Essential Services Act 1988

This Act may be cited as the Essential Services Act 1988.

This Act commences on the date of assent.

In this Act—

essential service means a service that is an essential service by virtue of section 4.

industrial action has the same meaning as in the Industrial Relations Act 1996.

industrial matter has the same meaning as in the Industrial Relations Act 1996.

industrial organisation has the same meaning as in the Industrial Relations Act 1996.

Industrial Registrar means the Industrial Registrar appointed under the Industrial Relations Act 1996.

place includes land, road, building, structure, work, mine, vehicle and vessel.

property includes undertaking, equipment, goods, vehicles, vessels, articles and things of any kind.

In this Act, a reference to the provision of an essential service includes a reference to the conduct, performance, maintenance, supply and distribution of an essential service.

In this Act, a reference to the community includes a reference to any part of the community.

In this Act—

a reference to function includes a reference to a power, authority and duty, and

a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

For the purposes of this Act, a service is an essential service if it consists of any of the following—

the production, supply or distribution of any form of energy, power or fuel or of energy, power or fuel resources,

the public transportation of persons or the transportation of freight (including the provision of rail infrastructure for those purposes),

the provision of fire-fighting services,

the provision of public health services (including hospital or medical services),

the provision of ambulance services,

the production, supply or distribution of pharmaceutical products,

the provision of garbage, sanitary cleaning or sewerage services,

the supply or distribution of water,

the conduct of a welfare institution,

the conduct of a prison,

a service declared to be an essential service under subsection (2),

a service comprising the supply of goods or services necessary for providing any service referred to in paragraphs (a)–(k).

The Governor may, by order published on the NSW legislation website, declare any service to be an essential service for the purposes of this Act.

To avoid doubt, the regulation of bulk water supply by the Water Administration Ministerial Corporation in the exercise of its rights to the control, use and flow of water is capable of being declared to be an essential service for the purposes of this Act.

Such an order may not be made unless the Minister has certified to the Governor that the service is essential in the public interest.

Any such order takes effect on the day on which it is published on the NSW legislation website.

Editorial note—

For orders under this section see Gazettes No 28 of 21.2.1990, p 1509 and No 59 of 19.4.1991, p 2961.

This Act has effect despite anything expressed or implied in—

any other Act, including—

the Industrial Relations Act 1996, or

the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989, or

Part 6 of the Energy and Utilities Administration Act 1987, or

any State industrial instrument, or

any award or agreement within the meaning of the Industrial Relations Act 1996, or

any contract or agreement, whether oral or in writing, or

any deed, security, document or writing.

The powers conferred by or under this Act or the regulations are in addition to and not in derogation from any other powers exercisable apart from this Act.

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Whenever it appears to the Governor that from any cause the provision of an essential service is, or is likely, for any period—

to cease, or

to be interrupted or reduced, or

to be provided in a manner that does not or is not likely to meet the reasonable requirements of the community, or

otherwise to be rendered insufficient for the reasonable requirements of the community,

the Governor may, by proclamation published on the NSW legislation website, declare that the essential service is one in respect of which regulations may be made under section 9.

Any such proclamation may be made whether or not it appears to the Governor that an emergency situation exists, or is likely to exist, in relation to the essential service.

Any such proclamation shall specify the Minister who is to have the responsibility for recommending the making, and for the administration and enforcement, of any regulation made under section 9 in relation to the essential service the subject of the proclamation.

Any such proclamation takes effect on the day on which it is published on the NSW legislation website or, if a later day is specified in the proclamation for that purpose, on the later day so specified.

Any such proclamation continues in force for such period not exceeding 30 days from the day on which it takes effect as is specified in the proclamation.

Any such proclamation may be amended, varied or revoked by a later proclamation.

At the same time as a proclamation is made under section 8 in relation to an essential service, or after the making of such a proclamation, the Governor may make a regulation with respect to any one or more of the following matters—

regulating, controlling, directing, restricting or prohibiting the provision of the essential service and the activities of any person involved in the provision of the essential service,

authorising any person to exercise such functions as appear to the Governor to be necessary or expedient to ensure or facilitate the proper provision of the essential service, including the making or giving of any order or direction, and in particular (but without limiting paragraph (a) or this paragraph) authorising any person—

to regulate, control, direct, restrict and prohibit the provision of the essential service, whether generally or for any purpose or purposes specified in the regulation, and

to direct a person who provides or is engaged in the provision of the essential service, to provide it to a person specified in the regulation, and

to specify the terms and conditions on which the essential service shall be provided, and

to direct that a person to whom an essential service is provided accept the provision of the essential service, and

to make such orders, take such measures, give such directions and do such things as are in the opinion of the person necessary or expedient to carry into effect the purposes of this Act or the regulation,

generally prescribing all such matters or things as the Governor considers necessary or expedient to be prescribed for the carrying into effect of the purposes of this Act or the regulation.

Any such regulation—

may be made before the proclamation under the authority of which it is made takes effect; but

shall not take effect before that proclamation takes effect.

Any such regulation and any order or direction made or given under the authority of the regulation—

may be made or given so as to apply to or have operation throughout the whole or any specified part of the State, and

may be made or given so as to operate for any period or periods or for any time or times or for any occasion or occasions specified in it, and

may be of general operation or of specially limited operation according to any specified times, places, circumstances, conditions or restrictions, and

may authorise a person specified in the regulation, order or direction—

to enter any place, and

to take possession or control of, or use, any property,

used for or in connection with the essential service.

Any order or direction referred to in subsection (3)—

shall if published in the Gazette or on the NSW legislation website be taken to have been sufficiently served on or brought to the notice of all persons concerned or affected by it, and

may be made or given so as to apply to any particular person and may be served on the person by delivering a copy of it to the person by hand, or by sending the copy to the person by post,

or in the case of a direction may be given orally or by telegram.

Any such regulation shall, unless it sooner expires or is revoked, continue in force until the proclamation under the authority of which it was made is revoked or ceases to be in force.

Any such regulation may provide that a person who contravenes a provision of the regulation is guilty of an offence against the regulation, and, in particular, may provide that a person who refuses or fails to comply with an order or direction made or given under the regulation is guilty of such an offence.

An order or direction referred to in subsection (3) shall, unless it sooner expires or is revoked, continue in force until the regulation under the authority of which it was made or given is revoked.

Whenever it appears to the Governor that—

from any cause the provision of an essential service is, or is likely, for any period—

to cease, or

to be interrupted or reduced, or

to be provided in a manner that does not or is not likely to meet the reasonable requirements of the community, or

otherwise to be rendered insufficient for the reasonable requirements of the community, and

an emergency situation exists, or is likely to exist, in relation to the essential service,

the Governor may, by order in writing, declare that a state of emergency exists in relation to the essential service.

Any such order—

may apply to or have operation throughout the whole or any specified part of the State, and

shall specify the Minister who may give directions under section 11 in relation to the essential service concerned.

Any such order takes effect from its making or, if a later day is specified in the order for that purpose, on the later day so specified.

Any such order (unless sooner revoked) continues in force for such period not exceeding 30 days as is specified in the order.

More than one order may be made under this section in respect of an emergency.

An order under this section shall be published in the Gazette or on the NSW legislation website as soon as practicable after it is made.

Editorial note—

For orders under this section see Gazettes No 31 of 2.3.1990, p 1799 (replaced by Gazette No 34 of 5.3.1990, p 1987); No 129 of 19.10.1990, p 9217; No 103 of 5.7.1991, p 5403 and No 121 of 30.8.1991, p 7438. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.

If an order is in force under section 10 in respect of an essential service, the Minister specified in the order may, by notice in writing—

give such directions as are necessary to regulate, control, direct, restrict or prohibit the provision of the essential service and the activities of any person involved in the provision of the essential service, and

direct a person who provides or is engaged in the provision of the essential service to provide it to a person specified in the direction, and

direct a person to comply with such terms and conditions as the Minister determines relating to the provision of the essential service, and

direct a person to whom an essential service is provided to accept the provision of the essential service, and

direct any person to exercise such functions as appear to the Minister to be necessary or expedient to ensure or facilitate the proper provision of the essential service, including the making or giving of any order or direction.

Any such direction of the Minister—

may apply to or have operation throughout the whole or any specified part of the State, and

may, while an order referred to in section 10 is in force, operate for any period or periods or for any time or times or for any occasion or occasions specified in the direction, and

may be of general operation or of specially limited operation according to any times, places, circumstances, conditions or restrictions specified in the direction, and

may authorise a person specified in the direction—

to enter any place, and

to take possession or control of, or use, any property,

used for or in connection with the essential service.

Any such notice—

may be published in the Gazette or on the NSW legislation website and when so published any direction contained in the notice shall be taken to have been sufficiently served on or brought to the notice of all persons concerned or affected by it, and

may, without affecting the provisions of paragraph (a), where it applies to any particular person, be served on the person by delivering a copy of it to the person by hand, or by sending a copy to the person by post or telegram.

The Minister or a Minister specified in a proclamation under section 8 or an order under section 10 may authorise a person to carry out inspections for the purposes of this Act.

The Minister granting the authorisation shall provide an inspector with a certificate of the inspector’s authority in the prescribed form.

An inspector, in exercising in any place any function conferred or imposed under this Act, shall, if so required by a person apparently in charge of that place, produce the certificate of authority to that person.