Northern Regional Water (Arrangements) Act 1997

Northern Regional Water (Arrangements) Act 1997

An Act to make alternative arrangements for the supply of bulk water formerly undertaken by the Rivers and Water Supply Commission and certain councils in the northern region, to amend the Local Government (Building and Miscellaneous Provisions) Act 1993 and to repeal the North Esk Regional Water Act 1960 and the West Tamar Water Act 1960

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Northern Regional Water (Arrangements) Act 1997 .

2.   Commencement

This Act commences on 1 July 1997.

3.   Interpretation

In this Act, unless the contrary intention appears –

Authority means the Esk Water Authority established as a joint authority under section 38 of the Local Government Act 1993 ;

commencement day means the day on which this Act commences;

Commission means the Rivers and Water Supply Commission;

liabilities includes all liabilities, duties and obligations, whether actual, contingent or prospective;

participating council means a council that, together with any other council or councils, establishes the Authority;

prescribed obligations and liabilities means –

(a) obligations and liabilities of the Commission arising from the administration of a repealed Act; or

(b) obligations and liabilities of a participating council arising from the administration of a bulk water scheme;

prescribed property means –

(a) an estate or interest in land of the Commission used exclusively or mainly in operating a bulk water scheme under a repealed Act; or

(b) money or investments derived from, or other property of the Commission used exclusively or mainly in, operating a bulk water scheme under a repealed Act; or

(c) an estate or interest in land of a participating council used exclusively or mainly in operating a bulk water scheme; or

(d) money or investments derived from, or other property of a participating council used exclusively or mainly in, operating a bulk water scheme;

property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property and includes money, documents, securities, choses in action and other rights;

relevant date means the date specified in a notice under this Act as the date on which the notice takes effect;

repealed Act means the North Esk Regional Water Act 1960 or the West Tamar Water Act 1960 ;

rights includes all rights, powers, privileges and immunities, whether actual, contingent or prospective;

State Service employee means an employee within the meaning of the Tasmanian State Service Act 1984 ;

transferred employee means a person who becomes an employee of the Authority by the operation of Part 3 .

4.   Act binds Crown

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

PART 2 - Transfer of property, rights and liabilities

5.   Transfer of property, &c., to Authority

(1)  The Minister may, by notice published in the Gazette –

(a) transfer any prescribed property or prescribed obligations and liabilities to the Authority or a participating council; and

(b) provide for any matter that is incidental to that transfer.

(2)  On the day specified in a notice made under subsection (1)  –

(a) the property specified in, and transferred by, the notice vests in the Authority or a participating council; and

(b) the prescribed obligations and liabilities specified in, and transferred by, the notice become the obligations and liabilities of the Authority or a participating council.

(3)  A notice under subsection (1) is not a statutory rule for the purposes of the Rules Publication Act 1953 .

6.   Construction of instruments

(1)  This section applies to an instrument that –

(a) arises from the administration of a repealed Act by the Commission or from the administration of a bulk water scheme by a participating council; and

(b) relates to prescribed obligations and liabilities or to prescribed property; and

(c) was in force immediately before the relevant date; and

(d) contains a reference to the Commission or to a participating council.

(2)  Unless the context or subject-matter of an instrument to which this section applies otherwise indicates or requires, the instrument has effect on and from the relevant date as if –

(a) the reference to the Commission or a participating council were a reference to the Authority; or

(b) if the case so requires, the reference to the Commission or a participating council included a reference to the Authority.

7.   Continuation of proceedings

(1)  This section applies to legal or other proceedings relating to prescribed property or prescribed obligations and liabilities that are transferred to the Authority under section 5 .

(2)  Any legal or other proceedings to which this section applies that might, before the relevant date, have been continued or instituted by or against the Commission or a participating council may, on and after that date, be continued or instituted by or against the Authority.

(3)  A judgment or order of a court obtained in legal proceedings to which this section applies, where the proceedings are brought by or against the Commission or a participating council, may be enforced by or against the Authority on or after the relevant date.

8.   Powers of Authority in respect of matters arising under this Part

(1)  This section applies to debts, money, claims, securities and charges relating to prescribed property or prescribed obligations and liabilities that are transferred to the Authority under section 5 .

(2)  On and after the relevant date, the Authority may –

(a) in addition to pursuing any other remedies or exercising any other powers that may be available to it, pursue the same remedies for the recovery of debts, money and claims to which this section applies that are payable to, or recoverable by, the Commission or a participating council and for the prosecution of proceedings relating to any such debts, money or claims as the Commission or a participating council might have done but for the enactment of this section; and

(b) enforce and realise any security or charge to which this section applies and which is existing immediately before the relevant date in favour of the Commission or a participating council and may exercise any powers conferred under the security or charge on the Commission or a participating council as if it were a security or charge in favour of the Authority.

9.   Contracts and agreements

(1)  This section applies to a contract, agreement, arrangement or undertaking entered into by –

(a) the Commission for the purposes of a repealed Act; or

(b) a participating council in the operation of a bulk water scheme –

and which relates to prescribed property or prescribed obligations and liabilities that are transferred to the Authority under section 5 .

(2)  A contract, agreement, arrangement or undertaking to which this section applies, if not executed, discharged or otherwise terminated before the relevant date, is taken to be a contract, agreement, arrangement or undertaking entered into by the Authority.

(3)  A person who is a party to a contract or agreement to which this section applies is not entitled to terminate that contract or agreement by reason only of a transfer under this Part of any property, obligation or liability to which that contract relates.

10.   Exemption from tax for documents under this Part

(1)  In this section,

State tax means application or registration fees, stamp duty or any other tax, duty, fee or charge imposed by any law of Tasmania.

(2)  State tax is not payable in respect of any document prepared for the transfer of the whole or any part of the property, rights or liabilities of the Commission or a participating council under this Part.

11.   Indemnity by Authority

The Authority must indemnify –

(a) the State against any liability, whether actual or contingent, arising from any thing done or omitted to be done by the Commission before the commencement day in operating a bulk water scheme under a repealed Act; and

(b) a participating council against any liability, whether actual or contingent, arising from any thing done or omitted to be done by the council in operating a bulk water scheme before the commencement day.

12.   Winding-up of Authority and sale, &c., of assets

(1)  The Authority may be wound up –

(a) at the direction of the Minister responsible for the administration of the Local Government Act 1993 ; and

(b) on the decision of all the participating councils, within the meaning of section 38 of that Act, and with the consent of that Minister.

(2)  The Authority must not sell or dispose of the whole or a substantial part of its assets unless it has first obtained the consent of the Treasurer and the Minister responsible for the administration of the Local Government Act 1993 .

(3)  A direction or consent under this section is of no effect until it is approved by both Houses of Parliament.

(4)  A direction or consent under this section is approved by a House of Parliament –

(a) when the House passes a motion approving the direction or consent; or

(b) at the end of 5 sitting days after the direction or consent was laid before the House, if no notice of a motion to disapprove the consent is before the House; or

(c) if such a notice is before the House at the end of that period, when the first of the following events occurs:

(i) the notice is withdrawn;

(ii) the motion is negatived;

(iii) a further period of 5 sitting days ends.

(5)  This section has effect notwithstanding section 38(10) of the Local Government Act 1993 .

13.   State entitled to proceeds of disposal or winding-up

(1)  If before 1 July 2002 the Authority is wound up or it disposes of the whole or a substantial part of its assets, the whole or a part of the net proceeds of the disposal or winding-up is to be paid into the Consolidated Fund in accordance with the table in Schedule 1 .

(2)  The Minister and the Treasurer jointly may determine that the whole or part of the net proceeds are not to be paid under subsection (1) .

(3)  Where any property of a participating council has been transferred to the Authority under section 5, the Treasurer must pay to the council an amount that bears the same proportion to the amount paid into the Consolidated Fund under subsection (1) as the value of the property of the council transferred to the Authority bears to the value of all the property transferred to the Authority under this Act.

PART 3 - Staff of Commission

14.   Existing staff of Commission, &c., to be transferred

(1)  On the commencement day –

(a) all State Service employees who were appointed or employed for the purposes of a repealed Act; and

(b) all persons employed by a participating council for the purposes of a bulk water scheme –

become employees of the Authority.

(2)  On the commencement day –

(a) the Authority becomes the employer of each transferred employee; and

(b) that employee ceases to be a State Service employee and the Tasmanian State Service Act 1984 ceases to apply in relation to that employee or, as the case may require, that employee ceases to be employed by the participating council –

but no compensation is payable to the employee by reason of that fact.

(3)  A transferred employee –

(a) is taken to have been employed by the Authority for the same remuneration as he or she was receiving immediately before the commencement day; and

(b) except where an award, agreement or any other law otherwise provides, retains all existing and accrued rights relating to leave as if service as an employee of the Authority were a continuation of his or her service under the Tasmanian State Service Act 1984 or, as the case may require, as an employee of a participating council; and

(c) may claim those rights against the Authority.

(4)  The period of service of a transferred employee under the Tasmanian State Service Act 1984 or, as an employee of a participating council, is taken to be service as an employee of the Authority.

(5)  Nothing in subsection (3) or (4) prevents any of the terms or conditions of employment of a transferred employee being altered by an award, agreement or any other law having effect after the commencement day.

(6)  The Long Service Leave (State Employees) Act 1994 continues to apply to a transferred employee who, immediately before the commencement day, was employed by the Commission unless he or she, by notice in writing given to the Authority, elects that that Act is not to apply to him or her.

15.   Superannuation

(1)  In this section –

contributor means a contributor within the meaning of the Retirement Benefits Regulations 1994 ;

eligible employee means an eligible employee within the meaning of the Retirement Benefits Regulations 1994 ;

transfer arrangement means a transfer arrangement within the meaning of the Retirement Benefits Regulations 1994 .

(2)  Within the period of 6 months after the commencement day or a longer period determined by the Retirement Benefits Fund Board, a transferred employee who, immediately before the commencement day –

(a) was appointed or employed for the purposes of a repealed Act; and

(b) was a contributor or an eligible employee –

must notify the Board and the Authority, in writing, as to whether or not he or she elects to continue as a contributor or an eligible employee.

(3)  A transferred employee referred to in subsection (2) continues as a contributor or an eligible employee until whichever of the following occurs earlier:

(a) the expiration of the period referred to in that subsection;

(b) the day on which an election referred to in that subsection takes effect.

(4)  On the expiration of the period referred to in subsection (2) , a transferred employee referred to in that subsection who elects not to continue as a contributor or an eligible employee, or fails to make an election under that subsection for the purposes of the Retirement Benefits Act 1993  –

(a) is taken to have ceased to be –

(i) a contributor as a result of a transfer arrangement; or

(ii) an eligible employee; and

(b) is entitled to a lump sum benefit in accordance with that Act.

(5)  Where a transferred employee elects to continue as a contributor or an eligible employee, he or she is taken to be a contributor or an eligible employee.

(6)  The Authority must make adequate provision to meet its liability under the Retirement Benefits Act 1993 to pay pension and other benefits in respect of all transferred employees and former employees of the Commission.

(7)  The Authority must, when so required by the Minister administering the Retirement Benefits Act 1993 or the Retirement Benefits Fund Board, provide such information as may be required for any actuarial review of any of its liabilities under the Retirement Benefits Act 1993 .

PART 4 - Miscellaneous

16.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Without limiting the generality of subsection (1) , the regulations may –

(a) contain provisions of a savings or transitional nature consequent on the enactment of this Act, including the interpretation of references to the Commission; and

(b) modify the application of Part 2 to references to the Commission or a participating council in instruments and documents.

(3)  A provision referred to in subsection (2)(a) may, if the regulations so provide, take effect from the commencement of this Act or a later day.

17.   Repeal of North Esk Regional Water Act 1960 and the West Tamar Water Act 1960 , &c.

The following Acts are repealed:

(a) North Esk Regional Water Act 1960

(b) North Esk Regional Water Act 1974

(c) North Esk Regional Water Act 1975

(d) West Tamar Water Act 1960

18.    Local Government (Building and Miscellaneous Provisions) Act 1993 amended

Sections 217 and 224 of the Local Government (Building and Miscellaneous Provisions) Act 1993 are repealed.

19.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Primary Industry and Fisheries; and

(b) the Department responsible to the Minister for Primary Industry and Fisheries in relation to the administration of this Act is the Department of Primary Industry and Fisheries.

SCHEDULE 1 - Proceeds of disposal or winding-up payable to consolidated fund

Section 13