Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Water Acts Amendment (Enforcement
and Other Matters) Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill which are to amend the Water
Industry Act 1994 to make further provision for enforcement in
relation to drought response plans, emergency management
plans, and permanent water saving plans, to amend the Water
Act 1989 to make further provision for enforcement in relation to
permanent water saving plans and water restrictions set out in
by-laws, to make further provision for licences to take water, and
to amend the Infringements Act 2006 to extend the operation of
that Act to infringement notices served under by-laws.
Clause 2 provides that the Act will come into operation on the day after
the day on which it receives the Royal Assent.
PART 2--AMENDMENT OF WATER INDUSTRY ACT 1994
Clause 3 inserts into the Water Industry Act 1994 new definitions for
authorised water officer, drought response plan, emergency
management plan, licensee and permanent water saving plan.
Clause 4 repeals section 60A of the Water Industry Act 1994 which
provides for the serving of infringement notices for
contraventions of permanent water saving plans. A person
authorised by a licensee to serve an infringement notice may do
so if he or she reasonably believes that another person has
contravened a permanent water saving plan. An offence referred
to in section 60A is an infringement offence within the meaning
of the Infringements Act 2006.
561129 1 BILL LA INTRODUCTION 1/5/2007
This section is being replaced by new section 78OA.
By inserting new section 78OA, the section conferring power to
serve infringement notices is included in Division 1B (Permanent
water saving plan) of Part 3 of the Water Industry Act 1994.
Section 60A is within a general division (Division 1) of Part 3
(Functions, Obligations and Powers of Licensees).
Clause 5 inserts new section 78F(3) into the Water Industry Act 1994
which requires a licensee to make available a copy of its drought
response plan and emergency management plan on its website.
This amendment makes these plans more accessible, supporting
the role of education in ensuring compliance with the plans.
Currently, these plans are only required to be made available at a
licensee's office for inspection during business hours.
Clause 6 amends sections 78H of the Water Industry Act 1994 to remove
the requirement for a person to be issued with a warning notice
before being liable for committing an offence for contravening a
drought response plan or an emergency management plan.
By removing this requirement, an authorised water officer has
discretion as to whether to give a warning notice or take
enforcement action. It may be appropriate not to give a warning
notice if a person who contravenes a drought response plan or an
emergency response plan is already aware of the restrictions and
prohibitions set out in those plans.
Clause 7 amends section 78HA of the Water Industry Act 1994 to
provide that an infringement notice may be served by an
authorised water officer appointed by a licensee where the officer
reasonably believes that a person has committed an offence
against section 78H by contravening a restriction or prohibition
on the use of water contained in a drought response plan or an
emergency management plan.
Currently, infringement notices may be served by any person
authorised in writing by a licensee.
Clause 8 inserts new section 78M(3) into the Water Industry Act 1994
which requires a licensee to make available a copy of its
permanent water saving plan on its website.
This amendment makes the plans more accessible, supporting the
role of education in ensuring compliance with the plans.
Currently, a permanent water saving plan is only required to be
available for inspection at a licensee's office during business
hours.
2
Clause 9 amends sections 78O of the Water Industry Act 1994 to remove
the requirement for a person to be issued with a warning notice
before being liable for committing an offence for contravening a
permanent water saving plan.
By removing this requirement, an authorised water officer has
discretion as to whether to give a warning notice or take
enforcement action. It may be appropriate not to give a warning
notice if a person who contravenes a permanent water saving
plan is already aware of the restrictions and prohibitions set out
in that plan.
Clause 10 inserts new section 78OA into the Water Industry Act 1994
which replaces section 60A.
New section 78OA(1) provides that an authorised water officer
appointed by a licensee may serve an infringement notice on any
person he or she reasonably believes has committed an offence
against section 78O by contravening a restriction or prohibition
on the use of water contained in a permanent water saving plan.
New section 78OA(2) provides that an offence against
section 78O is an infringement offence within the meaning of
the Infringements Act 2006.
New section 78OA(3) fixes the penalty for an offence against
section 78O at 1 penalty unit. Currently, section 60A states that a
person is liable to a penalty not exceeding 1 penalty unit.
Clause 11 substitutes section 179(1)(ab) of the Water Industry Act 1994
with a new subparagraph which provides that proceedings for an
offence against section 78H or 78O may be brought by an
authorised water officer.
Clause 12 inserts new Part 6A into the Water Industry Act 1994, entitled
"Appointment of and Powers of Authorised Water Officers".
New section 185A provides for the appointment of a person as an
authorised water officer by a licensee.
New section 185B requires each licensee to issue an identity
card to each authorised water officer. An authorised water
officer must produce his or her identity card for inspection
during the exercise of a power under the Act if asked to do so.
The inclusion of these requirements is consistent with the
Government's response to the Victorian Parliament Law Reform
Committee's report on The Powers of Entry, Search, Seizure and
Questioning by Authorised Persons, tabled in Parliament in
August 2003.
3
New section 185C makes it an offence to impersonate an
authorised water officer and has a penalty of 60 penalty units.
New section 185D(1) requires a person to state his or her name
and address to an authorised water officer if that officer has
reasonable grounds for believing that the person has contravened,
or is contravening, a restriction or prohibition on the use of water
contained in a drought response plan, an emergency management
plan or a permanent water saving plan. This power is necessary
to enable an authorised water officer to ascertain the identity of a
person that the officer believes has contravened, or is
contravening, a restriction or prohibition on the use of water
contained in a drought response plan, an emergency management
plan or a permanent water saving plan. Currently, there is no
power for an authorised person to require a person to state his or
her name and address.
New section 185D(2) makes a person who is required to state his
or her name and address liable to a penalty of 10 penalty units if
that person refuses to state his or her name and address or that
person states a false name or address. This penalty is the same as
the penalty for an offence against section 293 of the Water Act
1989, being the equivalent provision in that Act.
PART 3--AMENDMENT OF WATER ACT 1989
Clause 13 inserts into the Water Act 1989 new definitions for authorised
water officer and permanent water saving plan.
Clause 14 substitutes section 51(1AA) of the Water Act 1989 for a new
subsection which provides that an application may be made for a
licence to take and use water in a declared water system if the
water to be taken and used is to be subject to a condition that a
proportion of the water be returned to the water system or if the
water is to be taken and used for a prescribed purpose.
This amendment allows licences to be issued under section 51 of
the Water Act 1989 in declared water systems for limited
purposes.
Clause 15 inserts new section 170D(3) into the Water Act 1989 which
requires an Authority to make available a copy of its permanent
water saving plan on its website.
This amendment makes the plans more accessible, supporting the
role of education in ensuring compliance with the plans.
Currently, a permanent water saving plan is only required to be
available for inspection at an Authority's office during business
hours.
4
Clause 16 amends section 170F(1) of the Water Act 1989 to remove the
requirement for a person to be issued with a warning notice
before being liable for committing an offence for contravening a
permanent water saving plan.
By removing this requirement, an authorised water officer has
discretion as to whether to give a warning notice or take
enforcement action. It may be appropriate not to give a warning
notice if a person who contravenes a permanent water saving
plan is already aware of the restrictions and prohibitions set out
in that plan.
Clause 17 inserts new section 171(4) into the Water Act 1989 which
provides that an offence contained in a by-law made by an
Authority in respect of a contravention of a restriction or
prohibition on the use of water is an infringement offence within
the meaning of the Infringements Act 2006.
This amendment extends the rights and protections contained in
the Infringements Act 2006 to persons served with an
infringement notice for such an offence.
Clause 18 inserts a new Division heading into Part 14--Enforcement of the
Water Act 1989, entitled "Division 1--General offences".
Clause 19 inserts new Divisions 2 and 3 into Part 14 into the Water Act
1989, entitled "Division 2--Enforcement of water restrictions"
and "Division 3--Powers of authorised water officers".
New section 291A provides for the appointment of a person as an
authorised water officer by an Authority with a water district.
New section 291B requires an Authority to issue an identity
card to each authorised water officer. An authorised water
officer must produce his or her identity card for inspection
during the exercise of a power under the Act if asked to do so.
The inclusion of these requirements is consistent with the
Government's response to the Victorian Parliament Law Reform
Committee's report on The Powers of Entry, Search, Seizure and
Questioning by Authorised Persons, tabled in Parliament in
August 2003.
New section 291C makes it an offence to impersonate an
authorised water officer and has a penalty of 60 penalty units.
New section 291D(1) requires a person to state his or her name
and address to an authorised water officer if that officer has
reasonable grounds for believing that the person has contravened,
or is contravening, an offence set out in section 170F in relation
to a permanent water saving plan or an offence set out in a
5
by-law made under section 171(1)(ba). This power is necessary
to enable an authorised water officer to ascertain the identity of a
person that the officer believes has contravened, or is
contravening, an offence set out in section 170F or in a by-law
made under section 171(1)(ba).
New section 291D(2) makes a person who is required to state his
or her name and address liable to a penalty of 10 penalty units if
that person refuses to state his or her name and address or states a
false name or address. This penalty is the same as the penalty for
an offence against section 293 of the Act for refusing to state or
stating a false name and address to an Authority or a member of
the police force.
Clause 20 amends section 293 of the Water Act 1989 to remove the power
of an officer of an Authority or a member of the police force to
require a person to state his or her name and address in relation to
an offence against section 170F of that Act or an offence
prescribed in a by-law made under section 171(1)(ba) of that Act.
The power to require a person to state his or her name address in
relation to an offence against section 170F of the Water Act
1989 or an offence prescribed in a by-law made under section
171(1)(ba) of that Act has been conferred by new section
291D(2) of that Act on each authorised water officer appointed
by an Authority.
Clause 21 substitutes section 295A(1) of the Water Act 1989 with a new
subsection which provides that an infringement notice may be
served by an authorised water officer appointed by an Authority
where the officer reasonably believes that a person has
committed an offence against section 170F by contravening a
restriction or prohibition on the use of water contained in a
permanent water saving plan.
Section 295A(3) is substituted with a new subsection which fixes
the penalty for an offence against section 170F at 1 penalty unit.
Currently, a person is liable to a penalty not exceeding 1 penalty
unit.
Clause 22 substitutes section 296(1)(ba) of the Water Act 1989 with new
sections 296(1)(ba), (bb) and (bc).
New section 296(1)(ba) provides that proceedings for an offence
against section 288(1), 289(1) or 290(1) may be brought by an
employee of a licensee who is authorised by the licencee to do so.
Currently, section 296(1)(ba) refers to section 17(1) of the Water
Industry Act 1994, which has been repealed.
6
New section 296(1)(bb) provides that proceedings for an offence
against section 170F or new section 291D, in relation to a
permanent water saving plan, may be brought by an authorised
water officer appointed by the Authority responsible for
implementing the plan.
New section 296(1)(bc) provides that proceedings for an offence
against a by-law made by an Authority under section 171(1)(ba)
may be brought by an authorised water officer appointed by the
Authority.
Clause 23 amends clause 13(1) of Schedule 15 to the Water Act 1989 to
provide that any licence issued under section 51 of that Act to
take and use water that is subject to a condition that a proportion
of the water be returned to the water system or to take and use
water for a purpose prescribed for the purposes of section
51(1AA) is not to be converted to a water share on the
declaration of the relevant water system (being the trigger for the
conversion of certain rights).
Clause 24 repeals sections 49(1)(b), 53(2)(d) and 59(1A) of the Water Act
1989 as these sections are redundant.
PART 4--AMENDMENT OF INFRINGEMENTS ACT 2006
Clause 25 amends section 3(1) of the Infringements Act 2006 by
expanding the definition of infringement offence to include a
by-law made under section 171 of the Water Act 1989 or a
by-law made under a prescribed Act.
Currently, the Water Act 1989 provides that a by-law may
prescribe offences, in respect of contraventions of restrictions or
prohibitions on the use of water, for which an infringement notice
may be served.
Amending the Infringements Act 2006 to expand the definition
of infringement offence is necessary to ensure that the rights and
protections provided by that Act apply to persons served with an
infringement notice for an offence prescribed in a by-law made
under section 171 of the Water Act 1989.
7
PART 5--GENERAL
Clause 26 provides for the automatic repeal of this amending Act on the
anniversary of its Royal Assent. As suggested by the Scrutiny of
Acts and Regulations Committee, all amending Acts now contain
an automatic repeal provision, which will save the time and
expense of having to repeal amending Acts in statute law revision
Bills. The repeal of this Act does not affect in any way the
operation of the amendments made by this Act (see section 15(1)
of the Interpretation of Legislation Act 1984).
8