Water Charge Rules 2010 (Cth)
made under section 92 of the
This is a compilation of the
The notes at the end of this compilation (the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
For more information about any editorial changes made in this compilation, see the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
These Rules are the
Water Charge Rules 2010 .
(1) In these Rules, unless the contrary intention appears:
Act means theWater 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).
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 ofagency 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 theBasin 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).
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 theCrimes 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.
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.
For the purposes of these Rules, an infrastructure operator is a
member owned operator if the majority of its customers are related customers.
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.
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 theBasin Plan 2012 —see subrule 3(1).
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.
(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
(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 havea 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.
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.
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.
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.
Example: Charges levied on off‑take works used by the operator to extract water from or deliver water to a natural watercourse.
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.
(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.
(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.
A schedule of charges adopted under subrule 11(1) or 12(1) must include the applicable information set out in the following table.
1 | For each infrastructure charge or planning and management charge | The following:
|
2 | For each infrastructure charge | The following:
|
3 | For each planning and management charge | The legislative, contractual or other authority for the charge |
4 |
| The following:
|
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 writingfor 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.
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.
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.
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.
(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.
(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.
(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.
(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.
(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.
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.
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.
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.
(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.
(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.
(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.
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.
(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.
(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.
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.
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.
(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.
(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.
(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.
(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.
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.
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.
(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.
(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.
(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.
(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 .
(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.
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.
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.
(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.
(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.
(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.
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.
(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.
(b) in respect of each year of the following regulatory period including the following:
(i) forecast capital expenditure;
(ii) the major projects to be completed including the forecast cost and timing of the projects;
(iii) the expected outcomes of the projects and their justification;
(iv) evidence that the expected levels of expenditure are prudent and efficient—for example, the results of an independent engineer’s assessment.
Details of the Part 6 operator’s operating and maintenance expenditure:
(a) in respect of each year of the regulatory period that is set to expire, including the following:
(i) actual operating expenditure;
(ii) the key reasons for the expenditure;
(iii) a justification of the actual operating expenditure;
(iv) evidence of productivity improvements;
(b) in respect of each year of the following regulatory period including:
(i) forecast operating expenditure;
(ii) the key reasons for the proposed expenditure;
(iii) a justification of the forecast operating expenditure;
(iv) proposed productivity improvements.
Details of the Part 6 operator’s tax liabilities relating to the provision of infrastructure services:
(a) in respect of each year of the regulatory period that is set to expire, including carried forward losses and tax depreciation in each year of preceding regulatory period; and
(b) in respect of each year of the following regulatory period, including forecast carried forward losses and tax depreciation.
Details of the Part 6 operator’s demand or consumption for its infrastructure services:
(a) in respect of each year of the regulatory period that is set to expire;
(b) in respect of each year of the following regulatory period, including:
(i) forecast demand or consumption;
(ii) a description of the methodology used to forecast demand or consumption;
(iii) assumptions on which the forecasts are based;
(iv) consistency with historical data.
Details of the Part 6 operator’s infrastructure charges for its infrastructure services for each year of the regulatory period that is set to expire and of its proposed infrastructure chargesfor each year of the following regulatory period.
(Rule 29)
The regulatory asset base of a Part 6 operator, for the purposes of the first regulatory period under these Rules in relation to the operator as a Part 6 operator (
first Part 6 period ) :
(a) in the case of an operator whose fees and charges were determined by an agency of a State under a law of the State in respect of the period immediately before the first Part 6 period (
preceding period ), is to be determined in accordance with the formula:where:
A is the value of the operator’s assets at the beginning of the preceding period.
B is the value of such of those assets that were not used by the operator to provide infrastructure services during the preceding period and any assets contributed by customers or government.
C is the actual (or, where relevant, forecast) capital expenditure on assets used by the operator to provide infrastructure services (net of actual customer and government capital expenditure contributions) in respect of each year of the preceding period, other than any expenditure that:
(i) was made in relation to:
(A) a major project not previously approved; or
(B) a project whose scope as undertaken materially differed from what was approved; or
(C) a project on which expenditure materially exceeded the amount previously approved; and
(ii) the ACCC is not satisfied was prudent and efficient expenditure.
D is the regulatory depreciation in respect of assets used to provide infrastructure services (as determined for each year of the preceding period).
E is the actual (or, where relevant, forecast) revenue received by the operator from disposal of assets used to provide infrastructure services in the preceding period; and
(b) in the case of any other Part 6 operator, is to be determined by applying a recognised valuation methodology.
The regulatory asset base of a Part 6 operator, for the purposes of the second or a subsequent regulatory period in relation to the operator as a Part 6 operator, is to be determined in accordance with the formula:
where:
A is the regulatory asset base of the operator determined under this Schedule in respect of the preceding regulatory period as calculated under either clause 1 or this clause, and adjusted as appropriate by replacing any forecast amounts in the calculations of that asset base by the amounts actually spent or received.
B is the total of the actual (or, in the case of the last year of the preceding regulatory period, forecast) capital expenditure on assets used by the operator to provide infrastructure services (net of actual customer and government capital expenditure contributions) in respect of each year of the preceding regulatory period, other than any expenditure that:
(a) was made in relation to:
(i) a major project not previously approved; or
(ii) a project whose scope as undertaken materially differed from what was approved; or
(iii) a project on which expenditure materially exceeded the amount previously approved; and
(b) that the ACCC is not satisfied was prudent and efficient expenditure.
C is the regulatory depreciation in respect of assets used to provide infrastructure services in respect of each year of the preceding regulatory period.
D is the actual (or, where relevant, forecast) revenue received by the operator from disposal of assets used to provide infrastructure services in respect of each year of the preceding regulatory period.
For the purposes of calculating
C in clause 1 orB in clause 2, a capital expenditure project should be taken to have been approved to the extent that the scope of, and expenditure on, a project proposed by an infrastructure operator was accepted by a State agency or the ACCC in forecasting the amount of capital expenditure to be used when approving, determining or varying the operator’s infrastructure charges.
(Rule 46)
Details of the Part 7 operator’s:
(a) current infrastructure charges;
(b) infrastructure charges for which the operator is seeking approval;
(c) the period for which those infrastructure charges will apply, where relevant.
Details of the Part 7 operator’s asset base required for provision of infrastructure services including:
(a) the nature and type of assets on which returns to investors have, or will be, paid;
(b) the valuation of the assets on which returns to investors have been, or will be, paid;
(c) the method and assumptions used to calculate the valuation of those assets including estimated remaining economic lives and the basis for past and future depreciation;
(d) the financing of those assets showing—
(i) the proportion contributed or financed by its members;
(ii) the proportion of assets contributed or financed by government;
(iii) the proportion financed through renewals annuity charges;
(iv) the proportion financed through non‑annuity charges, whether or not debt funding is used;
(e) the Part 7 operator’s method and assumptions used to calculate the return on those assets.
(1) Details, in relation to the Part 7 operator’s infrastructure services for each of the preceding three financial years, of:
(a) the actual total operating costs incurred in providing the infrastructure services;
(b) the depreciation of capital assets used for provision of the infrastructure services;
(c) the actual taxation in relation to the provision of the infrastructure services;
(d) the rate of return on investment in relation to the provision of the infrastructure services.
(2) Details, for the period for which the infrastructure charges for which approval or determination is sought will apply, of the forecast of:
(a) the total operating costs to be incurred in providing the infrastructure services;
(b) the depreciation of capital assets required for provision of the infrastructure services;
(c) the taxation in relation to the provision of the infrastructure services;
(d) the rate of return on investment in relation to the provision of the infrastructure services.
(1) Details, in relation to the Part 7 operator’s infrastructure services for each of the preceding three financial years, of the actual demand for, or consumption of, the infrastructure services.
(2) Details, for the period for which the infrastructure charges for which approval or determination is sought will apply, of the forecast of the demand for, or consumption of, the infrastructure services, including:
(a) the methodology used to determine that forecast demand or consumption; and
(b) the assumptions on which the forecast is based.
(1) Details, in relation to distributions that the Part 7 operator has made to related customers in each of the preceding three financial years, including:
(a) the amount of the distribution pool and the source of the reserve or surplus from which the distribution was drawn;
(b) for each class of related customer, the methodology used to determine a related customer’s share of the distribution pool;
(c) the timing of the distribution;
(d) details of how the distribution was made to related customers;
(e) any terms, conditions or obligations associated with the distribution.
(2) Details, in relation to forecast distributions to be made by the Part 7 operator to related customers during the period for which approval or determination is sought, including:
(a) the amount of the distribution pool and the source of the reserve or surplus from which the distribution is to be drawn;
(b) for each class of related customer, the methodology to be used to determine a related customer’s share of the distribution pool;
(c) the timing of the distribution;
(d) details of how the distribution is to be made to related customers;
(e) any terms, conditions or obligations to be associated with the distribution.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
The
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
ad = added or inserted | o = order(s) |
am = amended | Ord = Ordinance |
amdt = amendment | orig = original |
c = clause(s) | par = paragraph(s)/subparagraph(s) |
C[x] = Compilation No. x | /sub‑subparagraph(s) |
Ch = Chapter(s) | pres = present |
def = definition(s) | prev = previous |
Dict = Dictionary | (prev…) = previously |
disallowed = disallowed by Parliament | Pt = Part(s) |
Div = Division(s) | r = regulation(s)/rule(s) |
ed = editorial change | reloc = relocated |
exp = expires/expired or ceases/ceased to have | renum = renumbered |
effect | rep = repealed |
F = Federal Register of Legislation | rs = repealed and substituted |
gaz = gazette | s = section(s)/subsection(s) |
LA = | Sch = Schedule(s) |
LIA = | Sdiv = Subdivision(s) |
(md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
effect | SR = Statutory Rules |
(md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
cannot be given effect | SubPt = Subpart(s) |
mod = modified/modification | |
No. = Number(s) | commenced or to be commenced |
Water Charge (Infrastructure) Rules 2010 | 11 Jan 2011 (F2011L00058) | 12 Jan 2011 (r 2) | |
Water Charge (Infrastructure) Amendment Rules 2017 | 7 Feb 2017 (F2017L00097) | 1 July 2017 (s 2) | — |
Water Charge Amendment Rules 2019 | 3 Apr 2019 (F2019L00521) | Sch 1: 1 July 2020 (s 2(1) item 1) | — |
| |||
| 29 June 2020 (F2020L00815) | 30 June 2020 (s 2(1) item 1) | — |
r 1............................................. | am F2019L00521 |
r 2............................................. | rep LA s 48D |
r 3............................................. | am F2017L00097; F2019L00521 |
r 4............................................. | rep F2019L00521 |
r 6A........................................... | ad F2019L00521 |
Part 2 heading............................. | rs F2019L00521 |
r 7............................................. | rs F2019L00521 |
r 8............................................. | am F2017L00097; F2019L00521 |
r 9............................................. | am F2019L00521 |
r 9A........................................... | ad F2019L00521 |
Part 3 heading............................. | am F2019L00521 |
r 10............................................ | am F2019L00521 |
Part 4......................................... | rs F2019L00521 |
r 11............................................ | rs F2019L00521 |
r 12............................................ | am F2017L00097 |
rs F2019L00521 | |
r 13............................................ | rs F2019L00521 |
r 14............................................ | rep F2017L00097 |
r 15............................................ | rs F2019L00521 |
Part 5......................................... | rep F2017L00097 |
r 16............................................ | repF2017L00097 |
r 17............................................ | rep F2017L00097 |
r 18............................................ | rep F2017L00097 |
r 19............................................ | rep F2017L00097 |
r 20............................................ | repF2017L00097 |
r 21............................................ | repF2017L00097 |
r 22............................................ | rep F2017L00097 |
Part 6 heading............................. | am F2019L00521 |
r 23............................................ | rs F2019L00521 |
r 23A......................................... | ad F2019L00521 |
r 23B......................................... | ad F2019L00521 |
r 23C......................................... | ad F2019L00521 |
r 23D......................................... | ad F2019L00521 |
Division 2 heading ..................... | am F2019L00521 |
r 24............................................ | rs F2019L00521 |
r 24A......................................... | ad F2019L00521 |
r 25............................................ | rs F2019L00521 |
r 26............................................ | am F2019L00521 |
r 27............................................ | am F2019L00521 |
r 28............................................ | am F2019L00521 |
r 29............................................ | am F2019L00521 |
r 30............................................ | rs F2019L00521 |
r 31............................................ | am F2019L00521 |
r 32............................................ | rs F2019L00521 |
r 33............................................ | am F2019L00521 |
Division 3 heading...................... | am F2019L00521 |
r 34............................................ | am F2019L00521 |
r 35............................................ | am F2019L00521 |
r 36............................................ | am F2019L00521 |
r 37............................................ | am F2019L00521 |
r 38............................................ | am F2019L00521 |
r 39............................................ | am F2019L00521 |
r 40............................................ | am F2019L00521 |
r 41............................................ | am F2019L00521 |
r 42............................................ | am F2019L00521 |
r 43............................................ | am F2019L00521 |
r 43A......................................... | ad F2019L00521 |
r 44............................................ | am F2019L00521 |
Part 7 heading............................. | am F2019L00521 |
r 45............................................ | am F2019L00521 |
Division 2 heading...................... | am F2019L00521 |
r 46............................................ | am F2019L00521 |
r 47............................................ | am F2019L00521 |
r 48............................................ | am F2019L00521 |
r 49............................................ | am F2019L00521 |
r 50............................................ | am F2019L00521 |
r 51............................................ | am F2019L00521 |
r 52............................................ | rs F2019L00521 |
r 53............................................ | am F2019L00521 |
r 54............................................ | am F2019L00521 |
r 55............................................ | rs F2019L00521 |
Part 9......................................... | rep F2019L00521 |
r 58............................................ | rep F2019L00521 |
r 59............................................ | rep F2019L00521 |
r 60............................................ | rep F2019L00521 |
r 61............................................ | rep F2019L00521 |
r 62............................................ | rep F2019L00521 |
r 63............................................ | rep F2019L00521 |
r 64............................................ | rep F2019L00521 |
r 65............................................ | rep F2019L00521 |
r 66............................................ | rep F2019L00521 |
r 67............................................ | rep F2019L00521 |
r 68............................................ | rep F2019L00521 |
r 69............................................ | rep F2019L00521 |
Part 10....................................... | ad F2019L00521 |
r 70............................................ | ad F2019L00521 |
r 71............................................ | ad F2019L00521 |
r 72............................................ | ad F2019L00521 (as am by F2020L00815) |
r 73............................................ | ad F2019L00521 |
r 74............................................ | ad F2019L00521 (as am by F2020L00815) |
r 75............................................ | ad F2019L00521 |
r 76............................................ | ad F2019L00521 |
r 77............................................ | ad F2019L00521 |
Part 11....................................... |
ad F2019L00521 | |
r 78............................................ | ad F2019L00521 |
r 79............................................ | ad F2019L00521 |
r 80............................................ | ad F2019L00521 |
r 81............................................ | ad F2019L00521 |
r 82............................................ | ad F2019L00521 |
r 83............................................ | ad F2019L00521 |
Schedule 1 | am F2019L00521 |
c 1AA........................................ | ad F2019L00521 |
c 2............................................. | am F2019L00521 |
c 3............................................. | am F2019L00521 |
c 4............................................. | rs F2019L00521 |
c 5............................................. | am F2019L00521 |
c 6............................................. | am F2019L00521 |
c 7 ............................................ | am F2019L00521 |
c 8 ............................................ | am F2019L00521 |
c 9 ............................................ | am F2019L00521 |
c 10........................................... | am F2019L00521 |
c 11........................................... | am F2019L00521 |
c 12........................................... | am F2019L00521 |
c 1............................................. | am F2019L00521 |
c 2............................................. | am F2019L00521 |
c 3............................................. | ad F2019L00521 |
c 1............................................. | am F2019L00521 |
c 3............................................. | am F2019L00521 |
c 4............................................. | am F2019L00521 |
Schedule 4.................................. | rep F2019L00521 |
Schedule 5.................................. | rep F2019L00521 |
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0
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