Part 4Water industry

Part 4—Water industry Division 1—Declaration as regulated industry 17—Declaration as regulated industry The water industry is declared to constitute a regulated industry for the purposes of the Essential Services Commission Act 2002. Division 2—Licensing of water industry entities 18—Requirement for licence (1) A person must not provide a retail service unless the person holds a licence under this Part authorising the relevant services, operation or activity. Maximum penalty: $1 000 000. (2) SA Water is entitled by the force of this section to hold a non‑transferable licence under this Part appropriate to the services, operations or activities provided, carried on or undertaken by it from time to time. (3) In connection with the operation of subsection (2)— (a) the Commission must issue SA Water with the appropriate licence or licences; and (b) the Commission must comply with any requirements specified by the Minister as to the terms and conditions of a licence and rights conferred by a licence. (4) The requirements of the Minister as to the conditions of a licence under subsection (3) must be consistent with the provisions of this Act as to such conditions. (5) To avoid doubt, a licence under subsection (3) cannot be transferred, suspended or cancelled. (6) In connection with the operation of this section— (a) the Minister must establish a set of community service obligations that require SA Water to continue to provide services within those areas of the State in which services are provided immediately before the commencement of subsection (2) unless the Minister grants an approval for the discontinuance of any such service; and (b) if the Minister grants an approval under paragraph (a), the Minister must immediately prepare a report in relation to the matter and cause copies of the report to be laid before both Houses of Parliament within 6 sitting days after the approval is given. 19—Application for licence (1) An application for the issue of a licence must— (a) be made to the Commission in a form approved by the Commission; and (b) contain the information specified in the form. (2) The applicant must pay to the Commission an application fee fixed by the Treasurer of an amount that the Treasurer considers appropriate to meet the reasonable costs of determining the application. (3) The Commission may, as the Commission considers appropriate, accept a single application from an applicant in respect of different operations of the applicant or operations of the applicant at different locations or may require separate applications. (4) The applicant must give the Commission any further relevant information requested by the Commission. 20—Consideration of application (1) The Commission must consider an application for the issue of a licence and may, subject to this Division, issue or refuse to issue the licence. (2) The Commission must have regard to the general factors specified in Part 2 of the Essential Services Commission Act 2002 and, subject to this section, may only issue a licence if satisfied that— (a) the applicant is a suitable person to hold the licence; and (b) the applicant will be able to meet reasonably foreseeable obligations under contracts for the sale or supply of water or the sale or supply of sewerage services (or both), as the case may require; and (c) the water infrastructure or the sewerage infrastructure (or both), as the case may require, to be used in connection with the relevant service is (or proposed infrastructure will be) appropriate for the purposes for which it will be used; and (d) the applicant has the capacity (including financial, technical, organisational and other necessary capacity) to provide the services safely and to appropriate standards that would be authorised by the licence; and (e) the applicant meets any special requirements imposed by the regulations for the holding of the licence; and (f) the grant of the licence would be consistent with criteria (if any) prescribed by the regulations. (3) In deciding whether an applicant is a suitable person to hold a licence, the Commission may consider— (a) the applicant's previous commercial and other dealings and the standard of honesty and integrity shown in those dealings; and (b) the financial, technical and human resources available to the applicant; and (c) the officers and, if applicable, major shareholders of the applicant and their previous commercial and other dealings and the standard of honesty and integrity shown in those dealings (including breaches of statutory and other legal obligations); and (d) other matters prescribed by regulation or considered relevant by the Commission. (4) If— (a) a person carries on or proposes to carry on operations for which a licence is required as agent of another person; and (b) the agent makes application for the issue of such a licence on the agent's own behalf and on behalf of the principal; and (c) the Commission is satisfied that the criteria for the issue of the licence are met in relation to the agent, the Commission may, at the Commission's discretion, dispense with the requirement that the Commission be satisfied that the criteria are met in relation to the principal and issue the licence to the agent and the principal to be held by them jointly. 21—Licences may be held jointly (1) A licence may be held jointly by 2 or more persons. (2) If a licence is held jointly by 2 or more persons, those persons are jointly and severally liable to meet requirements imposed under this Act or the Essential Services Commission Act 2002. 22—Authority conferred by licence (1) A licence authorises the person named in the licence to provide services or to carry on operations or activities in accordance with the terms and conditions of the licence. (2) Any services, operations or activities authorised by a licence need not be all of the same character or undertaken at the same location but may consist of a combination of different services, operations or activities provided or carried on at 1 or more locations. 23—Term of licence A licence may be issued for an indefinite period or for a term specified in the licence. 24—Licence fees and returns (1) A person is not entitled to the issue of a licence unless the person first pays to the Commission the relevant annual licence fee, or the first instalment of the relevant annual licence fee, as the case may require. (2) The holder of a licence issued for a term of 2 years or more must— (a) in each year lodge with the Commission, before the date prescribed for that purpose, an annual return containing the information required by the Commission by condition of the licence or by written notice; and (b) in each year (other than a year in which the licence is due to expire) pay to the Commission, before the date prescribed for that purpose, the relevant annual licence fee, or the first instalment of the relevant annual licence fee, as the case may require. (3) The annual licence fee for a licence is the fee fixed, from time to time, by the Treasurer in respect of that licence as an amount that the Treasurer considers to be a reasonable contribution towards prescribed costs after taking into account advice contained in a written report furnished to the Treasurer by the Commission for the purposes of this subsection. (4) The Treasurer must, within 14 days after the receipt of a report under subsection (3), cause a copy of the report to be published on the Department of Treasury and Finance's website. (5) The annual licence fee may, if the Commission so determines, be paid in equal instalments at intervals fixed by the Commission. (6) If the holder of a licence fails to lodge the annual return or pay the annual licence fee (or an instalment of the annual licence fee) in accordance with this section, the Commission may, by written notice, require the holder to make good the default and, in addition, to pay to the Commission the amount prescribed as a penalty for default. (7) An annual licence fee (including any instalment of an annual licence fee or any penalty for default) payable under this section is recoverable as a debt due to the Crown. (8) In this section— holder of a licence includes the holder of a licence that has been suspended; prescribed costs means— (a) the costs of administration of this Act; and (b) any costs of administration of the Essential Services Commission Act 2002 relating to the water industry; and (c) any costs associated with the development by the State Government of policies relating to the water industry; and (d) other costs prescribed by regulation. 25—Licence conditions (1) The Commission must make a licence subject to conditions determined by the Commission— (a) requiring compliance with applicable codes or rules made under the Essential Services Commission Act 2002 as in force from time to time; and (b) requiring the water industry entity to comply with code provisions as in force from time to time (which the Commission must make under the Essential Services Commission Act 2002) relating to the following matters with respect to designated customers, or designated classes of customers: (i) standard contractual terms and conditions to apply to the sale or supply (or the sale and supply) of designated services; (ii) minimum standards of service that take into account relevant national benchmarks developed from time to time; (iii) limitations on the grounds on which the supply of designated services may be discontinued or disconnected; (iv) the processes to be followed before designated services are discontinued or disconnected; and (c) requiring the water industry entity, at the request of a designated customer, to provide designated services at the water industry entity's standard contract price and subject to the water industry entity's standard contractual terms and conditions; and (d) requiring the water industry entity to comply with code provisions as in force from time to time (which the Commission must make under the Essential Services Commission Act 2002 on or before a prescribed date) relating to the provision of pricing information to designated customers, or designated classes of customers; and (e) requiring the water industry entity to include in each account for services provided to designated customers, or customers of a designated class, information prescribed by the regulations; and (f) requiring the water industry entity to maintain specified accounting records and to prepare accounts according to specified principles; and (g) requiring a specified process to be followed to resolve disputes between the water industry entity and its customers; and (h) if the water industry entity provides designated services to designated customers, or designated classes of customers, requiring the water industry entity to participate in an ombudsman scheme determined or approved by the Commission; and (i) requiring the water industry entity to monitor and report as required by the Commission on indicators of service performance determined by the Commission; and (j) relating to the water industry entity's financial or other capacity to provide services or to continue operations or activities under the licence; and (k) requiring the water industry entity to maintain specified kinds and levels of insurance; and (l) requiring the water industry entity to have all or part of the services, operations or activities authorised by the licence audited and to report the results of the audit to the Commission; and (m) requiring the water industry entity to notify the Commission about changes to officers and, if applicable, major shareholders of the entity; and (n) requiring the water industry entity to provide, in the manner and form determined by the Commission, such other information as the Commission may from time to time require; and (o) requiring the water industry entity to comply with the requirements of any scheme approved and funded by the Minister for the provision by the State of customer concessions or the performance of community service obligations by water industry entities; and (p) requiring the water industry entity to comply with the requirements of any scheme approved and funded by the Minister for the purposes of providing specified exemptions from the requirement to pay for the provision of specified services. (2) The Commission must, in acting under subsection (1), have regard to the scale and nature of the operations of the water industry entity (with the scale and nature being determined by the Commission after consultation with the entity or a person or body nominated by the entity). (3) The Commission must make a licence subject to further conditions that the Commission is required by regulation to impose on the issue of such a licence. (4) The Commission may make a licence subject to further conditions considered appropriate by the Commission. (5) A code or set of rules under subsection (1)(a) must include provisions to assist customers who may be suffering specified types of hardship relevant to the supply of any services (being provisions that comply with any direction of the Minister and that will apply under the code or rules despite any provision made by the Essential Services Commission Act 2002). (6) The Commission must provide to the Minister any information that the Minister requires for the purposes of the administration of a scheme— (a) for the provision by the State of customer concessions, or the performance of community service obligations, relating to the sale or supply of water or the sale or supply of sewerage services; or (b) for the provision of exemptions from the requirement to pay for the provision of various services. (7) For the purposes of this section, the Minister may— (a) by notice in the Gazette, designate various services; (b) by further notice in the Gazette, vary or revoke a previous notice under paragraph (a). 27—Offence to contravene licence conditions (1) A water industry entity must not contravene a condition of its licence. Maximum penalty: $1 000 000. (2) An offence against subsection (1) may be prosecuted as an indictable offence or a summary offence at the discretion of the prosecutor but, if prosecuted as a summary offence, the maximum penalty that may be imposed is a fine not exceeding $20 000. 28—Variation of licence (1) The Commission may vary the terms or conditions of a water industry entity's licence by written notice to the entity. (2) A variation under subsection (1) may only be made— (a) on application by the water industry entity or with the water industry entity's agreement; or (b) after giving the water industry entity reasonable notice of the proposed variation and allowing the entity a reasonable opportunity to make representations about the proposed variation (and giving due consideration to any such representations). (3) The conditions of a licence prescribed by the regulations may be varied from time to time by further regulations. (4) The conditions of a licence may be varied by the addition, substitution or deletion of one or more conditions. 29—Transfer of licence (1) A licence may be transferred with the Commission's agreement. (2) The Commission may impose conditions on the transfer of a licence, or vary the terms and conditions of the licence on its transfer. (3) The Commission must not agree to the transfer of a licence if the transferee would not be entitled to the issue of the licence. (4) An application for agreement to the transfer of a licence must— (a) be made by the transferor with the consent of the transferee to the Commission in a form approved by the Commission; and (b) contain the information specified in the form. (5) The applicant must pay to the Commission an application fee fixed by the Treasurer of an amount that the Treasurer considers appropriate to meet the reasonable costs of determining the application. (6) The applicant must give the Commission further relevant information requested by the Commission. 30—Consultation with consumer bodies The Commission may, before issuing a licence, agreeing to the transfer of a licence or determining or varying conditions of a licence, consult with and have regard to the advice of— (a) the Technical Regulator; and (b) the Ombudsman holding office under the industry ombudsman scheme; and (c) the consumer advisory committee under Part 3. 31—Notice of licence decisions (1) The Commission must give an applicant for a licence, or for agreement to the transfer of a licence, written notice of the Commission's decision on the application. (2) The Commission must give the holder of a licence written notice of any decision by the Commission affecting the terms or conditions of the licence. 32—Surrender of licence (1) A water industry entity may, by written notice given to the Commission, surrender its licence. (2) The notice must be given to the Commission so as to comply with a period of notice required under the terms of the licence. (3) The Commission may, by agreement with the water industry entity, shorten the required period of notice. 33—Suspension or cancellation of licences (1) The Commission may, if satisfied that— (a) the holder of a licence obtained the licence improperly; or (b) the holder of a licence has been guilty of a material contravention of a requirement imposed by or under this Act or any other Act in connection with the operations authorised by the licence; or (c) the holder of a licence has ceased to carry on operations authorised by the licence; or (d) there has been any act or default such that the holder of a licence would no longer be entitled to the issue of such a licence, suspend or cancel the licence with effect from a specified date. (2) A suspension under this section may be for a specified period, or until the fulfilment of specified conditions, or until further order of the Commission. (3) Before the Commission acts under this section, the Commission must— (a) notify the holder of the licence in writing of the proposed action specifying the reasons for the proposed action; and (b) allow the holder of the licence at least 14 days within which to make submissions to the Commission in relation to the proposed action. 34—Register of licences (1) The Commission must keep a register of the licences currently held by water industry entities under this Act. (2) The register must include— (a) the terms and conditions of each licence; and (b) other information required under the regulations. (3) A person may, without payment of a fee, inspect the Register. Division 3—Price regulation 35—Price regulation (1) Subject to this section, the Commission may make a determination under the Essential Services Commission Act 2002 regulating prices, conditions relating to prices, and price‑fixing factors for retail services. (2) Despite the provisions of the Essential Services Commission Act 2002, the operation of a determination of a kind referred to in subsection (1) is not to be stayed pending the determination of an application for review under Part 6 of that Act. (3) In addition to the requirements of section 25(4) of the Essential Services Commission Act 2002, the Commission must, in acting under subsection (1), comply with the requirements of any pricing order issued by the Treasurer under this section. (4) The Treasurer may, for the purposes of subsection (3), issue an order (a pricing order) that— (a) sets out any policies or other matters that the Commission must have regard to when making a determination contemplated by this section; (b) specifies various parameters, principles or factors that the Commission must adopt or apply in making a determination contemplated by this section; (c) relates to any other matter that the Treasurer considers to be appropriate in the circumstances. (5) A pricing order— (a) takes effect on a date specified in the order; and (b) cannot be varied (except as contemplated by the order) or revoked (but this paragraph does not prevent new pricing orders being made from time to time). (6) Notice of the making of a pricing order must be published in the Gazette. (7) The notice must include a brief description of the nature and effect of the pricing order and state how a copy may be inspected or purchased. (8) The Treasurer must— (a) send a copy of a pricing order to each water industry entity to which the order may relate; and (b) ensure that a copy of the order is published on the Department of Treasury and Finance's website; and (c) ensure that copies of the order are available for inspection and purchase by members of the public. (9) In this section— price includes price range.