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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to provide a framework for the management and operation of shared
infrastructure for irrigation or drainage purposes associated with primary
production in the State; to make related amendments to the Natural Resources
Management Act 2004; to repeal the Irrigation Act 1994; and
for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
Part 2—Establishment, amalgamation and dissolution of
trusts
Division 1—Establishment of
trust
4 Application to establish a trust
5 Establishment of
trust
6 Rules
7 Manner in which contracts may be made
Division 2—Members
8 Members (including
presiding member and deputy presiding member)
9 Rights and liabilities of
membership
10 Calling of meetings
11 Procedures at meetings
12 Voting
at meetings
Division 3—Amalgamation of
trusts
13 Amalgamation of trusts
Division 4—Dissolution of
trusts
14 Dissolution on application
15 Dissolution on Minister's
initiative
16 Disposal of property on dissolution
Part 3—Management of trusts
Division 1—Board of management
17 Board of
management
18 Delegation
Division 2—Accounts and audit
19 Accounts to
be kept
20 Preparation of financial statements
21 Accounts etc to be laid
before annual general meeting
Division
3—Committees
22 Committees
Part 4—Functions and powers of irrigation
trusts
Division 1—Functions of trusts
23 Functions
of trusts
Division 2—Powers of trusts
24 Powers of
trusts
25 Further powers of trusts
26 Delivery of water or supply of
drainage to other persons
27 Supply or delivery of water for other
purposes
28 Drainage of other water
Division 3—Irrigation rights, water entitlements and
trading
29 Fixing of irrigation rights
30 Surrender or transfer of
water available under irrigation rights
31 Surrender or transfer of
irrigation rights
32 Transformation of irrigation rights
33 Trust may
determine to devolve water licence
34 Promotion of water trades
Division 4—Other matters
35 Power to
restrict supply or to reduce water made available by trust
36 Power of
delegation
37 Appointment of authorised officers
38 Powers of authorised
officers
39 Hindering etc persons engaged in the administration of this
Act
Part 5—Protection and facilitation of
systems
40 Protection and facilitation of systems
Part 6—Charges for irrigation and
drainage
Division 1—Declaration of
charges
41 Charges
42 Declaration of water supply
charges
43 Minimum amount
44 Drainage charge
45 Determination of area
for charging purposes
46 Interest
47 Notice of resolution for
charges
48 Minister's approval required
49 Related matters
Division 2—Recovery of charges
50 Liability
for charges
51 Recovery rights
52 Sale of land for non-payment of
charges
53 Trust may remit interest and discount charges
Part 7—Financial provisions
54 Trust's power
to borrow etc
Part 8—Appeals
55 Appeals
56 Decision may
be suspended pending appeal
57 Appeal against proposal to dissolve
trust
58 Constitution of Environment, Resources and Development
Court
Part 9—Miscellaneous
59 Protection from
liability
60 Division of land
61 False or misleading
information
62 Protection of irrigation system etc
63 Unauthorised use of
water
64 Offences by bodies corporate
65 General defence
66 Proceedings
for offences
67 Evidentiary provisions
68 Service etc of
notices
69 Excluded matters
70 Regulations
Schedule 1—Related amendments, repeals and
transitional provisions
Part 1—Preliminary
1 Amendment
provisions
Part 2—Amendment of Natural Resources Management
Act 2004
2 Insertion of Chapter 7 Part 5A
Part 5A—Interaction with Irrigation
Acts
169A Interaction with Irrigation Act
2009
Part 3—Repeal of Act
3 Repeal of
Act
Part 4—Transitional
provisions
4 Interpretation
5 Continuation of trusts
6 Presiding
member and deputy presiding member
7 Boards of
management
8 Resolutions
9 Voting at meetings
10 Irrigation
rights
11 Charges and rates
12 Disposal of property on
dissolution—special arrangements
13 Other provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Irrigation Act 2009.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the Acts Interpretation Act 1915 does not
apply to this Act or a provision of this Act.
(1) In this Act, unless the contrary intention appears—
authorised officer means a person for the time being
appointed to be an authorised officer under this Act;
board of management or board means the board of
management of a trust;
channel includes a watercourse;
charging period means the period in relation to which an
irrigation trust has declared a water supply charge;
Commonwealth water rules means any rules under Part 4 of the
Water Act 2007 of the Commonwealth;
conveyance water means the water necessary to support the
delivery of water through an irrigation system;
drain includes to pump water from low lying land;
drainage system means a system of channels, pipes,
structures, fittings and equipment used in the drainage of irrigation water from
land and includes a tank, pond, dam or other facility for holding water that is
connected to such a system;
drainage system provided by a landowner means those parts of
a drainage system—
(a) that have been provided by a landowner, or a predecessor of a
landowner; or
(b) in relation to which a landowner, or a predecessor of a landowner, has
assumed responsibility for maintenance; or
(c) that a landowner is liable to maintain pursuant to an agreement or
arrangement with an irrigation trust or with a predecessor of an irrigation
trust;
drainage system provided by the trust means those parts of a
drainage system that are not parts of the drainage system provided by a
landowner;
irrigation right means an entitlement fixed by an irrigation
trust under Part 4 Division 3;
irrigation system means a system of channels, pipes,
structures, fittings and equipment used in the collection and delivery of water
for irrigating land and includes a tank, pond, dam or other facility for holding
water that is connected to such a system;
irrigation system provided by a landowner means those parts
of an irrigation system—
(a) that have been provided by a landowner, or a predecessor of a
landowner; or
(b) in relation to which a landowner, or a predecessor of a landowner, has
assumed responsibility for maintenance; or
(c) that a landowner is liable to maintain pursuant to an agreement or
arrangement with an irrigation trust or with a predecessor of an irrigation
trust;
irrigation system provided by the trust means those parts of
an irrigation system that are not parts of the irrigation system provided by a
landowner;
irrigation trust or trust means an irrigation
trust established under this Act;
irrigation water means water supplied or delivered through
the use of an irrigation system provided by an irrigation trust under this Act
for irrigating land;
land includes an interest in land;
landowner means an owner or occupier of land;
local newspaper, in relation to a notice that relates to an
irrigation trust, means a newspaper circulating in the locality in which an
irrigation or drainage system provided by the trust is situated;
owner of land means—
(a) in relation to land alienated from the Crown by grant in fee
simple—the holder of the fee simple;
(b) in relation to land held under a Crown lease or licence—the
lessee or licensee;
(c) in relation to land held under an agreement to purchase from the
Crown—the person entitled to the benefit of the agreement;
presiding member—see section 8;
public notice means a notice published in a local
newspaper;
serviced property means land—
(a) that is used to carry on the business of primary production and is
managed as a single undertaking for the purpose of carrying on that business;
and
(b) that is connected to an irrigation or drainage system provided by an
irrigation trust under this Act;
voting member means a member of a trust who is entitled to
vote at meetings of the trust;
watercourse means a river, creek or other natural watercourse
(whether modified or not);
water licence means a water licence under the Natural
Resources Management Act 2004 entitling the holder to take water from a
watercourse, lake or well.
(2) If an irrigation or drainage system extends to a point on land or on,
or near the boundary of, land and incorporates a valve, slide gate, sluice,
entry sump or other similar fitting at that point through which irrigation water
can be supplied to the land or water can be drained from the land, the land will
be taken to be connected to the irrigation or drainage system.
(3) If an irrigation trust reads a meter within 14 days before or
after the end of a charging period, the quantity of water supplied to the land
during that period and the next succeeding charging period will be determined on
the assumption that the reading had been taken on the last day of the first
mentioned charging period.
(4) For the purposes of this Act, 21 days notice of an intention to
propose a resolution of a trust will be taken to have been given if 21 days
or more before the resolution is passed written notice is given to every member
of the trust—
(a) setting out the text of the proposed resolution; and
(b) specifying the time and place of the meeting at which it is proposed
to move the resolution.
Part
2—Establishment, amalgamation and dissolution of
trusts
Division
1—Establishment of trust
4—Application to
establish a trust
(1) An application for the establishment of an irrigation trust must be
made to the Minister in a manner and form determined by the Minister by a person
duly authorised by 2 or more persons—
(a) who carry on the business of primary production; and
(b) who are seeking to establish an entity to provide, manage and operate
shared infrastructure—
(i) for the collection and delivery of water (irrigation systems);
or
(ii) for the drainage of land (drainage systems),
(or both).
(2) The application must be accompanied by—
(a) the prescribed fee; and
(b) such other information required by the regulations.
(3) The Minister may grant the application if satisfied—
(a) that the trust is to be established to provide an irrigation system or
a drainage system (or both) in connection with the business of primary
production conducted by persons who will become members of the trust;
and
(b) that the trust complies with any other requirements prescribed by the
regulations.
(4) Subsection (3)(a) does not prevent a trust delivering or draining
water under an agreement with a person who is not a member of the
trust.
(1) If the Minister decides to grant an application for the establishment
of an irrigation trust, the Minister will establish the trust by notice in the
Gazette.
(2) The notice must specify—
(a) the date on which the trust is established; and
(b) the name of the trust (which must be a distinctive name approved by
the Minister as part of the application process under this Act).
(3) An irrigation trust established under this section—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) can sue and be sued in its corporate name; and
(d) has the functions and powers assigned or conferred by or under this
Act or any other Act.
(4) If—
(a) an application for the establishment of an irrigation
trust—
(i) identifies real or personal property that is to vest in the trust on
its incorporation under this Act; and
(ii) verifies in the prescribed manner and form that any person who has a
prescribed interest in that property consents to the vesting; and
(b) the Minister identifies that property as being property to which this
subsection applies in the notice establishing the trust,
that property will, on incorporation, be vested in and held by the
irrigation trust (subject to any trusts that may affect that
property).
(5) The Registrar-General must—
(a) on the application of an irrigation trust in which any estate or
interest in land has vested under subsection (4); and
(b) on production of such duplicate instruments of title and other
documents as the Registrar-General may require,
register the vesting of that estate or interest in land in the
trust.
(1) An irrigation trust may have a set of rules relating to the
membership, management or operations of the trust.
(2) A set of rules of a trust—
(a) must comply with any prescribed requirements; and
(b) must not contain any provision that is contrary to or inconsistent
with this Act; and
(c) may provide for the imposition and payment of application and other
fees by members of the trust (including a fee to be paid by a person if or when
the person ceases to be a member of the trust); and
(d) may provide for or regulate the times at which irrigation water may be
used; and
(e) may provide for other matters to facilitate—
(i) the effective management of an irrigation or drainage system provided
by the trust; or
(ii) the efficient supply, delivery or use of water provided by an
irrigation system provided by the trust; or
(iii) the efficient drainage, management or disposal of water through a
drainage system provided by the trust; and
(f) may provide for such other matters as may be prescribed by the
regulations or expedient for the purposes of the trust.
(3) An alteration to the rules of a trust may be made by ordinary
resolution of the trust unless provision is otherwise made in the rules of the
trust.
(4) Subject to any provision in the rules of the trust or a resolution to
the contrary, an alteration to the rules of a trust comes into force at the time
that the alteration is passed.
(5) The rules of a trust bind the trust and the members of the
trust.
(6) It will not be presumed that a person dealing with a trust, or an
agent of a trust, has notice of the rules of the trust.
(7) A trust must, at the request of the Minister, furnish the Minister
with an up-to-date copy of the rules of the trust within a period specified by
the Minister at the time that the request is made.
Maximum penalty: $500.
7—Manner in which
contracts may be made
(1) Contracts may be made by or on behalf of an irrigation trust as
follows:
(a) a contract which, if made between private persons, would be required
to be in writing under seal may be made by the trust under its common
seal;
(b) a contract which, if made between private persons, would be required
to be in writing signed by the parties to be charged may be made on behalf of
the trust in writing by any person acting under its authority, express or
implied;
(c) a contract which, if made between private persons, would be valid
although made by parol only may be made by parol on behalf of the trust by any
person acting under its authority, express or implied.
(2) A contract may be varied or rescinded by or on behalf of an irrigation
trust in the same manner as it is authorised to be made.
8—Members
(including presiding member and deputy presiding member)
(1) On the establishment of an irrigation trust, the persons who
authorised the application under this Division become members of the
trust.
(2) Other persons who carry on the business of primary production may be
admitted as members of the trust by resolution of the trust or as provided by
the rules of the trust.
(3) A person ceases to be a member of a trust in any of the following
circumstances or as otherwise provided by this Act:
(a) if the trust resolves that the membership should be
discontinued—
(i) on the ground that the member has ceased on a permanent basis to carry
on the business of primary production that gives rise to his or her entitlement
to membership; or
(ii) on any other reasonable ground determined by the trust;
(b) if the member resigns;
(c) on death (subject to any provision made by the trust or by law for a
legal personal representative of the estate of a deceased member to continue to
exercise the rights or to manage the business of the deceased member);
(d) in the case of a member that is a body corporate—if the body is
dissolved.
(4) A trust—
(a) must have a presiding member of the trust; and
(b) may have a deputy presiding member of the trust,
appointed from its membership at a meeting of the trust.
(5) A trust may, by further resolution of the trust at a meeting of the
trust, remove a person from office under subsection (4).
(6) A person also ceases to hold office under subsection (4) if the
person ceases to be a member of the trust.
(7) The deputy presiding member of a trust (if any) may act as the
presiding member in the absence of the presiding member or during a vacancy in
the office of presiding member.
(8) If there is no deputy presiding member, a person selected by the trust
may act as the presiding member in the absence of the presiding member or during
a vacancy in the office of presiding member.
9—Rights and
liabilities of membership
(1) Membership of an irrigation trust does not confer on a member, except
as may be provided by this Act, any right, title or interest in any real or
personal property of the trust.
(2) Except as provided by this Act, a member of an irrigation trust is not
liable to contribute towards the payment of the debts and liabilities of the
trust or the costs, charges and expenses of a winding up of the trust.
(3) Subsection (2) does not apply in respect of debts or liabilities
incurred by or on behalf of the trust prior to incorporation.
(1) A meeting of an irrigation trust may be called at any time by the
presiding member, by a board of management of the trust, or by at least 10% of
the voting members of the trust.
(2) The presiding member must call a meeting of the trust (the annual
general meeting) at least once in each year.
(3) At least 7 days written notice specifying the time and place of
each meeting must be given to every member of the trust (subject to any other
requirements under another provision of this Act).
(1) The presiding member will preside at meetings of the trust or, in his
or her absence, a member chosen by the members present will preside.
(2) A quorum for a meeting of the trust is—
(a) one-third of the voting members of the trust or 10 voting members
whichever is the smaller number; or
(b) such other number (being not less than 2) as the trust may from time
to time determine.
(3) When determining whether a quorum is present at a meeting, both voting
members who are present at the meeting and those who are represented at the
meeting for the purposes of voting will be counted.
(4) Subject to this Act, a resolution will be carried if the value of the
votes supporting it exceeds the value of the votes against it but if the values
are equal the resolution will be carried if it is supported by the person
presiding at the meeting.
(5) 21 days notice must be given of a resolution that varies or
revokes a decision made by resolution of the trust within the preceding
12 months.
(6) Subject to this Act, a trust may determine its own
procedures.
(7) A trust must keep minutes of its proceedings.
(1) Subject to this section, a member of an irrigation trust is entitled
to vote at meetings of the trust.
(2) A member may nominate another person to attend and vote at meetings on
his or her behalf.
(3) If 2 or more persons are members of the trust with respect to the
same undertaking concerned with carrying on the business of primary production,
a person must be nominated by them all to vote.
(4) A nomination referred to in subsections (2) and (3) must be made
by written notice to the trust and may be revoked by the member, or all of the
members, by subsequent written notice to the trust.
(5) If a person who is not a member of the trust has been nominated by a
member or members to attend and vote at a meeting of the trust, that person must
be regarded as a member of the trust for the purposes of proceedings at the
meeting.
(6) Subject to subsection (7), the values of votes at meetings of the
trust will be in proportion to the respective water allocations to which the
members of the trust are entitled at any particular time on account of either or
both of the following:
(a) irrigation rights held by members of the trust;
(b) water licences held by members of the trust.
(7) Despite a preceding subsection, if the trust resolves to apply this
subsection, then the value of votes at a meeting of the trust will be set in
some other manner determined by the trust.
(8) A determination under subsection (7) may be based on or include
criteria that exclude a member from holding an entitlement to vote if the
member—
(a) does not own or occupy land to which irrigation water is supplied or
delivered that has an area that is at least equal to a minimum area determined
by the trust for the purposes of this subsection;
(b) does not have an entitlement to the supply or delivery of water that
is at least equal in volume to a minimum volume determined by the trust for the
purposes of this subsection.
(9) The basis for determining the values of votes can be changed but only
by resolution of the trust of which 21 days notice must be given.
(10) A resolution under subsection (7) must be supported by 80% or
more of the number of votes cast at a meeting of the trust.
Division
3—Amalgamation of trusts
(1) Any 2 or more irrigation trusts—
(a) may, by resolution of each trust, resolve to amalgamate; and
(b) may apply to the Minister for amalgamation as a single irrigation
trust.
(2) A resolution under subsection (1) must be supported by at least
two-thirds of the number of votes cast at a meeting of the trust.
(3) An application under subsection (1)—
(a) must be made to the Minister in a manner and form determined by the
Minister; and
(b) must be accompanied by—
(i) the prescribed fee; and
(ii) such other information required by the regulations.
(4) The Minister may approve the application if satisfied—
(a) that the requirements for amalgamation have been satisfied;
and
(b) that the trust complies with any other requirements prescribed by the
regulations.
(5) The Minister will establish a new irrigation trust in place of the
trusts that are amalgamating by notice in the Gazette.
(6) The notice must specify—
(a) the date on which the new trust is established; and
(b) the name of the trust (which must be a distinctive name approved by
the Minister as part of the application process under this Act).
(7) An irrigation trust established under this section—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) can sue and be sued in its corporate name; and
(d) has the functions and powers assigned or conferred by this
Act.
(8) On the date on which a trust is established under this
section—
(a) any irrigation trust that was a party to the application for
amalgamation is dissolved; and
(b) the property of the trusts that were parties to the application for
amalgamation becomes the property of the irrigation trust formed by the
amalgamation (subject to any trusts that may affect that property);
and
(c) the rights and liabilities (whether certain or contingent) of the
trusts that were parties to the application for amalgamation become rights and
liabilities of the irrigation trust formed by the amalgamation.
(9) The Registrar-General must—
(a) on the application of an irrigation trust in which any estate or
interest in land has vested by virtue of this section; and
(b) on production of such duplicate instruments of title and other
documents as the Registrar-General may require,
register the vesting of that estate or interest in land in the
trust.
(10) A reference in an instrument to a trust that is a party to an
amalgamation under this section is, after the amalgamation, to be construed
(subject to any provision in the instrument to the contrary) as a reference to
the irrigation trust formed by the amalgamation.
(11) If property vests by virtue of this section in an irrigation trust,
the vesting of the property, and any instrument evidencing or giving effect to
that vesting, are exempt from stamp duty.
Division
4—Dissolution of trusts
(1) The members of an irrigation trust may apply to the Minister for the
dissolution of the trust.
(2) The application—
(a) must be made in a manner and form determined by the Minister;
and
(b) be accompanied by the prescribed fee.
(3) The decision by a trust to dissolve must be made pursuant to a
resolution of the trust.
(4) A resolution under subsection (3) must be supported by 80% or
more of the number of votes cast at a meeting of the trust.
(5) If the Minister is satisfied that due application has been made, the
Minister may dissolve the trust by notice in the Gazette.
(6) The notice will operate from the date of publication or from a later
date specified in the notice.
(7) When the notice comes into operation—
(a) the trust is dissolved; and
(b) any water licence held by the trust—
(i) will vest in 1 or more persons determined or approved by the
Minister; or
(ii) will be dealt with in some other manner determined or approved by the
Minister,
subject to the operation of the Natural Resources Management
Act 2004.
(8) The Minister must consult with the Minister responsible for the
administration of the Natural Resources Management Act 2004 before
acting under subsection (7)(b).
(9) The notice may impose such terms and conditions as the Minister thinks
fit—
(a) on the members of the trust; and
(b) on other persons who own or occupy land that, immediately before the
dissolution of the trust, constitutes serviced property under this
Act.
15—Dissolution
on Minister's initiative
(1) The Minister may dissolve an irrigation trust in accordance with this
section if—
(a) in the Minister's opinion the trust—
(i) is unable to carry out its functions properly because of disagreements
between its members; or
(ii) is not carrying out its functions properly for any other reason;
or
(iii) without limiting the generality of subparagraphs (i) and (ii),
is not properly maintaining any irrigation and drainage systems provided by the
trust; or
(b) the trust is unable to pay its debts as they fall due; or
(c) the trust has failed to comply with a provision of this Act;
or
(d) the Minister is of the opinion that it is just and equitable that the
trust be wound up in the circumstances of the particular case.
(2) The Minister must serve notice on the trust of his or her intention to
dissolve the trust under this section—
(a) setting out the grounds for his or her proposed course of action;
and
(b) inviting the trust to make submissions to the Minister in relation to
the matter.
(3) The Minister must take into account submissions made under
subsection (2).
(4) The Minister may serve a notice of dissolution on the trust
if—
(a) 3 months have passed since the notice referred to in
subsection (2) was served on the trust; and
(b) 1 or more of the grounds for dissolution referred to in the
notice are still applicable.
(5) The Minister must publish the notice referred to in
subsection (4) in the Gazette and in a local newspaper.
(6) At the expiration of 3 months after service of the notice under
subsection (4)—
(a) the trust is dissolved; and
(b) any water licence held by the trust—
(i) will vest in 1 or more persons determined by the Minister;
or
(ii) will be dealt with in some other manner determined or approved by the
Minister,
subject to the operation of the Natural Resources Management
Act 2004.
(7) The Minister must consult with the Minister responsible for the
administration of the Natural Resources Management Act 2004 before
acting under subsection (6)(b).
16—Disposal
of property on dissolution
(1) On the dissolution of an irrigation trust under this Division, the
property, rights and liabilities of the trust vest in or attach to an irrigation
trust or trusts specified for that purpose by the Minister in the notice of
dissolution.
(2) If in the opinion of the Minister it is not practicable or appropriate
to vest the property and rights, or attach the liabilities, of a dissolved trust
in or to another trust, the property, rights and liabilities of the trust will
vest in or attach to, according to a determination of the
Minister—
(a) the Crown; or
(b) an agency or instrumentality of the Crown (including a
Minister).
(3) This section operates subject to any provision made by a preceding
section of this Division.
(4) In this section—
notice of dissolution means—
(a) in relation to a trust dissolved under section 14—the
notice in the Gazette under section 14(5);
(b) in relation to a trust dissolved under section 15—the
notice served on the trust under section 15(4).
Division 1—Board
of management
(1) Subject to this Act, an irrigation trust may appoint a board of
management of the trust to carry out the day to day operations of the trust and
to manage its general affairs.
(2) The members of a board of management of a trust must be members of the
trust.
(3) The presiding member of the trust will also be the presiding member of
a board of management of the trust.
(1) A board of management may delegate a function or power of the
board—
(a) to a member of the board; or
(b) to another person (including the person for the time being holding or
occupying a particular position) or body.
(2) A delegation under this section—
(a) must be made by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the board to act in any matter;
and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
An irrigation trust must cause proper accounts to be kept of its financial
affairs.
20—Preparation of
financial statements
(1) An irrigation trust must, as soon as practicable after the end of each
financial year, cause financial statements in respect of that financial year to
be prepared in accordance with recognised accounting standards and cause the
statements to be audited.
(2) An audit must be carried out by—
(a) a registered company auditor; or
(b) a firm of registered company auditors; or
(c) a member of the Australian Society of Certified Practising
Accountants; or
(d) a member of The Institute of Chartered Accountants in Australia;
or
(e) a member of the National Institute of Accountants.
(3) A member of a trust must not be appointed as auditor of the accounts
of the trust.
(4) An auditor of a trust has a right of access at all reasonable times to
the accounts and accounting records of the trust and is entitled to require from
any officer or employee of the trust or any other person such information and
explanations as he or she requires for the purposes of the audit.
(5) An officer or employee of a trust or other person must not, without
lawful excuse—
(a) refuse or fail to allow an auditor access, for the purposes of an
audit, to any accounts or accounting records of the trust in his or her custody
or control; or
(b) refuse or fail to give any information or explanation as and when
required by an auditor; or
(c) otherwise hinder, obstruct or delay an auditor in the exercise or
performance of a power or function of the auditor.
Maximum penalty: $5 000.
(6) An auditor must, on the completion of the audit, prepare a report on
the audit.
21—Accounts etc to
be laid before annual general meeting
(1) At each annual general meeting of an irrigation trust, the trust must
lay before the meeting—
(a) a copy of the audited financial statements of the trust for the
previous financial year and a copy of the auditors report; and
(b) a report prepared by the trust on the operations of the trust in the
previous financial year.
(2) At the request of the Minister or any member of the trust, the trust
must provide the Minister or member with a copy of the audited financial
statements, the auditors report and the report prepared by the trust in respect
of the financial year to which the request relates.
(1) An irrigation trust may establish committees (which may, but need not,
consist of or include members of the trust) to advise the trust on any aspects
of its functions, or to assist it in the performance of its functions.
(2) A board of management of an irrigation trust may establish committees
(which may, but need not, consist of or include members of the board of
management) to advise the board on any aspects of its functions, or to assist it
in the performance of its functions.
Part
4—Functions and powers of irrigation trusts
Division
1—Functions of trusts
(1) An irrigation trust has the following functions:
(a) to provide, maintain, operate and manage an irrigation system or
irrigation systems;
(b) to provide, maintain, operate and manage a drainage system or drainage
systems;
(c) such other functions as are specified or prescribed by or under this
or any other Act.
(2) An irrigation trust may operate—
(a) on the basis that some or all of the water supplied through an
irrigation system managed by the trust will be supplied under a water licence
held by the trust; or
(b) on the basis that the trust will deliver water to members of the trust
for the purposes of water licences held by the members (rather than under a
water licence held by the trust).
(3) An irrigation trust established after the commencement of this Act
must operate on the basis set out in subsection (2)(b).
(4) Subsections (2) and (3)—
(a) do not prevent the trust from delivering water to any person who holds
a water licence independently of the trust; and
(b) do not prevent an irrigation trust from holding 1 or more water
licences in order—
(i) to provide or manage any conveyance water; or
(ii) to provide or manage any water for the purposes of other services
provided by the trust.
(5) An irrigation trust may, in connection with the operation of
subsections (1), (2) and (4), set terms and conditions associated
with—
(a) the use of any irrigation system or drainage system provided by the
trust;
(b) the supply or delivery of water by the trust.
(6) An irrigation trust must—
(a) in determining terms or conditions on which water is supplied or
delivered to, or drained from, land; or
(b) in holding or dealing with any water licence,
ensure—
(c) that it complies with the other provisions of this Act; and
(d) that it is able to meet any requirements imposed under the Natural
Resources Management Act 2004; and
(e) that it is not acting in breach, or imposing any requirement that
would result in a person acting in breach, of any duty or other requirement
prescribed by or under the River Murray Act 2003; and
(f) that it complies with any requirements imposed by or under the
Water Act 2007 of the Commonwealth.
(7) An irrigation trust must, in the performance of its functions, take
all reasonable steps to ensure that it operates in a financially responsible
manner.
(8) Without limiting subsection (7), a trust must seek to raise and
maintain adequate capital to provide for infrastructure maintenance, replacement
and improvements and, depending on the scope of its operations and plans,
extensions and expansions.
(1) In order to carry out its functions an irrigation trust
may—
(a) construct or erect channels, embankments, roads, buildings or
structures, tanks, ponds, dams or other facilities for holding water or any
other works; and
(b) lay pipes; and
(c) install and operate pumps and other equipment; and
(d) control the flow of water in an irrigation or drainage channel or
pipe; and
(e) acquire any land; and
(f) inspect, maintain, repair, renew or replace any channel, pipe,
building, structure, fitting, equipment, tank, pond, dam or other facility
forming part of the irrigation or drainage system provided by the trust;
and
(g) clear any channel, pipe, fitting, equipment, tank, pond, dam or other
facility forming part of the irrigation or drainage system provided by the
trust; and
(h) inspect any channel, pipe, building, structure, fitting, equipment,
tank, pond, dam or other facility forming part of the irrigation or drainage
system provided by a landowner; and
(i) extract and remove soil or minerals from any land after first
consulting the owner of the land and having regard to his or her views;
and
(j) inspect, examine or survey land in connection with the planning,
design or construction of an irrigation or drainage system, or extensions to or
alterations of, an irrigation or drainage system and for that purpose the trust
may—
(i) fix posts, stakes or other markers on the land; and
(ii) dig trenches or sink test holes on the land to determine the nature
of the top soil and underlying strata; and
(iii) remove samples of any material from the land for analysis;
and
(k) enter or occupy any land for the purpose of exercising any powers of
the trust under this Act; and
(l) exercise any other powers that are incidental to the trust's powers or
that are reasonably necessary for carrying out the trust's functions.
(2) Subsection (1) does not limit or derogate from the provisions of
any other Act (including so as to require a permission, consent or authority in
order to take any step or to engage in any activity).
(3) A trust may acquire land pursuant to a contract with the owner of the
land or pursuant to the Land Acquisition Act 1969.
(4) A trust must not acquire land pursuant to the Land Acquisition
Act 1969 without the written approval of the Minister.
(5) A trust may grant a lease or licence over any land in its ownership or
possession.
(6) When entering or occupying land under this section the trust must
cause as little inconvenience to other users of the land as is reasonably
practicable.
(1) An irrigation trust may, pursuant to an agreement with the owner or
occupier of any serviced property, construct or extend an irrigation system or a
drainage system on the property for the distribution or drainage of
water.
(2) A trust may, in order to assist its members, purchase irrigation
equipment, components and tools for resale to its members.
26—Delivery of
water or supply of drainage to other persons
An irrigation trust may enter into an agreement with a person who is not a
member of the trust—
(a) to deliver water for the purpose of irrigating land; or
(b) to drain water from land,
by means of an irrigation system or drainage system provided and managed by
the trust.
27—Supply or
delivery of water for other purposes
(1) In addition to supplying or delivering water for other purposes, an
irrigation trust may supply or deliver water for domestic or other purposes
under an agreement with any other person.
(2) A trust must not supply or deliver water for domestic purposes if a
supply of water under the Waterworks Act 1932 is available for those
purposes.
In addition to draining irrigation water, an irrigation trust may drain any
other water from land.
Division
3—Irrigation rights, water entitlements and trading
29—Fixing of
irrigation rights
(1) This section applies in relation to an irrigation trust that holds
1 or more water licences for the purposes of supplying water to its members
(being members who rely on the trust to supply water under a water licence held
by the trust rather than by the member).
(2) An irrigation trust to which this section applies must fix an
entitlement (an irrigation right) in respect of each member of the trust who is
to receive water on account of a water licence held by the trust.
(3) An irrigation right will be fixed by resolution of the
trust.
(4) An irrigation right must be fixed on a fair and equitable basis after
having regard to—
(a) the nature or type of crops growing on relevant land; and
(b) such other matters considered relevant by the trust.
(5) An irrigation right—
(a) may be expressed as a volume or units (subject to the operation of the
Natural Resources Management Act 2004 and any reduction in the
amount of water that may be available to the trust under that Act); or
(b) may be constituted in some other manner authorised by the
regulations.
30—Surrender or
transfer of water available under irrigation rights
(1) The whole or any proportion of water available under an irrigation
right held by a member of a trust (the relevant member) is capable
of being—
(a) surrendered by the relevant member to the trust for such sum of money
or other consideration as may be agreed between the trust and relevant
member;
(b) transferred by the relevant member to another member of the trust for
such sum of money or other consideration as may be agreed between the
members;
(c) transferred by the trust acting at the request of the relevant member
to a person who is not a member of the trust.
(2) The following provisions apply in connection with the operation of
subsection (1):
(a) if a relevant member notifies the trust that the member wishes to
surrender water under subsection (1)(a), the trust must take reasonable
steps to come to a reasonable agreement on a sum of money or other consideration
to be paid under that subsection;
(b) a relevant member must not transfer water under subsection (1)(b)
without first notifying the trust of the proposed transfer in accordance with
any requirements specified by the trust;
(c) a trust must comply with a request under subsection (1)(c) within
a reasonable time (but is not to comply with such a request if the transfer
cannot take effect on account of the operation of the Natural Resources
Management Act 2004).
31—Surrender or
transfer of irrigation rights
(1) An irrigation right held by a member of an irrigation trust (the
relevant member) is capable of being—
(a) surrendered by the relevant member to the trust for such sum of money
or other consideration as may be agreed between the trust and the relevant
member;
(b) transferred by the relevant member to another member of the trust for
such sum of money or other consideration as may be agreed between the
members.
(2) The following provisions apply in connection with the operation of
subsection (1):
(a) if a relevant member notifies the trust that the member wishes to
surrender an irrigation right under subsection (1)(a), the trust must take
reasonable steps to come to a reasonable agreement on a sum of money or other
consideration to be paid under that subsection;
(b) a relevant member must not transfer an irrigation right under
subsection (1)(b) without first notifying the trust of the proposed
transfer in accordance with any requirements specified by the trust.
32—Transformation
of irrigation rights
(1) The whole or a part of an irrigation right held by a member of an
irrigation trust (the relevant member) may be permanently
transformed into a water licence held by the relevant member if—
(a) the member applies to the trust for the transformation in accordance
with any requirements specified by the trust (including as to the payment of a
specified application fee); and
(b) the member provides any security required by the trust; and
(c) the transformation so as to create a water licence held by the member
is able to take effect under the Natural Resources Management
Act 2004 and the member, in seeking the water licence, complies with
any relevant requirement under that Act.
(2) Any requirement specified under subsection (1)(a) or security
required under subsection (1)(b) must be consistent with the operation of
any Commonwealth water rules.
(3) Any security required under subsection (1)(b) must be reasonable
in the circumstances after taking into account the interests of the trust and
any other person who has an interest in the water licence held by the trust (but
must not unreasonably restrict or prevent trading in water
entitlements).
(4) If a water licence is to be issued on account of an application under
this section—
(a) an entitlement to an allocation of water that corresponds to the
irrigation right held by the relevant member will arise in connection with the
licence; and
(b) a variation must be made to the water licence held by the trust, and
to any other related entitlement,
subject to and in accordance with the Natural Resources Management
Act 2004 (and subject to taking into account the water available under
the provisions of that Act).
(5) Any process or outcome envisaged by this section will take effect
subject to any Commonwealth water rules.
33—Trust
may determine to devolve water licence
(1) An irrigation trust may, by resolution, determine to operate on the
basis that all irrigation rights held by members of the trust will be
permanently transformed into water licences held by the respective members (so
that the trust will deliver water to members for the purposes of water licences
held by the members (rather than under a water licence held by the trust after
taking into account any requirements of the trust in relation to conveyance
water)).
(2) If a water licence held by the trust is subject to an interest of
another person registered or recorded in relation to the licence under the
Natural Resources Management Act 2004, the trust must not pass a
resolution under subsection (1) without the consent of that
person.
(3) The processes and outcome envisaged by subsection (1), and the
requirement to obtain any consent under subsection (2), will take effect
subject to—
(a) any Commonwealth water rules; and
(b) the requirements of the Natural Resources Management
Act 2004 relating to the issue of water licences, water allocations and
other forms of entitlements; and
(c) any provision made by the regulations (which may include the
specification of circumstances where a consent is not required under
subsection (2)).
(4) Subject to the operation of the preceding subsections, if a resolution
is made under subsection (1)—
(a) each irrigation right held by a member will be permanently transformed
into a water licence held by the member; and
(b) the trust will no longer be capable of operating on the basis that
some or all of the water supplied to its members will be supplied under a water
licence held by the trust (subject to taking into account the operation of
section 23(4)).
(5) Without limiting subsection (3), an irrigation right held by a
member of the trust will not be capable of being transformed into a water
licence if the Minister responsible for the administration of the Natural
Resources Management Act 2004 determines that a water licence should
not be granted on a ground that applies under Chapter 7 Part 3 Division 1 of
that Act.
Without limiting the operation of any other provision of this Act, an
irrigation trust must not unreasonably restrict or prevent any activity
contemplated by this or any other Act (including the Water Act 2007 of
the Commonwealth) that will support the efficiency and scope of water
trades.
35—Power to
restrict supply or to reduce water made available by trust
(1) An irrigation trust may—
(a) restrict or suspend the supply or delivery of water; or
(b) reduce the amount of water available under an irrigation
right,
if—
(c) the water that is available to the trust cannot meet the demand;
or
(d) the water that is available to the trust is unsuitable for the purpose
for which it is to be supplied; or
(e) the trust is acting in response to a reduction in a water allocation
under the Natural Resources Management Act 2004; or
(f) the trust is unable to provide sufficient conveyance water in
connection with the operation of an irrigation system; or
(g) the owner or occupier of the land in respect of which the action is
taken has—
(i) failed to pay charges or interest on charges under this Act;
or
(ii) contravened or failed to comply with a term or condition on which the
trust supplies or delivers water to, or drains water from, the land;
or
(iii) contravened or failed to comply with a condition imposed under this
Act; or
(iv) contravened or failed to comply with a provision of this Act or with
a direction of the trust under this Act; or
(h) the trust is unable to dispose of water draining into its drainage
system because of the degraded quality of the water.
(2) Subject to subsection (3), a trust may, in taking action under
subsection (1), reduce the amount of water available by different amounts
or proportions according to such factors as the trust thinks fit.
(3) A restriction or reduction in the amount of water supplied or
delivered by a trust in the circumstances envisaged by subsection (1)(e)
must, insofar as it applies to the members of the trust, be in proportion to the
amount of the reduction under the Natural Resources Management
Act 2004.
(4) A trust incurs no civil liability in respect of action taken by it
under this section.
(1) Subject to subsection (2), an irrigation trust may delegate a
function or power of the trust under this Act—
(a) to a board of management of the trust; or
(b) to a particular person or other body.
(2) A trust may not delegate a power under section 12 or
33.
(3) A delegation under this section—
(a) must be made by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the trust to act in any matter;
and
(d) is revocable at will.
(4) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
37—Appointment of
authorised officers
(1) An irrigation trust may appoint a person to be an authorised officer
under this Act.
(2) An authorised officer appointed under this Act must be issued with an
identity card—
(a) containing the person's name and a photograph of the person;
and
(b) stating that the person is an authorised officer for the purposes of
this Act.
(3) The identity card must be issued as soon as is reasonably practicable
after the appointment is made (but an authorised officer is not prevented from
exercising powers under this Act just because an identity card is yet to be
issued).
(4) An authorised officer must produce evidence of his or her appointment
by showing a copy of his or her notice of appointment, or by showing his or her
identity card for inspection, before exercising the powers of an authorised
officer under this Act in relation to any person.
(5) For the purposes of subsection (4), an authorised officer who
produces a copy of his or her notice of appointment is not required to produce
an identity card and vice versa.
38—Powers of
authorised officers
An authorised officer may, at any reasonable time, exercise any of the
following powers in relation to the operations of the irrigation trust by whom
he or she has been appointed:
(a) enter any land for the purpose of exercising his or her powers under
this section;
(b) inspect any material on land that the authorised officer believes to
be of a kind that has entered, or may enter, an irrigation or drainage system of
the trust and take samples of the material;
(c) inspect any channels, pipes, buildings, structures, fittings,
equipment, tanks, ponds, dams or other facilities for holding water comprising
part of an irrigation or drainage system or that are used in or in relation to
an irrigation or drainage of land;
(d) take photographs, films or video recordings;
(e) ask any person any question relating to the operation of an irrigation
or drainage system.
39—Hindering etc
persons engaged in the administration of this Act
(1) A person who—
(a) without reasonable excuse hinders or obstructs a person referred to in
subsection (2); or
(b) uses abusive, threatening or insulting language to a person referred
to in subsection (2); or
(c) fails to answer a question put by an authorised officer to the best of
his or her knowledge, information or belief; or
(d) falsely represents by words or conduct, that he or she is an
authorised officer,
is guilty of an offence.
Maximum penalty: $5 000.
(2) Subsection (1)(a) and (b) applies for the benefit
of—
(a) a person acting on behalf of an irrigation trust;
(b) an authorised officer.
(3) A person is not obliged to answer a question under this Division if
the answer would tend to incriminate him or her of an offence.
Part
5—Protection and facilitation of systems
40—Protection
and facilitation of systems
(1) A person must not—
(a) connect a channel or pipe to an irrigation or drainage system of an
irrigation trust; or
(b) place a structure or install equipment in, over or immediately
adjacent to a channel or pipe connected to an irrigation or drainage system of
an irrigation trust; or
(c) supply water supplied or delivered to him or her by an irrigation
trust under this Act to any other person,
unless he or she does so at the direction, or with the approval, of the
trust.
(2) A person must not use a method of distributing irrigation water in a
manner that is inconsistent with any determination or rule of an irrigation
trust.
(3) A person who is a landowner under this Act—
(a) must ensure that irrigation water does not drain or otherwise escape
onto or into adjoining land so as to cause a nuisance to the adjoining
landowner; and
(b) must maintain, and when necessary repair or replace an irrigation or
drainage system provided by the landowner; and
(c) must not block or impede the flow of water in any part of an
irrigation or drainage system except at the direction, or with the approval, of
the irrigation trust; and
(d) must, when necessary, clear channels and pipes of an irrigation or
drainage system provided by the landowner; and
(e) must ensure that channels and pipes on his or her land, including
those forming part of an irrigation or drainage system provided by an irrigation
trust, are protected from damage that is reasonably foreseeable.
(4) If, in the opinion of an irrigation trust, it is necessary or
desirable in the interests of supplying or delivering water efficiently to, or
draining water efficiently from, land, or in order to meet any duty or other
requirement under the Natural Resources Management Act 2004
(including a licence under that Act) or the River Murray Act 2003,
or in order otherwise to provide for the proper management of water, the trust
may by notice served on a landowner direct the landowner—
(a) to—
(i) construct or erect channels, embankments, structures, tanks, ponds,
dams or other facilities for holding water; or
(ii) lay pipes; or
(iii) install fittings or pumps or other equipment,
on his or her land; or
(b) to widen or deepen channels forming part of an irrigation or drainage
system provided by the landowner, to install fittings or equipment for or in
relation to irrigating the land, or to carry out any other work on the land;
or
(c) to provide a barrier that is impervious to water on the sides and bed
of a channel forming part of an irrigation or drainage system provided by the
landowner; or
(d) to undertake such other act or activity as is specified in the
notice.
(5) An irrigation trust may by notice served on a landowner direct the
landowner—
(a) to erect fences to keep stock or other animals away from channels or
pipes on the land; or
(b) to comply with the requirements of 1 or more of the other provisions
of this section.
(6) A notice under subsection (4) or (5) may specify—
(a) the dimensions and gradients of channels, pipes or other works;
and
(b) the dimensions, design, constituent materials and other specifications
of—
(i) the barrier to prevent or reduce seepage of water from a
channel;
(ii) pipes, structures (including fences) fittings or equipment.
(7) If a person fails to comply with a notice, the trust may enter the
relevant land and take the action specified in the notice and such other action
as the trust considers appropriate in the circumstances and the trust's costs
will be a debt due by the person to the trust.
(8) A person who contravenes or fails to comply with a provision of this
section or of a notice served under subsection (4) or (5) is guilty of an
offence.
Maximum penalty: $20 000.
Expiation fee: $750.
Part 6—Charges for
irrigation and drainage
Division
1—Declaration of charges
(1) An irrigation trust may impose a water supply charge or charges in
relation to the supply or delivery of water (or both) under this Act in
order—
(a) to recover its costs for providing that service or to enable it to
meet its other liabilities; and
(b) to provide for its maintenance and other costs and to provide for
future capital costs connected with the provision of irrigation systems under
this Act.
(2) An irrigation trust may impose a drainage charge or charges in
relation to the drainage or disposal of water (or both) under this Act in
order—
(a) to recover its costs for providing that service or to enable it to
meet its other liabilities; and
(b) to provide for its maintenance and other costs and to provide for
future capital costs connected with the provision of drainage systems under this
Act.
(3) An irrigation trust may fix different factors as the basis for water
supply or drainage charges in respect of different areas or locations or
according to other differentiating factors determined by the trust.
(4) A water supply charge may include a component for the recovery of
costs and other liabilities in relation to drainage and that component may be
applied generally or on a limited basis and vary according to other
differentiating factors determined by the trust.
42—Declaration of
water supply charges
(1) An irrigation trust may, in respect of a financial year or part of a
financial year, by notice published in a local newspaper, declare a water supply
charge or water supply charges based on 1, or a combination of 2 or
more, of the following:
(a) the fact that land is connected to an irrigation system of the trust;
or
(b) the volume of water supplied or delivered during the charging period
to which the declaration applies; or
(c) the area of the land to be irrigated; or
(d) such other factor or factors as the trust thinks fit.
(2) An irrigation trust may declare different charges—
(a) in respect of different areas;
(b) for water supplied for irrigation purposes, domestic purposes or other
purposes;
(c) depending on the quality of the water supplied or delivered.
(3) In the case of water supplied for irrigation purposes, the trust may
declare a basic charge in respect of a specific amount of water supplied or
delivered under an irrigation right or water licence and a further charge, or
series of charges, that increase as the volume of water supplied increases over
that amount.
(4) A water supply charge may be declared after the period to which it
relates has commenced.
(5) This section does not limit the operation of
section 41.
(1) An irrigation trust may declare a minimum amount that is payable in
respect of a water supply charge.
(2) Payment of the minimum amount must be credited against the water
supply charge.
(1) An irrigation trust may, in respect of a financial year or part of a
financial year by notice published in a local newspaper, declare a drainage
charge based on the area of land irrigated or drained or on the basis of the
volume of water supplied or delivered for irrigating the land.
(2) The trust may exempt an owner and occupier of land from payment of
drainage charges if water does not drain from the land into the drainage system
provided by the trust or if the quantity of water that drains into the system is
negligible.
(3) A drainage charge may be declared after the period to which it relates
has commenced.
(4) This section does not limit the operation of
section 41.
45—Determination
of area for charging purposes
For the purpose of calculating the amount of a water supply charge or a
drainage charge based on the area of land, the area of the land will be
determined to the nearest one-tenth of a hectare (0.05 of a hectare being
increased to the next one-tenth of a hectare).
(1) An irrigation trust may, in fixing a water supply charge or a drainage
charge, declare a rate of interest that will be applied if a charge is not paid
within a period specified by the trust.
(2) A rate of interest must not exceed any rate prescribed by the
regulations.
(3) A period from which interest will be payable must be not less than the
period prescribed by the regulations.
(4) Any interest applied under this section may be simple or compound
interest.
47—Notice of
resolution for charges
An irrigation trust must fix the factors on which water supply and drainage
charges are based and the amount of those charges by resolution of which
21 days notice has been given.
48—Minister's
approval required
(1) If a trust is indebted to the Crown, the Minister or 1 or more
other agencies or instrumentalities of the Crown in an amount that exceeds
$50 000 or in 2 or more amounts that together exceed $50 000, the
trust must not—
(a) declare a water supply charge or drainage charge; or
(b) fix a rate of interest for the late payment of charges,
without first obtaining the Minister's approval.
(2) Non-compliance with subsection (1) does not affect the validity
of a charge or rate of interest declared or fixed by a trust.
(1) Nothing in this Division prevents an irrigation trust from entering
into an agreement with a person for the supply or delivery of water, or the
drainage of land, for a cost or at a rate fixed or determined under the
agreement (rather than by the imposition of a charge under this
Division).
(2) To avoid doubt, the preceding sections of this Division do not apply
in relation to an amount payable under an agreement under
subsection (1).
(3) An irrigation trust must, in acting under this Division, ensure that
it complies with any requirements imposed by or under the Water
Act 2007 of the Commonwealth.
Division
2—Recovery of charges
(1) The following persons are jointly and severally liable for the payment
of charges and interest on charges:
(a) the owner and occupier of the land in respect of which water is
supplied or delivered, or is drained, as the case requires, at the date on which
the charges first became payable;
(b) a person who becomes an owner or occupier of the land after the
charges first became payable but before the liability to pay the charges and
interest is satisfied.
(2) Notice of the amount payable by way of charges, fixing the date on
which the amount becomes payable, must be served on the owner or occupier of the
land in respect of which the charges are payable.
(3) This section operates subject to—
(a) any Commonwealth water rules; and
(b) the provisions of any agreement between the trust and a person for the
supply or delivery of water, or the drainage of land.
(4) In this section—
charges means water supply and drainage charges and
includes—
(a) charges payable to an irrigation trust under an agreement with a
person who is not a member of the trust for the delivery of water to, or the
drainage of water from, the land;
(b) any other amount in which an owner or occupier of land is indebted to
an irrigation trust under this Act or under an agreement made under this
Act.
(1) Any charges and any accrued interest will be a charge on the land in
respect of which water is supplied or delivered, or is drained, in accordance
with a scheme established by the regulations.
(2) Subsection (1)—
(a) applies subject to any Commonwealth water rules; and
(b) does not apply to any charges (and associated interest) of a
prescribed kind.
(3) In addition, any charges that are not paid in accordance with a notice
under section 50, together with any interest, may be recovered by the
irrigation trust as a debt from a person who is liable for the payment of the
charges.
(4) Any action to recover any charges (and interest) as a debt does not
prejudice any action to recover any charges (and interest) as a charge on land,
and vice versa, but any amount sought to be recovered under 1 right must be
adjusted to take into account any amount actually recovered under the other
right.
52—Sale of land
for non-payment of charges
(1) If charges, or interest on charges, are a charge on land and have been
unpaid for 1 year or more, the irrigation trust may sell the
land.
(2) Before a trust sells land in pursuance of this section, it must serve
notice on the owner and occupier of the land—
(a) stating the period for which the charges or interest have been in
arrears; and
(b) stating the amount of the total liability for charges and interest
presently outstanding in relation to the land; and
(c) stating that if that amount is not paid in full within 1 month of
service of the notice (or such longer time as the trust may allow), the trust
intends to sell the land for non-payment of the charges or interest.
(3) A copy of a notice must be served on—
(a) the registered mortgagee or encumbrance of the land (if any);
and
(b) if the land is held from the Crown under a lease, licence or agreement
to purchase—the Minister responsible for the administration of the
Crown Lands Act 1929.
(4) If the outstanding amount is not paid in full within the time allowed
under subsection (2), the trust may proceed to sell the land.
(5) The sale will, except in the case of land held from the Crown under a
lease, licence or agreement to purchase, be by public auction (and the trust may
set a reserve price for the purposes of the auction).
(6) An auction under this section must be advertised on at least
2 separate occasions in a newspaper circulating generally throughout the
State.
(7) If, before the date of the auction, the outstanding amount and the
costs incurred by the trust in proceeding under this section are paid to the
trust, the trust must withdraw the land from auction.
(8) If—
(a) an auction fails; or
(b) the land is held from the Crown under a lease, licence or agreement to
purchase,
the trust may sell the land by private contract for the best price that it
can reasonably obtain.
(9) Any money received by the trust in respect of the sale of land under
this section will be applied as follows:
(a) firstly—in paying the costs of the sale and any other costs
incurred in proceeding under this section;
(b) secondly—in discharging the liability for charges and interest
and any other liabilities to the trust in respect of the land;
(c) thirdly—in discharging any liability to the Crown for rates,
charges or taxes, or any prescribed liability to the Crown in respect of the
land;
(d) fourthly—in discharging any liabilities secured by registered
mortgages, encumbrances or charges;
(e) fifthly—in discharging any other mortgages, encumbrances and
charges of which the trust has notice;
(f) sixthly—in payment to the owner of the land.
(10) If the owner cannot be found after making reasonable inquiries as to
his or her whereabouts, an amount payable to the owner must be dealt with as
unclaimed money under the Unclaimed Moneys Act 1891.
(11) If land is sold by a trust in pursuance of this section, an
instrument of transfer under the common seal of the trust will operate to vest
title to the land in the purchaser.
(12) The title vested in a purchaser under subsection (11) will be
free of—
(a) all mortgages and charges; and
(b) except in the case of land held from the Crown under lease or
licence—all leases and licences.
(13) An instrument of transfer passing title to land in pursuance of a
sale under this section must, when lodged with the Registrar-General for
registration or enrolment, be accompanied by a statutory declaration made by the
presiding member of the trust stating that the requirements of this section in
relation to the sale of the land have been observed.
(14) If it is not reasonably practicable to obtain the duplicate
certificate of title to land that is sold in pursuance of this section, the
Registrar-General may register the transfer despite the non-production of the
duplicate, but in that event he or she will cancel the existing certificate of
title for the land and issue a new certificate in the name of the
transferee.
(15) A reference in this section to land, or title to land, is, in
relation to land held from the Crown under lease, licence or agreement for
purchase, a reference to the interest of the lessee, licensee or purchaser in
the land.
(16) In this section—
charges means water supply and drainage charges and
includes—
(a) charges payable to an irrigation trust under an agreement with a
person who is not a member of the trust for the delivery of water to, or the
drainage of water from, the land;
(b) any other amount in which an owner or occupier of land is indebted to
an irrigation trust under this Act or under an agreement made under this
Act.
53—Trust may remit
interest and discount charges
(1) An irrigation trust may remit the whole, or part, of the amount of any
interest payable to the trust.
(2) An irrigation trust may discount charges to encourage early payment of
the charges.
54—Trust's power
to borrow etc
(1) An irrigation trust may borrow money or take advantage of any other
form of financial accommodation.
(2) In order to provide security for any money borrowed, or other
financial accommodation received, by it, a trust may—
(a) charge the whole or any part of its property (including its revenue
arising from water supply or drainage charges) by debenture, mortgage or bill of
sale or in any other manner; or
(b) enter into arrangements for the provision of guarantees or
indemnities.
(3) If a trust defaults in carrying out its obligations under a debenture
charged on revenue arising from water supply or drainage charges, the Supreme
Court may, on the application of a creditor or a trustee for debenture
holders—
(a) —
(i) direct the trust to appropriate a specified portion of its revenue to
the satisfaction of its obligations under the debenture; or
(ii) direct the trust to raise a specified amount by way of charges and
direct that the amount raised be applied towards satisfaction of the trust's
obligations under the debenture; and
(b) give such incidental or ancillary directions as may be necessary or
desirable.
(4) The rights of a creditor or trustee under subsection (3) are in
addition to any other right that exists independently of that
subsection.
(1) A person may appeal to the Environment, Resources and Development
Court against a decision of an irrigation trust—
(a) in relation to a decision to discontinue a membership of a trust under
section 8(3)(a)(ii); or
(b) in relation to the fixing of an irrigation right in respect of the
person; or
(c) directing the appellant to undertake an act or activity under Part 5;
or
(d) in relation to any other matter of a class prescribed by the
regulations for the purposes of this section.
(2) An appeal must be instituted within 1 month after the appellant
receives written notice of the decision appealed against or within such further
time as the Court considers to be reasonable in the circumstances.
(3) On an appeal the Court may—
(a) affirm or vary the decision appealed against or substitute any
decision that should have been made in the first instance;
(b) remit the subject matter of the appeal to the trust for further
consideration;
(c) make such incidental or ancillary order as the Court considers is
necessary or desirable.
56—Decision may be
suspended pending appeal
(1) If an irrigation trust or the Court is satisfied that an appeal
against a decision of the trust has been instituted under this Part, or is
intended, the trust or the Court may suspend the operation of the decision until
the determination of the appeal.
(2) A suspension granted under subsection (1) may be terminated by
the person or body that granted it at any time.
57—Appeal against
proposal to dissolve trust
(1) An irrigation trust or a member of an irrigation trust may appeal to
the Environment, Resources and Development Court against the Minister's proposal
to dissolve the trust under section 15.
(2) An appeal must be instituted within 1 month after notice of
dissolution of the trust is served on the trust or within such further time as
the Court considers to be reasonable in the circumstances.
(3) On an appeal the Court may—
(a) do 1 or more of the following:
(i) direct the Minister to withdraw the notice of dissolution;
(ii) give the Minister such other directions as the Court thinks
fit;
(iii) give the trust such directions as the Court thinks fit;
(iv) make such incidental or ancillary order as the Court considers is
necessary or desirable; or
(b) refuse to take any action in the matter.
58—Constitution of
Environment, Resources and Development Court
The following provisions apply in respect of the constitution of the
Environment, Resources and Development Court when exercising jurisdiction under
this Act:
(a) the Court may be constituted in a manner provided by the
Environment, Resources and Development Court Act 1993 or may, if the
Senior Judge of the Court so determines, be constituted of a Judge and
1 commissioner;
(b) the provisions of the Environment, Resources and Development Court
Act 1993 apply in relation to the Court constituted of a Judge and
1 commissioner in the same way as in relation to a full bench of the
Court;
(c) the Court may not be constituted of or include a commissioner
unless—
(i) in a case where only 1 commissioner is to sit (whether alone or
with another member or members of the Court)—the commissioner;
or
(ii) in any other case—at least 1 commissioner,
is a commissioner who has been specifically designated by the Governor as a
person who has expertise in irrigated farming or management of water
resources.
(1) A person incurs no civil liability for an honest act or omission in
the exercise or discharge, or purported exercise or discharge, by the person or
by an irrigation trust, board of management or committee of which he or she is a
member, of a power, function or duty under this Act.
(2) Subject to subsections (3) and (4), a liability that would but
for subsection (1), lie against the person referred to in that subsection,
lies instead against the relevant irrigation trust.
(3) A trust is not liable for loss or damage caused by, or resulting
from—
(a) rises or falls in the water level in the watercourse, aquifer or other
source from which it takes water for irrigation purposes or in the watercourse,
lake, lagoon, swamp, marsh or aquifer into which it drains water; or
(b) the escape of water from the irrigation or drainage system provided by
the trust except where the trust knew, or should have known, that water was
escaping or was likely to escape and failed, without reasonable excuse, to
prevent the escape; or
(c) the trust's failure to supply water in accordance with this Act if the
failure was caused by a break down in the irrigation system provided by the
trust, except where the trust knew, or should have known, of the break down, or
the likelihood of the break down occurring, and failed, without reasonable
excuse, to rectify or prevent it.
(4) An irrigation trust is not liable for loss or damage caused by, or
resulting from, any action—
(a) to meet any duty or other requirement under the Natural Resources
Management Act 2004 (including a licence under that Act) or the
River Murray Act 2003; or
(b) to further the objects of the River Murray Act 2003 or the
Objectives for a Healthy River Murray under that Act.
(1) The owner of land where an irrigation or drainage system of an
irrigation trust is situated may apply to the trust for its consent to divide
the land.
(2) The trust may give its consent subject to such conditions as it thinks
fit.
(3) Land may be divided without the consent of the trust but in that event
the following provisions apply:
(a) the trust has no obligation to extend any irrigation or drainage
system to a new allotment;
(b) a new allotment cannot be connected to an irrigation or drainage
system provided by the trust without the trust's approval;
(c) the division will not affect any irrigation right (unless the holder
of the irrigation right applies to the trust for a new right to be issued and an
appropriate adjustment made to the terms of the irrigation right);
(d) the trust may refuse to supply water to an allotment created by the
division if the water will pass through another allotment created by the
division or the water will be drained through another allotment created by the
division.
(4) This section does not derogate from any other Act or law relating to
the division of land.
61—False or
misleading information
A person who furnishes information to an irrigation trust under this Act
that is false or misleading in a material particular is guilty of an
offence.
Maximum penalty: $5 000.
62—Protection of
irrigation system etc
A person who, without lawful authority, interferes with any part of an
irrigation or drainage system or with any property of an irrigation trust used
in, or in connection with, the irrigation or drainage of land is guilty of an
offence.
Maximum penalty: $20 000.
Expiation fee: $750.
A person who takes water from the irrigation or drainage system of an
irrigation trust without being authorised to do so or uses water taken from an
irrigation system for an unauthorised purpose is guilty of an offence.
Maximum penalty: $20 000.
Expiation fee: $750.
64—Offences by
bodies corporate
If a body corporate is guilty of an offence against this Act, each member
of the governing body, and the manager, of the body corporate are guilty of an
offence and liable to the same penalty as is prescribed for the principal
offence.
It is a defence to a charge of an offence against this Act if the defendant
proves that the alleged offence was not committed intentionally and did not
result from any failure on the part of the defendant to take reasonable care to
avoid the commission of the offence.
Proceedings for an offence against this Act must be
commenced—
(a) in the case of an expiable offence—within the time limits
prescribed for expiable offences by the Summary Procedure
Act 1921;
(b) in any other case—within 2 years of the date on which the
offence is alleged to have been committed.
(1) An allegation by the prosecution in proceedings for an offence against
this Act that on a particular day, or during a particular period, the defendant
(or any other person) was or was not—
(a) the owner or occupier of a particular land; or
(b) authorised to take water for irrigation or other purposes under this
Act; or
(c) an authorised officer,
must, in the absence of proof to the contrary, be accepted as
proved.
(2) An allegation by an irrigation trust in proceedings for the recovery
of charges or other money as to—
(a) the amount of those charges or other money; or
(b) the ownership or occupation of land,
must, in the absence of proof to the contrary, be accepted as
proved.
(3) The production, in legal proceedings under this Act, of a paper that
purports to be a particular newspaper published on a particular day must be
accepted as evidence that the newspaper was published in that form on that
day.
(1) Subject to this Act, a notice may be served on, or given to, a person
in pursuance of this Act as follows:
(a) by giving it to the person or an agent of the person;
(b) by leaving it for the person with someone apparently over the age of
16 years at his or her place of residence or at any place at which he or
she carries on business;
(c) by posting it to the person at his or her last known
address;
(d) by fixing the notice in the prescribed manner in a prominent position
on the land to which the notice relates;
(e) where the notice is to be served on, or given to, the occupier of
land—by posting it addressed to "The Occupier" at the address for the
land.
(2) If a notice is to be served on, or given to, the owner of land and the
owner has died, the notice may be served on, or given to, the executor or
administrator of the owner's estate or, where an executor or administrator has
not been appointed, by fixing the notice in the prescribed manner in a prominent
position on the land to which the notice relates.
(3) A notice will be taken to have been served on, or given to, all of the
owners or occupiers of land if it is served on, or given to, 1 of the
owners or occupiers of the land.
The following matters are declared to be excluded matters for the purposes
of section 5F of the Corporations Act 2001 of the Commonwealth in
relation to the whole of the Corporations legislation to which Part 1.1A of that
Act applies:
(a) a trust;
(b) an act or omission of any person, body or other entity in relation to
a trust.
(1) The Governor may make such regulations as are contemplated by this Act
or as are necessary or expedient for the purposes of this Act.
(2) Without limiting the generality of subsection (1) the regulations
may—
(a) relate to—
(i) the provision and maintenance of any irrigation or drainage system;
or
(ii) the manner in which irrigation water may be used; or
(iii) maintaining or improving the quality of irrigation water;
or
(iv) the drainage and disposal of irrigation water;
(b) make provisions for, or in relation to, the assessment of the quantity
of irrigation or other water;
(c) provide for the payment and recovery of fees—
(i) for the installation, maintenance and testing of water meters or for
any other service provided by an irrigation trust; or
(ii) in relation to any other matter connected with the operation or
administration of this Act;
(d) prescribe fines not exceeding $5 000 for contravention of or
failure to comply with a regulation.
(3) A regulation under this Act—
(a) may make different provision according to the matters or circumstances
to which they are expressed to apply;
(b) may be of general or limited application;
(c) may provide that a matter or thing in respect of which regulations may
be made is to be determined according to the discretion of the Minister or any
other person or body prescribed by the regulations.
Schedule
1—Related amendments, repeals and transitional
provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Natural Resources Management
Act 2004
2—Insertion of
Chapter 7 Part 5A
Chapter 7—after Part 5 insert:
Part 5A—Interaction with Irrigation
Acts
169A—Interaction with Irrigation Act
2009
(1) The Minister may transfer a water licence, and deal with any related
entitlement under this Chapter, held by an irrigation trust to another trust or
a person or other body to give effect to any determination or approval of the
relevant Minister under Part 2 Division 4 of the Irrigation Act
2009.
(2) The Minister may allocate water transferred by an irrigation trust to
a person or other body under section 30 of the Irrigation Act 2009
to a person or body holding a water licence under this Act to give effect to the
operation of that section.
(3) The Minister may—
(a) grant a water licence to a person whose irrigation right is being
transformed into a water licence under section 32 or 33 of the
Irrigation Act 2009 unless the Minister considers that the water licence
should not be granted on a ground that applies under Part 3 Division
1;
(b) make adjustments to a water licence already held by a person whose
irrigation right is being transformed into a water licence under section 32
or 33 of the Irrigation Act 2009 on account of that
transformation.
(4) This section does not limit the operation or effect of any other
provision of this Act.
(5) A fee (if any) prescribed by the regulations is payable in respect of
any action taken by the Minister under this section (and the Minister may
decline to take the action unless or until the fee is paid).
Part 3—Repeal of Act
The Irrigation Act 1994 is repealed.
Part 4—Transitional provisions
In this Part—
relevant day means the day on which this Part comes into
operation;
relevant trust means a trust continued in existence under
clause 5(1);
repealed Act means the Irrigation
Act 1994.
(1) A trust constituted under the repealed Act and in existence
immediately before the relevant day continues as an irrigation trust under this
Act.
(2) A person who, immediately before the relevant day, is a member of a
relevant trust will continue as a member of the trust under this Act.
6—Presiding
member and deputy presiding member
(1) A person who is the presiding officer of a relevant trust immediately
before the relevant day will be taken to be the presiding member of the trust
under this Act on the relevant day.
(2) A person who is the deputy presiding officer of a relevant trust
immediately before the relevant day will be taken to be the deputy presiding
member of the trust under this Act on the relevant day.
A board of management (if any) of a relevant trust, as constituted under
the repealed Act immediately before the relevant day, will continue as the board
of management of the trust.
(1) Any resolution of a relevant trust in force and effect immediately
before the relevant day will continue to have effect for the purposes of this
Act on and after the relevant day.
(2) A resolution under subclause (1) may be varied or revoked on or
after the relevant day by—
(a) the trust; or
(b) a board of management of the trust.
The value of votes for a relevant trust within the ambit of section 22(7),
(8) or (9) of the repealed Act, as in operation immediately before the relevant
day, will continue for the purposes of this Act unless or until a resolution is
made to change those values under section 12 of this Act.
(1) Until otherwise resolved by the trust, an allocation of water (if any)
to which a member of a relevant trust is entitled under the repealed Act
immediately before the relevant day will constitute the irrigation right of the
member under this Act.
(2) Subclause (1) operates subject to the conditions of the trust's
water licence and any reduction in allocations imposed under the Natural
Resources Management Act 2004 or the Commonwealth water
rules.
(3) If, immediately before the relevant day, a relevant trust has not
fixed a water allocation in respect of irrigated properties in its district
under the repealed Act, the trust must fix an irrigation right in relation to
the relevant entitlement to receive water within 6 weeks after the relevant
day.
A charge or liability to pay interest, as it exists immediately before the
relevant day, and any process to impose or recover the charge or interest, will
continue to have effect under this Act.
12—Disposal of
property on dissolution—special arrangements
(1) This clause applies to a trust to which section 14A(3) of the repealed
Act applied before the commencement of this Act.
(2) On the dissolution of a trust to which this clause
applies—
(a) the owners of the land within the district that applied to the trust
under the repealed Act immediately before the relevant day are entitled to the
property and rights of the trust; and
(b) the liabilities of the trust attach directly to the owners of the land
referred to in paragraph (a) jointly and severally; and
(c) in the case of a trust dissolved under section 14, the owners of the
land are entitled to the property and rights of the trust and must contribute to
its liabilities in proportions specified in the notice under section
14(5);
(d) in the case of a trust dissolved under section 15, the owners of the
land are entitled to the property and rights of the trust and must contribute to
its liabilities in a manner determined or approved by the Minister after taking
into account such factors as appear appropriate to the Minister in the
circumstances.
(3) Division 4 of Part 2 operates subject to the operation of this
clause.
(1) The Governor may, by regulation, make additional provisions of a
saving or transitional nature consequent on the enactment of this Act.
(2) A provision of a regulation made under subclause (1) may, if the
regulation so provides, take effect from the commencement of this Act or from a
later day.
(3) To the extent to which a provision takes effect under
subclause (2) from a day earlier than the day of the regulation's
publication in the Gazette, the provision does not operate to the disadvantage
of a person by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
(4) The Acts Interpretation Act 1915 will, except to the
extent of any inconsistency with the provisions of this Schedule (or regulations
made under this Schedule), apply to any amendment or repeal effected by this
Act.