Legal Comment by Mark Illidge

July / August 2008

While the new Water Supply (Safety and Reliability) Act 2008 (‘the Act’) may not have immediate implications for most consumers in the Hinterland, the Act has groundbreaking powers to address the quality and continuity of supply of recycled water and drinking water in South-East Queensland. Provisions from the Water Act 2000 (Qld) relating to infrastructure and service have been transferred into the new Act, and the Department of Natural Resources and Water, through the Office of the Water Supply Regulator, now regulates supply.

The Act applies to major recycling plants and town water supplies - not to water recycling operations at individual homes. Providers of recycled water need to produce Recycled Water Management Plans for approval by the regulator. If in the future, recycled water is on the menu as drinking water, the provider will also need to prepare a validation program for approval. The program will document how the recycled water will conform to drinking water quality.

Drinking water service providers are required to supply water that is not ‘unsafe’. They will operate under an approved Drinking Water Quality Management Plan which is assessed against water quality criteria prescribed under the Public Health Act 2005 (Qld).

Both recycled and drinking water providers are obliged to notify the regulator of any incidence where production quality is inconsistent with the relevant plan. Substantial fines can be imposed if a provider operates without an approved plan, fails to comply with the conditions of the plan, or fails to comply with a direction of the regulator.

The Act provides limited liability protection for providers. However the onus is on them to prove that they acted reasonably and without negligence, and in some cases that an event was beyond their control. The State now carries the can for public health risks associated with the supply of drinking water by providers covered by the Act (not Local Government, as was previously the case).

The Act also gives the regulator the power to declare certain infrastructure ‘critical water infrastructure’. These plants must give notice to the regulator within certain timeframes if they intend to permanently cease supply. In some situations the regulator can take over the operation of the infrastructure to ensure the public interest is met.

The Act commenced on 1 July 2008, although there are transitional arrangements to allow providers time to address any foreseen inadequacies and/or seek exemptions based on their risk profile.

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