Sydney Water Act 1994

This Act may be cited as the Sydney Water Act 1994.

This Act commences on a day or days to be appointed by proclamation.

Words and expressions used in this Act have the same meanings as they have in the State Owned Corporations Act 1989.

In this Act—

area of operations means the area of operations referred to in Part 4.

availability charge means a charge of a kind referred to in section 64.

business undertaking means all assets, rights and liabilities of Sydney Water Corporation Limited, but does not include any excluded undertaking.

contract charge means any fee or charge payable under a customer contract.

controlled area means an area of land declared by an order in force under section 88 to be a controlled area.

Corporation means Sydney Water Corporation.

customer contract means a contract of a kind referred to in section 55 (1).

excluded undertaking means any assets, rights or liabilities of Sydney Water Corporation Limited that the Minister has directed to be excluded under section 8.

exercise of a function includes the performance of a duty.

function includes a power, authority or duty.

instrument means an instrument (other than this Act) that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order or process of a court.

lease includes a licence or permit.

meter includes any measuring device.

Ministerial Holding Corporation means the Ministerial Holding Corporation constituted by section 37B of the State Owned Corporations Act 1989.

operating licence means an operating licence granted under section 12 or any renewal of it.

operational audit means an operational audit of the Corporation that is required to be prepared under the operating licence.

owner, in relation to land, includes every person who jointly or severally at law or in equity—

is entitled to the land for an estate of freehold in possession, or

is a person to whom the Crown has contracted to sell the land under the Crown Land Management Act 2016 or any other Act relating to alienation of land of the Crown, or

is entitled to receive, or receives, or if the land were let to a tenant would receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise,

and, in relation to land of the Crown, means the Crown, but does not include a person who, or a class of persons that, is declared by the regulations not to be within this definition, either generally or in a particular case or class of cases.

public reserve has the same meaning as it has in the Local Government Act 1993.

public road means—

any road that is opened or dedicated as a public road, whether under the Roads Act 1993 or any other Act or law, or

any road that is declared to be a public road for the purposes of the Roads Act 1993.

statutory body means a corporation that is incorporated by or under an Act, but does not include—

a company within the meaning of the Corporations Act 2001 of the Commonwealth, or

a co-operative within the meaning of the Co-operatives National Law (NSW), or

a society within the meaning of the Friendly Societies Act 1989, or

a society registered under the Financial Institutions (NSW) Code or the Co-operative Housing and Starr-Bowkett Societies Act 1998, or

an association incorporated under the Associations Incorporation Act 2009, or

a body prescribed by the regulations as not being a statutory body for the purposes of this definition.

storages means dam walls, pumps and other works used for or with respect to the extraction, and storage, of—

water in rivers and lakes, and

water occurring naturally on the surface of the ground, and

sub-surface waters.

stormwater drainage area charge means a charge of a kind referred to in section 65.

stormwater drainage channel means any artificial channel by which surface water is carried off.

Tribunal means the Independent Pricing and Regulatory Tribunal established under the Independent Pricing and Regulatory Tribunal Act 1992.

Water Administration Ministerial Corporation means the Water Administration Ministerial Corporation constituted by the Water Management Act 2000.

Water Board means the Water Board constituted under the Water Board Act 1987.

works means—

storages, water mains, sewer mains, water and sewage treatment plants, waste water treatment plants, or stormwater drainage channels, or

monitoring devices in, under, over or near—

any works referred to in paragraph (a), or

any rivers or oceans, or

any works ancillary or antecedent to any works referred to in paragraph (a) or (b).

There is constituted by this Act a corporation with the corporate name of the Sydney Water Corporation.

The State Owned Corporations Act 1989 is amended by inserting in Schedule 5, in alphabetical order, the words “Sydney Water Corporation”.

The Corporation has the functions conferred or imposed on it by or under this or any other Act.

The principal functions of the Corporation are those that are referred to in section 12 and that are the subject of one or more operating licences.

Subject to the terms of any operating licence, the Corporation may—

provide facilities or services that are necessary, ancillary or incidental to its principal functions, and

conduct any business or activity (whether or not related to its principal functions) that it considers will further its objectives.

This section does not limit the functions of the Corporation apart from this section, but is subject to the provisions of this Act, the State Owned Corporations Act 1989 and any other Act or law.

The board of the Corporation is to consist of the following—

a chairperson, appointed by the voting shareholders of the Corporation,

9 directors appointed by the voting shareholders, who are to have appropriate expertise, to the intent that the board includes directors with separate expertise in at least the following areas—

business management,

protection of the environment,

public health.

The Minister is to advertise publicly for nominations for selection for the board.

Subsection (1) has effect despite the provisions of section 20J (2), (3) and (4) of, and clauses 2 (1) and 4 of Schedule 8 to, the State Owned Corporations Act 1989.

The Premier may not nominate—

the portfolio Minister of the Corporation, or

a Minister administering the Environmental Planning and Assessment Act 1979, the Water Management Act 2000, the Protection of the Environment Administration Act 1991 or the Public Health Act 2010,

as a voting shareholder of the Corporation.

However, the portfolio Minister of the Corporation is authorised to attend meetings of the shareholders of the Corporation.

If a Minister nominated by the Premier as a voting shareholder of the Corporation becomes the portfolio Minister of the Corporation or the Minister who is responsible for the administration of any of the Acts referred to in subsection (1) (b), the Premier must, as soon as practicable, revoke the nomination of the Minister as a voting shareholder and nominate another Minister in the Minister’s place.

The portfolio Minister is to answer all questions directed to the Minister in Parliament in relation to the administration of this Act.

The Minister may, by order in writing, direct that the business undertaking of Sydney Water Corporation Limited be transferred to the Corporation, in exchange for the issue of shares or on any other basis.

The transfer of assets, rights and liabilities under this section is to take place at a value or values specified in the order.

On the date specified in the order, the following provisions have effect (subject to the order)—

the assets of Sydney Water Corporation Limited comprised in its business undertaking vest in the Corporation by virtue of this section and without the need for any conveyance, transfer, assignment or assurance,

the rights and liabilities of Sydney Water Corporation Limited comprised in its business undertaking become by virtue of this section the rights and liabilities of the Corporation,

all proceedings relating to the business undertaking commenced before the transfer by or against Sydney Water Corporation Limited or a predecessor of Sydney Water Corporation Limited and pending immediately before the transfer are taken to be proceedings pending by or against the Corporation,

any act, matter or thing done or omitted to be done in relation to the business undertaking before the transfer by, to or in respect of Sydney Water Corporation Limited is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the Corporation,

a reference in any Act, in any instrument made under any Act or in any document of any kind to Sydney Water Corporation Limited or a predecessor of Sydney Water Corporation Limited is, subject to regulations under clause 1 (1) of Schedule 9, to be read as, or as including, a reference to the Corporation.

The operation of this section is not to be regarded—

as a breach of contract or confidence or otherwise as a civil wrong, or

as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or

as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability.

The operation of this section is not to be regarded as an event of default under any contract or other instrument.

No attornment to the Corporation by a lessee from Sydney Water Corporation Limited is required.

Assets, rights or liabilities may not be transferred under this section to the Corporation unless the Corporation is a State owned corporation.

The Minister may direct, by order in writing, that such assets, rights or liabilities of Sydney Water Corporation Limited as are specified or referred to in the order be excluded from Sydney Water Corporation Limited’s business undertaking.

On the date specified in the order, the excluded undertaking concerned is transferred to the Ministerial Holding Corporation or such other person on behalf of the Crown as is so specified.

The functions of the Ministerial Holding Corporation include the following—

to hold and dispose of assets, rights and liabilities transferred to it under this Act,

to carry on any activities or business that relate to the assets, rights and liabilities transferred to it or that are incidental or ancillary to the assets, rights and liabilities transferred to it, including demanding, collecting and receiving charges, levies, rates and fees.

Section 7 applies to the transfer of the excluded undertaking under this section in the same way as it applies to the transfer of Sydney Water Corporation Limited’s business undertaking to the Corporation.

Different parts of any excluded undertaking may be transferred under subsection (2) to different persons.

The Ministerial Holding Corporation or other person is authorised to dispose of any excluded undertaking transferred under subsection (2) or to retain it and conduct any business to which it relates.

The Minister may direct, by order in writing, and on such terms and conditions as are set out or referred to in the order, that such other assets, rights or liabilities used by or attaching to Sydney Water Corporation Limited for the supply of water, the provision of sewerage and stormwater drainage systems, the disposal of waste water and associated purposes, and belonging to the State or an authority of the State, as are specified in the order, be transferred to the Corporation or to a subsidiary of the Corporation.

Section 7 applies to that transfer in the same way as it applies to the transfer of Sydney Water Corporation Limited’s business undertaking to the Corporation.

The Corporation has, subject to this section, the same area of operations that Sydney Water Corporation Limited had immediately before it ceased to be a company State owned corporation. Each operating licence is to contain a schedule that details the area of operations or the part of the area of operations to which the operating licence applies.

The Governor may, by order published on the NSW legislation website, vary the area of operations and may, by that order, specify which systems and services the Corporation may provide in the whole or a part or parts of the area of operations as so varied.

An order under subsection (2) may expand or reduce the area of operations. However, an order must not reduce the area of operations unless the Minister is satisfied that, after the order takes effect, similar services to those provided by the Corporation in the area to be excised from the area of operations are able to, and will, be provided by any one or more of the following—

a council of an area, or

Hunter Water Corporation,

a public authority within the meaning of the Water Management Act 2000, or

a water supply authority within the meaning of the Water Management Act 2000.

Despite subsections (2) and (3), the area of operations must not be—

reduced, or

expanded to include the whole or part of the area within which any of the bodies referred to in subsection (3) (a)–(d) provides services that are the same services the Corporation is authorised to provide under the operating licence,

unless consultations, regarding the proposed reduction or expansion and the implications of the proposed reduction or expansion, have taken place between the Corporation and the council, Hunter Water Corporation, public authority or Water Supply Authority before the order reducing or expanding the area of operations is made.

It does not matter if a reduction or expansion of the area of operations results in parts of the area of operations covered by an operating licence not being contiguous.

An order to vary the area of operations does not take effect until written notice of the order, accompanied by a copy of the order, is laid before each House of Parliament and either—

15 sitting days of each House of Parliament has passed after the order was tabled and notice of a motion to disallow the order has not been given, or

if notice of a motion to disallow the order has been given, the motion has lapsed or has been withdrawn or defeated.