a State Agency to the ACCC;
(f) whether the relevant law of a State is being transitioned so that the operator’s infrastructure charges will at a future date be determined or approved by a single State Agency in a way that is consistent with paragraph 29(2)(b);
(g) the proportion of the infrastructure operator’s revenue to be recovered from infrastructure charges;
(h) any other matters that the ACCC considers relevant.
Note: For paragraph (f), once that is the case, paragraph 23(a) will cease to apply to the operator, and the operator will no longer be a Part 6 operator.
(6) The exemption may be:
(a) for a specified period; or
(b) for an unspecified period but subject to review at specified times.
(7) Before making the decision, the ACCC may undertake public consultation in relation to its proposed decision.
(8) Before making the decision, the ACCC may, in writing, request the operator to give the ACCC further information within a period specified by the ACCC in that request.
(9) If the ACCC fails to make a decision under this rule within 3 months after the day on which it received the application, or gave the notice under rule 23B or paragraph 81(12)(b), the ACCC is taken to have decided to grant the operator an exemption from the operation of Divisions 2, 3 and 4 for 3 years from the expiry of that 3 month period.
(10) If the ACCC decides not to grant the operator an exemption, the ACCC must:
(a) invite the views of the operator on the appropriate date from which Divisions 2, 3 and 4 should apply to the operator; and
(b) set that date.
(11) The date set in subrule (10) is the regulatory start date for the operator.
Note: The regulatory start date may be changed by the operation of subrule 30(3).
(12) The ACCC must notify the infrastructure operator as soon as practicable of:
(a) a decision under this rule (including a decision taken to have been made under subrule (9)); and
(b) if the ACCC does not grant the exemption—the regulatory start date for the operator.
23D Ceasing to be a Part 6 operator
(1) If an infrastructure operator that is a Part 6 operator:
(a) ceases to be a Part 6 operator; or
(b) becomes aware of a matter that may result in the operator ceasing to be a Part 6 operator on a specified date;
the operator must notify the ACCC of that fact, or that matter, as soon as practicable after becoming so aware.
(2) If a Part 6 operator ceases to be a Part 6 operator during a regulatory period for the operator, these Rules apply to the operator as if the operator continued to be a Part 6 operator for the remainder of that regulatory period.
Note 1: Rule 25 will not have any application to an operator that will not be a Part 6 operator after its current regulatory period.
Note 2: See also rule 81 for an operator that was a Part 6 operator immediately before 1 July 2020.
Division 2—Approval or determination of infrastructure charges for each year of each regulatory period
24 Changing the length of a regulatory period
(1) The ACCC may set a new length, not less than 3 years and not more than 5 years, for:
(a) a specified future regulatory period of a Part 6 operator (by changing the end date of the specified future regulatory period); or
(b) all the regulatory periods following a specified future regulatory period of a Part 6 operator;
if:
(c) it has consulted the operator or received a request from the operator under subrule (2); and
(d) it is satisfied that the change is appropriate in the circumstances.
(2) If:
(a) a Part 6 operator is also a supplier of urban water services or infrastructure services in relation to non‑Basin water resources, the charges for which are determined by an agency of a State under a law of the State; and
(b) the charges are determined in respect of periods (the agency periods) that are not aligned with the regulatory periods of the operator; and
(c) the operator requests the ACCC to approve changes to its future regulatory periods in accordance with subrule (1) in order to align the future regulatory periods with the agency periods;
the ACCC must consider whether the changes requested are appropriate in the circumstances.
(3) Subrule (1) does not apply in relation to a regulatory period for which a draft determination or approval has been published under rule 28.
(4) If a period length approved under this rule is not a whole number of years, the remainder after all the whole years are completed is treated as a year for the purposes of this Division and Divisions 3 and 4.
24A Application for determination or approval of charges—first regulatory period
(1) This rule applies to an infrastructure operator that:
(a) has received a notice under rule 23B stating that the ACCC is of the view that the operator is, or will be, a Part 6 operator; and
(b) was subsequently refused an exemption under rule 23C, or was given an exemption that has now expired; and
(c) has had its regulatory start date set under subrule 23C(10); and
(d) proposes to levy infrastructure charges during the first regulatory period for the operator.
Note: The process in this provision is for the initial approval of charges. After this process is completed, rule 25 or Division 3 as appropriate will apply.
(2) The infrastructure operator must, at least 15 months before the regulatory start date for the operator, apply in writing to the ACCC for determination or approval of its infrastructure charges under this Division in respect of each year of the first regulatory period for the operator.
(3) The first regulatory period is:
(a) if the ACCC has set a length for the operator’s regulatory period under rule 24—the period of that length beginning on the regulatory start date; or
(b) otherwise—the period of 3 years beginning on the regulatory start date.
(4) The application must include the information referred to in Schedule 1.
25 Application for determination or approval of charges—subsequent regulatory periods
(1) A Part 6 operator that proposes to levy infrastructure charges in a regulatory period (a subsequent regulatory period) after the first regulatory period must apply in writing to the ACCC for determination or approval of its infrastructure charges under this Division in respect of each year of the subsequent regulatory period.
(2) The application must be made no later than 15 months before the start of the subsequent regulatory period in respect of which the determination or approval relates.
(3) The application must include the information referred to in Schedule 1.
26 ACCC may request further information
Before the ACCC makes a decision in relation to the infrastructure charges of a Part 6 operator that makes an application under this Division, the ACCC may, in writing, request the operator to give the ACCC further information relating to the application within a period specified by the ACCC.
27 ACCC must publish application
After receiving an application under this Division, the ACCC must publish on the ACCC’s website a notice which includes, subject to Division 1 of Part 8:
(a) a copy of the application;
(b) a copy of any further information received in response to a request under rule 26;
(c) an invitation to interested parties to make submissions to the ACCC in relation to the application before a date specified in the notice.
28 ACCC to consider submissions and publish draft approval or determination
The ACCC, after considering submissions received before the date specified in the notice published under rule 27 in relation to an application under this Division:
(a) must prepare a draft of an approval or determination of the Part 6 operator’s infrastructure charges in respect of the first and each subsequent year of the relevant regulatory period; and
(b) must publish on its website a notice which, subject to Division 1 of Part 8, includes:
(i) the draft approval or determination; and
(ii) the reasons for its decisions; and
(iii) an invitation to interested parties to make submissions to the ACCC in relation to the draft approval or determination before a date specified in the notice.
29 ACCC to determine or approve infrastructure charges
(1) The ACCC, after considering submissions received before the date specified in the notice published under paragraph 28 (b), must, subject to subrule (2), determine or approve the infrastructure charges set out in the application under this Division.
(2) The ACCC must not approve the infrastructure charges set out in an application under this Division unless the ACCC is satisfied:
(a) that the determination of the Part 6 operator’s regulatory asset base used to calculate those charges (where relevant) is in accordance with Schedule 2; and
(b) that the forecast revenue from the charges is reasonably likely to meet, but not materially exceed, the prudent and efficient costs of providing the infrastructure services, less:
(i) any government contributions related to the provision of those infrastructure services; and
(ii) any amount reflecting a direction by a government forgoing a return on its share of capital in an infrastructure operator; and
(iii) any revenue (other than from infrastructure charges) derived from the water service infrastructure used to provide infrastructure services; and
(c) that the infrastructure charges contained in the application are otherwise consistent with the requirements in other provisions of these Rules.
Note: There are relevant provisions in other Parts as well as in Part 6.
(3) If the ACCC is not satisfied as to the matters referred to in subrule (2), the ACCC must determine the infrastructure charges on the basis of the Part 6 operator’s regulatory asset base determined in accordance with Schedule 2 (where relevant) and so as to be satisfied as to the matters referred to in paragraphs (2)(b) and (c).
(3A) If the ACCC is satisfied that:
(a) there is sufficient uncertainty about the cost, timing, necessity, likelihood or feasibility of a capital expenditure project proposed by the Part 6 operator in its application; and
(b) the inclusion of the proposed capital expenditure project would have a material impact on the infrastructure charges to be determined or approved;
the infrastructure charges must be determined on the basis that funding the capital expenditure project would not be a prudent and efficient cost of providing the infrastructure services.
Note: The ACCC may otherwise assess the costs relating to proposed capital expenditure as not being prudent and efficient for the purposes of paragraph 29(2)(b)—see subrule 31(1A) and Division 4.
(4) In determining or approving infrastructure charges under this rule, the ACCC must have regard to whether the infrastructure charges would contribute to achieving the Basin water charging objectives and principles set out in Schedule 2 of the Act.
30 Period within which ACCC must determine or approve infrastructure charges
(1) The ACCC must, within the period ending on the day 30 business days before the start of the regulatory period in respect of which an application under rule 24A or 25 is made, determine or approve the infrastructure charges set out in the application and give written notice of its decision in accordance with rule 31.
(2) The period for the making of the decision under subrule (1) is extended, or further extended, by a period of 3 months if the ACCC, within the period or the extended period (as applicable):
(a) is unable to make a decision; and
(b) gives written notice to the applicant explaining why it has been unable to make the decision within the period.
(3) If the application relates to the first regulatory period for the operator, and the period for the making of the decision under subrule (1) is extended or further extended—the regulatory start date for the operator is changed to the day 30 business days after the end of the period as extended or further extended.
(4) As soon as practicable after the ACCC gives a notice under subrule (2), the ACCC must publish the notice on the ACCC’s website.
31 ACCC to give notice to Part 6 operator of its determination or approval and publish the decision
(1) The ACCC must give notice in writing to the Part 6 operator of the ACCC’s determination or approval, as the case requires, under rule 29 of the operator’s infrastructure charges.
(1A) If the circumstances in subrule 29(3A) apply, the notice may also specify a capital expenditure project as a contingent project and set out the conditions that the operator must satisfy in relation to the contingent project before the operator may apply for a variation of a determination or approval of its infrastructure charges under Division 4.
(2) The ACCC must, on the day on which it gives notice to the Part 6 operator under subrule (1), publish the notice and the reasons for its decision on the ACCC’s website.
32 Effect of determination or approval under this Division
A determination or approval by the ACCC of infrastructure charges under this Division has effect as a determination or approval of infrastructure charges:
(a) in respect of the first year of the regulatory period to which the application relates; and
(b) in respect of each subsequent year of the regulatory period, subject to review and further determination or approval in accordance with Division 3.
33 Transitional provision for temporary continuation of existing charges
(3) If the ACCC has not approved or determined the infrastructure charges of a Part 6 operator in respect of the first and each subsequent year of a regulatory period before the end of the preceding regulatory period, the operator may levy fees and charges in respect of the first year of the regulatory period that do not exceed the infrastructure charges for the last year of the preceding regulatory period approved or determined under Division 3 (or, if varied under Division 4, as so varied) until, and only until:
(a) the expiration of the specified period; or
(b) the ACCC approves or determines the infrastructure charges in accordance with this Division:
whichever first occurs.
(4) In this rule, specified period means the period ending on the later of:
(a) the day 6 months after the end of the preceding regulatory period; and
(b) if the period of 30 business days before the start of the regulatory period referred to in subrule 30(1) is extended or further extended under subrule 30(2)—the day when that period as extended or further extended ends.
Division 3—Annual review of infrastructure charges for second or subsequent year of a regulatory period
34 Application by Part 6 operator to ACCC for annual review of infrastructure charges
(1) A Part 6 operator whose infrastructure charges in respect of a regulatory period have been approved or determined under Division 2 and, if varied under Division 4, as so varied, must apply to the ACCC for approval or determination of its infrastructure charges in respect of the second year and each subsequent year of the regulatory period, to be reviewed in accordance with this Division.
(2) An application by a Part 6 operator under subrule (1) must include:
(a) the operator’s forecasts of demand for, or consumption of, infrastructure services for the year to which the application relates; and
(aa) an explanation of why the forecasts are different from those set out in the application made under rule 24A or 25, if applicable; and
(b) the operator’s estimate of demand or consumption during the current year; and
(c) information about how the forecast and estimate were calculated; and
(d) proposed infrastructure charges in respect of the year to which the application relates.
(3) An application must be made no later than 4 months before the start of the year of the regulatory period to which the determination or approval relates.
35 ACCC may request further information
Before the ACCC makes a decision in relation to the infrastructure charges of a Part 6 operator who makes an application under this Division, the ACCC may, in writing, request the operator to give the ACCC further information relating to the application within a period specified by the ACCC.
36 ACCC to publish application and draft approval or determination
After receiving an application under rule 34, the ACCC:
(a) must prepare a draft of an approval or determination of the Part 6 operator’s infrastructure charges in respect of the year to which the application relates; and
(b) must publish on its website a notice which, subject to Division 1 of Part 8, includes:
(i) a copy of the application; and
(ii) a copy of any further information received in response to a request under rule 35; and
(iii) the draft approval or determination; and
(iv) the reasons for its decisions; and
(v) an invitation to interested parties to make submissions to the ACCC in relation to the draft approval or determination before a date specified in the notice.
37 ACCC to approve or determine infrastructure charges
(1) Subject to subrule (2), the ACCC must, within the period ending on the day 30 business days before the start of the year to which the application relates, and after considering any submissions received before the date specified in the notice under paragraph 36(b), determine or approve the infrastructure charges in respect of the year to which the application relates.
(2) The ACCC must not approve infrastructure charges under subrule (1) other than the infrastructure charges approved or determined under Division 2 and, if varied under Division 4, as so varied, in respect of the year to which the application relates except to the extent, if any, that it is reasonably necessary to make variations to those charges having regard to:
(a) the changes in the demand or consumption forecasts set out in the application under rule 34 from those used in the determination or approval of infrastructure charges under Division 2; and
(b) price stability; and
(c) the consistency of the infrastructure charges with the requirements in other provisions of these Rules.
(3) If the ACCC is not satisfied as to the matters referred to in subrule (2), the ACCC must determine the infrastructure charges with such changes as enable the ACCC to be satisfied as to those matters.
(5) If the ACCC:
(a) is unable to make a decision within the period mentioned in subrule (1) or, if that period is extended, the period as extended; and
(b) within that period, gives written notice to the Part 6 operator who made the application under subrule (1) explaining why the ACCC has been unable to make the decision within that period:
that period is extended, or further extended, by a period of one month.
(6) As soon as practicable after the ACCC gives a notice under paragraph (5) (b), the ACCC must publish the notice on the ACCC’s website.
38 Notice of the decision and effect of approval or determination under this Division
(1) The ACCC must give notice in writing to the Part 6 operator of its approval or determination, as the case requires, under rule 37 of the operator’s infrastructure charges under this Division.
(2) The ACCC must, on the day on which it gives notice to the Part 6 operator under subrule (1), publish the notice and the reasons for its decisions on the ACCC’s website.
(3) An approval or determination of an application under this Division has effect as an approval or determination of the infrastructure charges in respect of the year of a regulatory period in respect of which the application was made.
39 Transitional provision for temporary continuation of existing infrastructure charges
(2) If the ACCC has not, under this Division, approved or determined the infrastructure charges of a Part 6 operator in respect of the second or a subsequent year of a regulatory period before the beginning of that year, the operator may levy infrastructure charges in respect of that year that do not exceed the infrastructure charges for that year approved or determined under Division 2 (or, if varied under Division 4, as so varied) until, and only until:
(a) the expiration of the specified period; or
(b) the ACCC approves or determines the infrastructure charges in accordance with this Division:
whichever first occurs.
(3) In this rule, specified period means:
(a) the period ending 3 months after the end of the preceding year of the regulatory period; or
(b) if the period referred to in subrule 37 (1) is extended, or further extended, under subrule 37 (5), the period ending when that period, as extended or further extended, ends:
whichever is the later.
Division 4—Variation of approval or determination
40 Operator may apply for variation of approval or determination in certain circumstances
(1) A Part 6 operator may apply in writing to the ACCC for a variation of the approval or determination under Division 2 or 3 (or, if previously varied under this Division, as so varied) of its infrastructure charges in respect of a regulatory period if:
(a) an event occurs during the regulatory period that materially and adversely affects the operator’s water service infrastructure or otherwise materially and adversely affects the operator’s business; and
(b) for an event other than a taxation event or regulatory event—the operator could not reasonably have foreseen the event.
(2) An application under subrule (1):
(a) must set out details of the event; and
(b) must state the Part 6 operator’s proposals for rectifying the material and adverse effects of the event; and
(c) must state—
(i) the total amount that the Part 6 operator anticipates will be required during the remainder of the regulatory period to rectify those material and adverse effects;
(ii) whether that amount is likely to exceed:
(A) for a taxation event or a regulatory event—1% of the aggregate revenue requirement; and
(B) otherwise—3% of the aggregate revenue requirement; and
(iii) whether it is reasonably likely (in the absence of any reduction of any other expenditure) that the total expenditure during the remaining part of the regulatory period will exceed the total forecast expenditure for that remaining part; and
(d) must demonstrate that the Part 6 operator is not able to reduce its expenditure to avoid the consequences referred to in subparagraphs (c) (ii) and (iii) without materially and adversely affecting the reliability or safety of the operator’s water service infrastructure or the operator’s ability to comply with any relevant regulatory or legislative obligations; and
(e) must set out details of the variation of its infrastructure charges sought by the Part 6 operator.
(3) A Part 6 operator may also apply in writing to the ACCC for a variation of the determination or approval made under Division 2 or 3 (or, if previously varied under this Division, as so varied) if the infrastructure operator is of the view that the conditions specified under subrule 31(1A) in relation to a contingent project have been satisfied.
(4) An application made under subrule (3) must set out:
(a) the reasons for the operator’s view that the conditions in subrule 31(1A) have been satisfied; and
(b) the total amount that the operator anticipates will be required during the remainder of the regulatory period to meet the prudent and efficient costs of delivering the contingent project; and
(c) the proportion of the costs of the contingent project that the operator seeks to recover through infrastructure charges; and
(d) the infrastructure charges the operator is seeking to vary and the amount of that variation.
41 ACCC may request further information
Before the ACCC makes a decision in relation to an application under this Division, the ACCC may, in writing, request the Part 6 operator to give the ACCC further information relating to the application within a period specified by the ACCC.
42 ACCC must publish application
After receiving an application under this Division, the ACCC must publish on the ACCC’s website a notice which, subject to Division 1 of Part 8, includes:
(a) a copy of the application;
(b) a copy of any further information received in response to a request under rule 41.
43 ACCC to decide whether or not to vary its approval or determination
(1) The ACCC must, within 3 months after receiving an application under this Division, decide whether or not to vary its approval or determination of the Part 6 operator’s infrastructure charges.
(2) In calculating the 3‑month period referred to in subrule (1), disregard, if the ACCC has requested further information under rule 41—a day during any part of which the request, or any part of the request, remains unfulfilled.
(3) If the ACCC:
(a) is unable to make a decision within the period of 3 months or, if that period is extended, or further extended, that period as extended; and
(b) within that period, gives written notice to the Part 6 operator who made the application explaining why the ACCC has been unable to make the decision within that period:
that period is extended, or further extended, by a period of one month.
(4) As soon as practicable after the ACCC gives a notice under paragraph (3)(b), the ACCC must publish the notice on the ACCC’s website.
(5) The ACCC must not, in relation to an application made under subrule 40(1), vary a determination or approval of infrastructure charges under this Division unless the ACCC is satisfied:
(a) as to the matters relating to the event referred to in paragraphs 40(1)(a) and (b) as set out in the application; and
(b) that:
(i) the total amount required during the remainder of the regulatory period to rectify the material and adverse effects of the event exceeds:
(A) for a taxation event or a regulatory event—1% of the aggregate revenue requirement;
(B) otherwise—3% of the aggregate revenue requirement; and
(ii) it is reasonably likely that the total expenditure during the remaining part of the regulatory period is likely to exceed the total forecast expenditure for that remaining part; and
(c) that the Part 6 operator has demonstrated that it is not able to reduce the operator’s expenditure to avoid the consequences referred to in paragraph (b) without materially and adversely affecting the reliability or safety of the operator’s water service infrastructure or the operator’s ability to comply with any relevant regulatory or legislative obligations; and
(d) as to the matters set out in paragraphs 29(2)(b) and (c).
(6) The ACCC must not, in relation to an application made under subrule 40(3), vary a determination or approval of infrastructure charges under this Division unless the ACCC is satisfied:
(a) that the conditions specified under subrule 31(1A) have been satisfied; and
(b) that the contingent project is prudent and efficient; and
(c) as to the matters set out in paragraphs 29(2)(b) and (c).
(7) The ACCC must, if varying a determination or approval of infrastructure charges under this rule, decide:
(a) each infrastructure charge to be varied and the amount of the variation; and
(b) the date from which each varied charge will apply, which must not be earlier than the next year of the regulatory period.
43A Variation of determination or approval by ACCC in response to certain regulatory or taxation events
(1) The ACCC may, on its own initiative, vary a determination or approval of an infrastructure operator’s infrastructure charges if it is satisfied that a regulatory event or taxation event provides a benefit to the infrastructure operator of more than 1% of the operator’s aggregate revenue requirement.
(2) Before varying the determination or approval, the ACCC must give the infrastructure operator written notice of the ACCC’s intention to vary the determination or approval.
(3) The notice must:
(a) identify the regulatory event or taxation event giving rise to the intended variation; and
(b) set out the estimated amount for the proposed variation of the operator’s infrastructure charges; and
(c) advise that the operator may respond to the ACCC’s notice within 30 business days after the date of the notice.
(4) The ACCC must not, in relation to an application made under subrule 40(3), vary a determination or approval of infrastructure charges unless the ACCC is satisfied as to the matters set out in paragraphs 29(2)(b) and (c).
(5) The ACCC must, if varying a determination or approval of infrastructure charges under this rule, decide:
(a) each infrastructure charge to be varied and the amount of the variation; and
(b) the date from which each varied charge will apply, which must not be earlier than the next year of the regulatory period.
44 ACCC to give notice of its decision under this Division and publish the decision
(1) The ACCC must give notice in writing to the Part 6 operator of its decision on the variation of the operator’s infrastructure charges under this Division.
(2) The ACCC must, on the day on which it gives notice to the Part 6 operator under subrule (1), publish the notice and the reasons for its decisions on the ACCC’s website, subject to Division 1 of Part 8.
Part 7—Approval or determination of infrastructure charges of Part 7 operators
Division 1—General
45 Part 7 operators
(1) An infrastructure operator becomes a Part 7 operator if:
(a) the operator is not a Part 6 operator; and
(b) the operator is a member owned operator; and
(c) the sum of the maximum volume of water from managed water resources in respect of which the operator provides infrastructure services in relation to all of the following is more than 10 gigalitres:
(i) water access entitlements held by the operator (otherwise than for the purpose of providing infrastructure services to customers who hold water access entitlements to that water);
(ii) water access entitlements held by the customers of the operator;
(iii) water access entitlements held by the owner (not being the operator) of the water service infrastructure operated by the operator; and
(d) the operator has made a distribution to all its related customers at any time after 12 January 2011.
Note: In subrule 45(1) the maximum volume of water refers to that held under water access entitlements.
(1A) If a Part 7 operator makes, or proposes to make, an application for the determination or approval of regulated charges under Division 2, the ACCC must:
(a) invite the views of the operator on the appropriate date from which Division 2 should apply to the operator; and
(b) set that date.
(1B) The date set in subrule (1A) is the regulatory start date for the operator.
(2) For the purposes of this rule, an infrastructure operator:
(a) is to be taken to have made a distribution to all its related customers if it has:
(i) declared a dividend for all its related customers; or
(ii) distributed profits, or any part of its profits, whether in the form of dividends or otherwise, to all its related customers; or
(iii) distributed its reserves, or any part of its reserves, to all its related customers; or
(iv) issued bonus shares to all its related customers; and
(b) is not to be taken to have made a distribution, whether as referred to in paragraph (a) or in any other manner, if the distribution was made without distinction between related customers and other customers.
(3) An infrastructure operator ceases to be a Part 7 operator at the earliest of the following times:
(a) when the operator ceases to be a member owned operator;
(b) when paragraph (1)(c) stops applying to the operator;
(c) upon the expiration of 3 years after the operator last made a distribution to all its related companies;
(d) upon the expiration of 3 years after the regulatory start date for the operator.
(4) An infrastructure operator to whom this Part applies is a Part 7 operator.
Division 2—Approval or determination of infrastructure charges
46 Application by Part 7 operator to ACCC
(1) A Part 7 operator that proposes to levy infrastructure charges after the application period must apply in writing to the ACCC for approval or determination of its infrastructure charges under this Part.
(2) An application under subrule (1) must include the information referred to in Schedule 3.
47 ACCC may request further information
Before the ACCC makes a decision in relation to an application under this Part from a Part 7 operator, the ACCC may, in writing, request the operator to give the ACCC further information relating to the application within a period specified by the ACCC.
48 ACCC to publish application and draft approval or determination
After receiving an application under this Part from a Part 7 operator, the ACCC:
(a) must prepare a draft of an approval or determination of the infrastructure charges set out in the application; and
(b) must publish on the ACCC’s website a notice which, subject to Division 1 of Part 8, includes:
(i) a copy of the application; and
(ii) a copy of any further information received in response to a request under rule 47; and
(iii) the draft approval or determination; and
(iv) the reasons for its decisions; and
(v) an invitation to interested parties to make submissions to the ACCC in relation to the draft approval or determination before a date specified in the notice.
49 ACCC to approve or determine the infrastructure charges
(1) The ACCC, after considering submissions received before the date specified in the notice published under paragraph 48 (b), subject to subrule (2), must approve or determine the infrastructure charges set out in the application under this Part.
(2) The ACCC must not approve infrastructure charges set out in an application under this Part that include a return on investment unless the ACCC is satisfied that the return is commensurate with the commercial risks involved.
(3) If the ACCC is not satisfied as to the matters referred to in subrule (2), the ACCC must determine such changes to the infrastructure charges as will enable the ACCC to be satisfied as to the matters referred to in that subrule.
(4) In approving or determining infrastructure charges set out in an application under this Part, the ACCC may have regard to whether or not the infrastructure charges would contribute to achieving the Basin water charging objectives and principles set out in Schedule 2 of the Act.
50 Period within which ACCC to approve or determine infrastructure charges
(1) The ACCC must, within 3 months or, if that period is extended or further extended, that period as extended, after receiving an application under this Part from a Part 7 operator, approve or determine the infrastructure charges set out in the application.
(2) In calculating the 3‑month period referred to in subrule (1), disregard, if the ACCC has requested further information under rule 47—a day before the end of the period specified in the request during any part of which the request, or any part of the request, remains unfulfilled.
(3) If the ACCC:
(a) is unable to make a decision within the period of 3 months referred to in subrule (1) or, if that period is extended or further extended, that period as extended; and
(b) within that period, gives written notice to the Part 7 operator who made the application under this Part explaining why the ACCC has been unable to make the decision within that period:
that period is extended, or further extended, by a further period of one month.
(4) As soon as practicable after the ACCC gives a notice under subrule (3), the ACCC must publish the notice on the ACCC’s website.
51 ACCC to give notice to Part 7 operator of its approval or determination and publish the decision
(1) The ACCC must give notice in writing to the Part 7 operator of its approval or determination, as the case requires, of infrastructure charges under rule 49.
(2) The ACCC must, on the day on which it gives notice to the Part 7 operator under subrule (1), publish the notice and the reasons for its decisions on the ACCC’s website.
Part 8—General
Division 1—Disclosure of information
52 ACCC to publish submissions
Where the ACCC receives a submission in response to an invitation under Part 6 or 7, the ACCC must, subject to this Division, publish the submission on the ACCC’s website as soon as practicable.
53 ACCC not to publish applications and submissions if confidential
(1) Except as provided in subrule (2), the ACCC must not publish an application or a submission under Part 6 or 7, or include any information from an application or submission in its reasons for its decisions under Part 6 or 7, if:
(a) the person who made the application or submission claimed, when making the application or submission, that it contains confidential information; and
(b) the ACCC decides that the application or submission contains confidential information.
(2) If a person claimed, when making an application or submission under Part 6 or 7, that the application or submission contained confidential information and the ACCC considers that it does contain confidential information, the ACCC may publish the application or submission, and any information from an application or submission, if the confidential information is omitted but, before so doing, must cause a note to that effect to be included in the document at the place in the document from which the information is omitted.
(3) In this rule, application includes further information given by the applicant at the request of the ACCC under rule 23C, 26, 35, 41 or 47.
54 Where ACCC disagrees with claim that information is confidential
(1) If:
(a) a person who makes an application or submission under Part 6 or 7 claims that the application or submission contains confidential information; and
(b) the ACCC decides that the application or submission does not contain confidential information as claimed; and
(c) the ACCC wishes to publish the application or submission:
the ACCC must give the person written notice of the ACCC’s decision within 10 business days after receiving the application or submission.
(2) The notice under subrule (1) must include:
(a) a statement that the person may withdraw the claim of confidentiality by giving the ACCC written notice to that effect; and
(b) a statement that, if the person wishes to withdraw the claim, the person must do so within 10 business days after receiving the ACCC’s notice under subrule (1); and
(c) a statement that, if the person decides not to withdraw the claim, the following applies:
(i) the ACCC may publish the application or submission if the information claimed to be confidential is omitted and a note to the effect that confidential information is omitted is inserted in the application or submission at the place from which the information is omitted; and
(ii) the ACCC must not have regard to the omitted information when approving or determining infrastructure charges under Part 6 or 7.
(3) If the person withdraws the claim, the ACCC may publish the entire application or submission.
(4) If the person does not withdraw the claim within 10 business days after receiving the ACCC’s notice under subrule (1), then the ACCC:
(a) may publish the application or submission if the confidential information is omitted and a note to the effect that confidential information is omitted is inserted in the application or submission at the place from which the information is omitted; and
(b) must not have regard to the omitted information when approving or determining the infrastructure charges under Part 6 or 7.
(5) In this rule, application includes further information given by the applicant at the request of the ACCC under rule 23C, 26, 35, 41 or 47.
55 Exempt contracts
If, under rule 9, an exemption has effect, or is granted, in respect of a contract between an infrastructure operator and a customer, the ACCC must not publish any information to which the exemption relates other than:
(a) in relation to an exemption in effect, or applied for, before 1 July 2020—the names of the parties to the contract and the date on which the exemption was granted; and
(b) in relation to an exemption applied for on or after 1 July 2020—the information specified in subrule 9(13A).
56 Monitoring water charges and compliance
Nothing in this Division prevents the ACCC from including information to which this Part applies in its reports to the Minister under section 94 of the Act.
Division 2—Proceedings
57 Proceedings to recover loss or damage
A person who suffers loss or damage as a result of conduct, or an omission, of another person that contravenes these Rules may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
Part 10—Termination fees
Division 1—Certain fees prohibited
70 Prohibition of certain fees and charges
(1) An infrastructure operator must not levy a fee, charge or payment of any kind for or in respect of the termination or surrender of the whole or a part of a right of access.
Civil penalty: 200 penalty units.
(2) Subrule (1) does not apply to:
(a) fees authorised under the Water Market Rules 2009; or
(b) a termination fee.
(3) Where:
(a) a person’s right of access has been terminated or surrendered in whole or in part; and
(b) the person has paid the termination fee (if any) payable under rule 71 to the infrastructure operator;
the operator must not levy, and the person is not liable to pay, any fee, charge or other payment in relation to the right, or the part of the right, that has been terminated or surrendered in respect of a financial year commencing after the termination or surrender.
Civil penalty: 200 penalty units.
Division 2—Termination fees
71 Termination fee may be levied in certain circumstances
(1) A fee levied in accordance with this rule is a termination fee.
(2) An infrastructure operator may levy a termination fee if a person who holds a right of access terminates or surrenders the whole or any part of that right by notice in writing given to the operator, and:
(a) before the person gave the notice, the operator had given the person a termination information statement in relation to the right, or the part of the right, being terminated or surrendered within 6 months before:
(i) if the notice specified a future date for the termination or surrender to take effect—the specified date; or
(ii) otherwise—the date of the notice; or
(b) all of the following apply:
(i) the notice specified a date for the termination or surrender to take effect that was more than 6 months after the date of the notice;
(ii) on receiving the notice, the operator gave the person a termination information statement that included a statement in accordance with paragraph 74(5)(e);
(iii) the person has confirmed that the person wishes to proceed with the termination or surrender; or
(c) all of the following apply:
(i) neither paragraph (a) nor (b) applies;
(ii) on receiving the notice, the operator gave the person a termination information statement;
(iii) the person has confirmed that the person wishes to proceed with the termination or surrender.
(3) An infrastructure operator may also levy a termination fee if the operator, by notice in writing given to a person who holds a right of access, terminates the whole or any part of that right in accordance with a contract applicable to the right on the grounds that an act or omission by the person is in breach of the person’s obligations under that contract (other than the act of trading the whole or a part of a water access right).
(4) A termination fee consists of one or both of:
(a) a general termination fee; and
(b) an additional termination fee.
Maximum general termination fee
(5) If paragraph (2)(a) or (c) applies, the general termination fee must not exceed the general termination fee set out in the termination information statement.
(6) If paragraph (2)(b) applies, the general termination fee must not exceed the maximum amount set by rule 72, calculated using infrastructure charges specified in the schedule of charges in effect at the time of the termination or surrender.
(7) If subrule (3) applies, the general termination fee must not exceed the maximum amount set by rule 72.
Maximum additional termination fee
(8) The additional termination fee:
(a) may be imposed only if such a fee has been approved under rule 73; and
(b) must not exceed the fee approved.
Exceptions to subrules (2) and (3)
(9) Subrules (2) and (3) do not apply to an infrastructure operator if:
(a) both of the following apply:
(i) the holder of the right of access is not liable to pay charges to the operator in respect of the right;
(ii) a fee in respect of the termination or surrender of the right or the part of the right is not specified in any contract or arrangement between the holder and the operator; or
(b) both of the following apply:
(i) the holder of the right of access is provided by the operator with a service for the storage of water using the operator’s water service infrastructure, in addition to the service for the delivery of water or drainage of water;
(ii) the charges for the service for the storage of water are included in the charges in respect of the right of access.
72 Calculation of maximum general termination fee
(1) For the purposes of subrules 71(6) and (7) and 74(6), the maximum amount for a general termination fee is the lesser of the following:
(a) the amount calculated in accordance with subrule (2);
(b) if the fee for the termination or surrender of a right of access or a part of a right of access is provided for in a contract or arrangement between the operator and the holder of the right—the fee determined in accordance with the contract.
Note: The fee may be lower than the maximum calculated in accordance with this rule.
(2) For the purposes of paragraph (1)(a), the amount is to be determined in accordance with the formula:
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where:
A is the sum of the amounts, for a full financial year, of:
(a) the amount of each infrastructure charge payable per unit of water delivery right held multiplied by the number of units of water delivery right being terminated or surrendered; and
(b) the amount of each infrastructure charge payable per unit of water drainage right held multiplied by the number of units of water drainage right being terminated or surrendered.
B relates to dedicated infrastructure that is used exclusively by the terminating customer and will no longer be used by the customer after the termination or surrender, and is:
(a) if there is no separate charge for that infrastructure—zero; and
(b) if there is a separate charge for that infrastructure—the lesser of:
(i) 10 × C; and
(ii) D;
where:
C is the amount of the separate charge for that infrastructure, for a full financial year.
D is a reasonable estimate of the total cost of the dedicated infrastructure, net of a reasonable estimate of any contribution towards that cost made by the terminating customer, whether via direct contribution (for example, a lump sum payment) or via the payment of the separate infrastructure charge.
Note: B is zero unless the infrastructure operator levies a separate infrastructure charge on a customer for infrastructure that is used exclusively by the terminating customer. Because X is a maximum, B need not be calculated if the operator does not wish to levy a fee greater than M × A.
M, the termination fee multiple, is:
(a) if the infrastructure operator does not allow for the trade of a water delivery right of the kind applicable to the right of access that the customer wishes to terminate—1; or
(b) otherwise—10.
X is the amount for paragraph (1)(a).
(3) When calculating A, C and D, the following must be excluded:
(a) any amount in respect of a service for the storage of water;
(b) any amount of GST;
(c) any charge that reflects the costs of physically connecting, or physically disconnecting, the customer from the operator’s water services infrastructure;
(d) if a fee payable under a contract is approved under rule 73—any amount payable under the contract in respect of the recovery of expenditure on capital works relating to the operator’s water services.
(4) In calculating A and C, subject to subrule (5), the relevant infrastructure charges are those specified in the schedule of charges that is in effect on the following dates:
(a) if the calculation is in relation to an amount of a general termination fee that will be specified in a termination information statement under rule 74—the date the information request is received;
(b) if the calculation is for the purposes of subrule 71(6)—the date of the termination or surrender;
(c) if the calculation is for the purposes of subrule 71(7)—the date the operator gives the notice of termination to the terminating customer.
Note 1: Subrule 71(6) relates to a termination or surrender taking effect on a date that was specified in the notice and is more than 6 months after the date of the notice.
Note 2: Subrule 71(7) relates to a termination by the operator because of a breach of contract by the customer.
(5) However, if:
(a) paragraph (4)(a) applies; and
(b) a different schedule of charges had been in effect for the operator on the day that is 25 business days before the information request was received; and
(c) using that earlier schedule of charges would produce a lesser maximum amount under subrule (2);
the relevant infrastructure charges are those specified in that earlier schedule of charges.
(6) Despite subrule (1), if GST is payable in respect of a taxable supply relating to the termination or surrender of the whole or a part of a right of access:
(a) the termination fee levied by the infrastructure operator may be increased by an amount not exceeding the GST payable in respect of that taxable supply; and
(b) the fee determined in accordance with a contract referred to in paragraph (1)(b) may be increased by an amount not exceeding the GST payable in respect of that taxable supply.
73 Approval of additional fee payable under certain contracts relating to capital works
(1) This rule applies if there is a contract between an infrastructure operator and one or more holders of rights of access involving the following:
(a) the carrying out, within 5 years after the day on which the contract was entered into, of capital works relating to the operator’s water service infrastructure;
(b) the payment, by a terminating customer, of a fee relating to the recovery of that capital expenditure.
(2) A party to the contract may, within 3 months after the day on which the contract was entered into, apply to the ACCC for approval of that fee as a fee payable by each terminating customer as an additional termination fee for the purposes of rule 71.
(3) If:
(a) an application is made to the ACCC for approval of the fee as determined in accordance with the contract; and
(b) the ACCC is satisfied that the contract:
(i) relates to, or is made in anticipation of, the carrying out by the infrastructure operator, within 5 years after the contract is entered into, of capital works relating to the operator’s water service infrastructure; and
(ii) provides for fees payable for access to the operator’s water service infrastructure by the holders of rights of access that reasonably relate to the recovery by the operator of expenditure on those capital works in an amount not exceeding the actual, or a reasonable estimate of, expenditure by the operator; and
(iii) provides for a fee payable to the operator by a terminating customer that was agreed by each party to the contract in the course of fair and reasonable negotiation, is clearly stated, and is not subject to variation without the agreement of the holders of the rights of access; and
(c) the ACCC is satisfied that the operator advised the holders of rights of access who are parties to the contract of the general effect of these Rules; and
(d) the ACCC, in accordance with this rule, and having regard to the water charging objectives and principles, approves the fee referred to in subparagraph (b)(iii);
the fee is payable by each terminating customer.
(4) If a person makes an application to the ACCC for approval of a fee determined in accordance with the contract and gives the ACCC:
(a) a copy of the contract; and
(b) the contact details of the parties to the contract; and
(c) such details of contracts entered into, and arrangements made, for the carrying out of capital works relating to the infrastructure operator’s water service infrastructure within the period referred to in subparagraph (3)(b)(i) as are sufficient to confirm that the works have been, are being or are to be carried out; and
(d) any further information requested by the ACCC;
the ACCC:
(e) must decide whether or not to approve the fee; and
(f) must give notice in writing of its decision to each of the parties to the contract; and
(g) if it decides not to approve the fee, must include in the notice under paragraph (f) the reasons for refusing approval.
(5) If the ACCC does not make a decision under subrule (4) within a period of 30 business days after the day it receives an application under subrule (1), the ACCC is taken to have made a decision, at the end of that period, to approve the fee and to have given notice of the decision under paragraph (4)(f).
(6) In calculating a period of 30 business days referred to in subrule (5), disregard, if the ACCC has requested further information in relation to the application, a day during any part of which the request, or any part of the request, remains unfulfilled.
(7) If the ACCC:
(a) is unable to make a decision within the period of 30 business days referred to in subrule (5); and
(b) within that period, gives written notice to the person who makes an application under subrule (1) explaining why the ACCC has been unable to make a decision on the fee within that period of 30 business days;
the period of 30 business days referred to in subrule (5) is extended by a further period of 30 business days.
74 Infrastructure operator to give termination information statements
Requirement to give termination information statements
(1) Subject to subrule (3), if an infrastructure operator receives a written information request from a customer, the operator must give the customer a termination information statement within 25 business days after the day on which it received the request.
Civil penalty: 200 penalty units.
(2) Subject to subrule (3), if an infrastructure operator receives an oral information request from a customer, the operator must either:
(a) inform the customer as soon as practicable that the operator will give the customer a termination information statement on receiving a written information request; or
(b) give the customer a termination information statement, within 25 business days after the day on which the operator received the oral request.
Civil penalty: 200 penalty units.
(3) An infrastructure operator is not required to give a customer a termination information statement in response to an information request if the operator has already given the customer a termination information statement in relation to the right of access, or the specified part of the right of access, within 6 months before:
(a) if the information request:
(i) is a notice that satisfies paragraph (4)(b); and
(ii) specifies a future date for the termination or surrender to take effect;
—that date; or
(b) otherwise—the date of the request.
Meaning of information request
(4) An information request is:
(a) a request from a customer for information on the termination fee that would apply if the customer were to terminate or surrender the whole or a specified part of a right of access; or
(b) notice from a customer of the customer’s intention to terminate or surrender the whole or a specified part of a right of access, including a notice that terminates or surrenders the right, or the specified part of the right, for the purposes of subrule 71(2).
Meaning of termination information statement
(5) A termination information statement is a statement by an infrastructure operator, in writing, that sets out, or includes, the following:
(a) the amount of each of the following that would be payable to the operator by a person if the whole or a part of the person’s right of access were terminated or surrendered within the period of 6 months after the day the statement is given to the person:
(i) the general termination fee;
(ii) any additional termination fee;
(iii) any disconnection fee referred to in rule 76 and known at the time the statement is given or, if it is not practicable to know the fee at that time, an estimate of the amount of such a fee;
(b) how the fees covered by paragraph (a) have been calculated or estimated;
(c) whether the person may trade a water delivery right relevant to the right of access referred to in the information request together with a copy of any rules governing the trade of that water delivery right or a website where such rules can be found;
(d) a statement that the amount of the general termination fee is valid for the period of 6 months after the day on which the statement is given to the person;
(e) if the statement relates to an information request that is a notice that terminates or surrenders the whole or any part of a right for the purposes of subrule 71(2) and specifies a future date for the termination or surrender to take effect (the termination date) that is more than 6 months after the date of the notice—a statement that, if the person confirms that the person wishes to proceed with the termination or surrender, the general termination fee may be calculated on the basis of the schedule of charges in effect on the termination date, and may therefore be higher than the amount set out under subparagraph (a)(i).
Note 1: For subparagraph (a)(ii), if the infrastructure operator has not yet received the relevant approval under rule 73, the operator may include the amount that is expected to apply, with a statement that this fee is subject to approval by the ACCC under that rule.
Note 2: For paragraph (e), if a termination information statement is given to a person in circumstances to which paragraph 71(2)(b) or (c) applies, the operator must not levy a termination fee unless the person confirms that the person wishes to proceed with the termination or surrender.
Note 3: For the maximum amounts that may be levied as general termination fees or additional termination fees, see subrules 71(5) to (8) and subrule (6) of this rule.
Maximum general termination fees in a termination information statement
(6) The general termination fee set out in a termination information statement must not exceed the maximum amount set by rule 72.
75 Liability to pay termination fee
A person must pay a termination fee (if any) levied by an infrastructure operator on the person in accordance with rule 71.
Division 3—Disconnection fees
76 Disconnection fee
(1) Subject to subrule (2), nothing in these Rules prevents an infrastructure operator imposing a fee in respect of the reasonable costs incurred by the operator by reason only of removing or disabling a physical connection between the operator’s water service infrastructure and the infrastructure of a person who holds or has held a right of access to that water service infrastructure.
(2) A fee levied for the purposes of subrule (1) must be identified as a disconnection fee in the operator’s applicable schedule of charges, whether or not it is payable at the same time as a fee under Division 2.
Division 4—Right to terminate right of access not affected
77 Right to terminate not affected
(1) Nothing in these Rules affects the right of an infrastructure operator to terminate the whole or any part of a right of access in accordance with a contract or arrangement applicable to that right.
(2) However, a fee, charge or payment of any kind is not payable in respect of such a termination except as expressly authorised under Division 2.
Part 11—Transitional provisions
Division 1—Amendments made by the Water Charge Amendment Rules 2019
78 Definitions
In this Division:
amending rules means the Water Charge Amendment Rules 2019.
old rules means the Water Charge (Infrastructure) Rules 2010, as in force immediately before 1 July 2020.
79 Transition for exemption provision (rule 9)
(1) An exemption in relation to an infrastructure charge under a particular contract in effect under subrule 9(1), or granted under subrule 9(6), before 1 July 2020 continues to apply on and after that date as if granted under rule 9 as amended by the amending rules.
Note: The effect is that the charge need not appear in a schedule of charges, and rule 7 does not apply in relation to the charge. However, any replacement schedule of charges adopted on or after 1 July 2020 must include the information about the exemption specified in subrule (5). That subrule includes the same requirements as in new subrule 9(13A).
(2) However, subrule (1) does not apply to an exemption in effect under subrule 9(1) of the old rules if, on or after 14 July 2010, the regulated charges specified in the contract in respect of which the exemption was in effect have been varied.
(3) The old rules apply in relation to an application for an exemption under rule 9 that was made, but not decided, before 1 July 2020.
(4) During the period of 12 months beginning on 1 July 2020, despite paragraph 9(3)(a), an application for an exemption under rule 9 may be made in relation to a contract that was entered into before that date.
(5) Despite subrule 9(13) as applied by subrule (1) of this rule, if an exemption is continued in force by subrule (1) of this rule, the infrastructure operator must, within 12 months after 1 July 2020, include the following information in its schedule of charges:
(a) a statement that the exemption has been granted under this rule;
(b) the name of the customer or customers;
(c) the time period of the contract or contracts;
(d) the infrastructure service to which the charge exempt from disclosure relates.
80 Transition for schedule of charges provisions (rule 7 and Part 4)
(1) This rule applies for the period of 12 months beginning on 1 July 2020.
Note: The effect of rule 80 is that infrastructure charges and planning and management charges that were in effect immediately before 1 July 2020 may continue for up to 12 months without further action by the person levying or determining the charges.
Note: However, if any charge levied by an infrastructure operator or other person is to change, a new schedule of charges must first be adopted and come into effect for that operator or other person in accordance with Part 4 as amended.
Infrastructure operator
(2) An infrastructure operator is taken to comply with rule 7 and Part 4 if:
(a) each infrastructure charge that the operator levies on a customer is either:
(i) a charge specified in a schedule of charges (within the meaning of these rules as in force immediately before 1 July 2020) that:
(A) if rule 15 as it then stood was applicable—was published before 1 July 2020 in accordance with that rule; and
(B) was in effect for the operator immediately before 1 July 2020; and
(C) has been given to the customer; or
(ii) covered by subrule 11(7); and
(b) each planning and management charge that the operator levies on a customer:
(i) is a charge about which information was published before 1 July 2020 in accordance with the Water Charge (Planning and Management Information) Rules 2010; and
(ii) was in effect for the operator immediately before 1 July 2020.
Other person levying planning and management charges
(3) A person other than an infrastructure operator is taken to comply with rule 7 and Part 4 on and after 1 July 2020 if each planning and management charge that it levies on a customer:
(a) is a charge about which information was published before 1 July 2020 in accordance with the Water Charge (Planning and Management Information) Rules 2010; and
(b) was in effect for the operator immediately before 1 July 2020.
81 Transition for existing Part 6 operators
(1) This rule applies to an infrastructure operator that, immediately before 1 July 2020, was a Part 6 operator in a regulatory period in respect of which its infrastructure charges had been determined or approved by the Regulator.
Note: Rule 81 deals with an infrastructure operator that was a Part 6 operator immediately before 1 July 2020 (when substantial amendments to the Rules came into effect). Because the amendments have changed the definition of Part 6 operator, it is possible the operator will no longer satisfy the definition. The operator will, however, continue to be treated as a Part 6 operator until the end of the transition period, which is at least the remainder of its current regulatory period. In particular, the operator will be subject to rule 8 and Part 6.
Note: During the transition period, the operator’s status will be reassessed. If the operator will continue to be a Part 6 operator after the end of the transition period, the operator is required to make an application in relation to the next regulatory period under rule 25. Otherwise, the operator will cease to be treated as a Part 6 operator.
Transitional application and transition period
(2) If:
(a) the infrastructure operator had made an application for a determination or approval of charges under Part 6 before 1 July 2020; but
(b) the charges to which the application related had not been determined or approved before 1 July 2020;
then the application is a transitional application for the infrastructure operator.
(3) The transition period for the infrastructure operator begins on 1 July 2020 and ends at the end of:
(a) if the operator had made a transitional application—the regulatory period in relation to which the application was made; and
(b) otherwise—the latest regulatory period in relation to which charges had been determined or approved before 1 July 2020.
Application of these Rules during the transition period
(4) These Rules apply to the infrastructure operator during the transition period as if it continued to be a Part 6 operator under rule 23 as amended by the amending rules, except as provided in this rule.
(5) Where infrastructure charges of the operator were determined or approved before 1 July 2020 in relation to a period after 1 July 2020 (i.e. they were determined or approved under Part 6 as it then stood), the determination or approval is taken to have been made under Part 6 as amended by the amending rules on 1 July 2020.
(6) If the infrastructure operator had made a transitional application, then:
(a) the charges to which the application relates are to be determined or approved in accordance with Part 6 as it stood before 1 July 2020; and
(b) the determination or approval is taken to have been made under Part 6 as amended by the amending rules on 1 July 2020.
(7) In applying Divisions 2, 3 and 4 of Part 6, as amended by the amending rules, to the infrastructure operator:
(a) a reference to the ACCC is taken to be a reference to the Regulator; and
(b) Regulator has the same meaning as it did immediately before 1 July 2020.
(8) Rules 23A, 23B and 23D do not apply to the infrastructure operator until the operator has received the notification from the ACCC under subrule (12) of this rule.
(9) In applying rule 23D to the infrastructure operator, the reference in subrule 23D(2) to the remainder of the regulatory period is taken to be a reference to the remainder of the transition period.
(10) Rule 25 does not apply to the operator unless it has been notified in accordance with subparagraph (15)(d)(ii) of this rule that the next regulatory period for the operator will begin immediately after the end of the transition period for the operator.
Assessment of transitioning Part 6 operator against amended criteria
(11) As soon as practicable after 1 July 2020, the infrastructure operator must notify the ACCC of:
(a) whether or not it is a Part 6 operator under rule 23 as amended by the amending rules; and
(b) any matter that it is aware of that may result in the infrastructure operator ceasing to be a Part 6 operator, or becoming one, on a specified date.
(12) The ACCC must:
(a) form a view as to whether the infrastructure operator is a Part 6 operator under rule 23 as amended by the amending rules, or is likely to cease to be one or to become one before the end of the transition period; and
(b) notify the operator of the ACCC’s view; and
(c) if the ACCC is of the view that the operator is, or is likely to be, a Part 6 operator—advise the operator that the ACCC will decide whether the operator should be granted an exemption from the operation of Divisions 2, 3 and 4 of Part 6 after the end of the transition period.
(13) If paragraph (12)(c) applies, the ACCC must decide whether such an exemption should be granted by applying rule 23C as modified by subrule (15) of this rule.
Note: The ACCC will be required to notify the infrastructure operator of its decision under subrule 23C(12).
(14) If paragraph 12(c) does not apply but, later in the transition period, rule 23B applies so that the ACCC is to consider an exemption for the operator under rule 23C:
(a) any exemption may apply only after the transition period; and
(b) the ACCC must apply rule 23C as modified by subrule (15).
(15) For subrules (13) and (14), rule 23C is applied as if subrules 23C(9), (10), (11) and (12) were replaced by the following provisions:
(a) if the ACCC fails to make a decision under this rule (rule 23C as modified by subrule 81(15)) within 3 months after receiving the application, or giving the notice under rule 23B or paragraph 81(12)(b), the ACCC is taken to have decided to grant the operator an exemption from the operation of Divisions 2, 3 and 4 of Part 6 for the period of 3 years that begins immediately after the end of the transition period for the operator;
(b) if the ACCC decides not to grant the operator an exemption, the ACCC must set the next regulatory period as a period that begins immediately after the end of the transition period for the operator;
(c) the regulatory start date for the operator is taken to be:
(i) for the purposes of the definition of regulatory period in subrule 3(1)—the date on which the operator’s first regulatory period began; and
(ii) for other purposes—1 July 2020;
(d) the ACCC must notify the infrastructure operator as soon as practicable:
(i) of a decision under this rule (including a decision taken to have been made under paragraph 81(15)(a)); and
(ii) if the ACCC does not grant the exemption—that the next regulatory period for the operator will begin immediately after the end of the transition period for the operator.
Note: The effect of this provision is that there is no discontinuity in the status of the operator as a Part 6 operator. In particular, rule 24A will not apply to applications for determination or approval of charges for the regulatory period following the transition period (only rule 25 will apply).
82 Transition for existing Part 7 operators
(1) If an infrastructure operator was a Part 7 operator immediately before 1 July 2020, then, on and after that date, it continues to be a Part 7 operator until it ceases to be a Part 7 operator in accordance with subrule 45(3) as in force immediately before 1 July 2020.
Application of Division 2 of Part 7 to existing Part 7 operators
(2) Division 2 of Part 7, as amended by the amending rules, applies to an infrastructure operator covered by subrule (1) as though:
(a) a reference to the ACCC were a reference to the Regulator; and
(b) Regulator had the same meaning as immediately before 1 July 2020.
83 Transition for Regulators under Part 9
If a State Agency was a Regulator immediately before 1 July 2020, it continues to be a Regulator for the purposes of:
(a) Divisions 2, 3 and 4 of Part 6, as applied by subrule 81(4); and
(b) Division 2 of Part 7, as applied by subrule 82(2);
until the accreditation of the Regulator is revoked by the ACCC, withdrawn by a Basin State or expires.
Note: A State Agency to which this rule applies will act as Regulator only to a transitioning Part 6 operator, for the remainder of the transition period for the operator.