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Water Amendment (Governance and
Other Reforms) Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
Currently, there are three metropolitan Corporations Act companies holding
water and sewerage licences under the Water Industry Act 1994. They are
wholly owned by the State of Victoria. The Bill provides for the
establishment of three new water corporations under the Water Act 1989 to
replace the three metropolitan water and sewerage companies.
Part 1 of the Bill provides for preliminary matters, namely the purposes and
commencement of the Bill.
Part 2 of the Bill amends the Water Act 1989 to provide for the
establishment of the new water corporations and for transitional provisions
and consequential amendments required as a result of the establishment of the
three new water corporations under the Water Act 1989 and other
amendments.
Part 3 of the Bill amends the Water Industry Act 1994 to repeal the
metropolitan water and sewerage licensing arrangements and provide for
transitional provisions and consequential amendments required as a result of
the replacement of the three metropolitan water and sewerage companies.
Part 4 of the Bill provides for miscellaneous consequential amendments to
other Acts required as a result of the establishment of the three new water
corporations under the Water Act 1989.
Part 5 of the Bill provides for the repeal of this Bill on 1 July 2014.
571108 1 BILL LA INTRODUCTION 28/2/2012
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
The purposes of the Bill are to amend the Water Act 1989
("the Act") to make provision with respect to metropolitan water
corporations and to make related and other amendments to that
Act; to repeal certain parts of the Water Industry Act 1994
relating to the licensing system and to make related and other
amendments to that Act; and to make related and other
amendments to other Acts.
Clause 2 provides for commencement of the Bill. The provisions of the
Bill are to come into operation on a day or days to be proclaimed
or on 1 July 2013, whichever is earlier.
PART 2--AMENDMENT OF THE WATER ACT 1989
Clause 3 sets out the definitions to be inserted into the Act, amends certain
existing definitions in the Act and repeals a number of definitions
in the Act. The definition for emergency management plan,
metropolitan water corporation and non-metropolitan water
corporation has been inserted into the Act. The definition for
sewerage district, water district, private dam and trade waste has
been amended. The definition for area of interest, First Mildura
Irrigation Trust, Latrobe Valley, licensee and Yallourn works
area are repealed as these definitions are now redundant.
Section 3(2) of the Act regarding declarations relating to Latrobe
Valley is also repealed as this section is now redundant.
Clause 4 amends section 15(2) of the Act to include a reference to
section 324 under which regulations for discharge of saline
matter will be able to be made. This is relevant to providing for
the circumstances when the civil liability provisions under
section 15(1)(c) of the Act do not apply as a consequence of the
amendment of section 324 of the Act. This clause also removes a
reference to regulations made under section 50(d) of the Water
Industry Act 1994. This is because no new regulations will be
made for water supply and sewerage services under this section
of the Water Industry Act 1994 following the water corporation
commencement date.
2
Clause 5 amends section 17(2) of the Act to extend the protection from
liability under sections 15 and 16 of the Act to Part 9. The effect
of this amendment is that Authorities will now be protected from
any liability under sections 15 and 16 in respect of a flow of
water from their works in the exercise of a sewerage function.
This clause also removes reference to "licensee in the exercise of
a function under its licence" in section 17(2) as this reference is
now redundant.
Clause 6 removes a redundant reference to "licensee" in section 21 of the
Act in relation to matters to be taken into account with respect to
public works as a consequence of the revocation of licences
issued under the Water Industry Act 1994.
Clause 7 establishes the new metropolitan water corporations under the
Act. These water corporations are to be known by the names set
out in the item in Column 1 of the table in new Schedule 1A of
the Act, these being City West Water Corporation, South East
Water Corporation and Yarra Valley Water Corporation.
The names of the new metropolitan water corporations
correspond to the names of the former Corporations Act
companies.
Clause 8 repeals provisions in the Act relating to the First Mildura
Irrigation Trust which are no longer required following the
abolition of the First Mildura Irrigation Trust in 2008.
It also makes a consequential amendment to section 95(1) of the
Act regarding the composition of the board of directors of water
authorities, required as a result of the abolition of the First
Mildura Irrigation Trust.
The clause also repeals Item 6 of Schedule 1 and Schedule 6 of
the Act which are no longer required following the abolition of
the First Mildura Irrigation Trust.
Clause 9 amends section 95 of the Act to increase the maximum number of
directors that may be appointed to a board of a water corporation
from 8 to 9 and to bring the new metropolitan water corporations
under the same governance arrangements, regarding appointment
of the board of directors, as Melbourne Water Corporation.
The effect of this amendment is that the directors of Melbourne
Water Corporation and the new metropolitan water corporations
are to be appointed by the Minister in consultation with the
3
Treasurer. Previously, the Act provided that the directors of
Melbourne Water Corporation were appointed by the Minister
together with the Treasurer. The directors of a non-metropolitan
water corporation are to be appointed by the Minister.
Clause 10 amends section 97 of the Act to bring the new metropolitan water
corporations under the same governance arrangements, regarding
appointing persons to be members of the board of directors, as
Melbourne Water Corporation.
The effect of this amendment is that, in the case of Melbourne
Water Corporation and the new metropolitan water corporations,
the Minister in consultation with the Treasurer must ensure that
each person so appointed has the relevant qualifications and
experience. Previously, the Act provided that in the case of
Melbourne Water Corporation the Minister together with the
Treasurer had to ensure that each person so appointed had the
relevant qualifications and experience.
In the case of the directors of a non-metropolitan water
corporation, the Minister must ensure that each person so
appointed has the relevant qualifications and experience.
Clause 11 amends section 98(1)(b) of the Act to bring the new metropolitan
water corporations under the same governance arrangements,
regarding the determination of terms and conditions relating to
the appointment of members of the board of directors, as
Melbourne Water Corporation.
The effect of this amendment is that, in the case of Melbourne
Water Corporation and the new metropolitan water corporations,
the terms and conditions relating to the appointment of the
members of the board of directors must be determined by the
Minister in consultation with the Treasurer. Previously, the Act
provided that the terms and conditions relating to the
appointment of the members of the board of directors of
Melbourne Water Corporation be determined by the Minister
together with the Treasurer. In the case of the non-metropolitan
water corporations, the terms and conditions must be determined
by the Minister.
Clause 12 amends section 101 of the Act to bring the new metropolitan
water corporations under the same governance arrangements,
regarding the removal from office of a member of the board of
directors, as Melbourne Water Corporation.
4
The effect of this amendment is that, in the case of Melbourne
Water Corporation and the new metropolitan water corporations,
the Minister in consultation with the Treasurer may remove from
office a member of the board of directors of the water
corporation. Previously, the Act provided that the Minister
together with the Treasurer may remove a member of the board
of directors of Melbourne Water Corporation. In the case of the
non-metropolitan water corporations, the Minister may remove a
member of the board of directors.
Clause 13 amends section 104 of the Act to bring the new metropolitan
water corporations under the same governance arrangements,
regarding the appointment of the chairperson of the water
corporation, as Melbourne Water Corporation.
The effect of this amendment is that, in the case of Melbourne
Water Corporation and the new metropolitan water corporations,
the Minister in consultation with the Treasurer must appoint a
member of the board of directors (appointed under section
95(1)(a) of the Act) to be the chairperson of the water
corporation. Previously, the Act provided that the Minister
together with the Treasurer must appoint a member of the board
of directors of Melbourne Water Corporation to be the
chairperson of Melbourne Water Corporation.
In the case of the non-metropolitan water corporations, the
Minister must appoint a member of the board of directors
(appointed under section 95(1)(a) of the Act) to be the
chairperson of the water corporation.
Clause 14 amends section 117 of the Act to bring the new metropolitan
water corporations under the same governance arrangements as
Melbourne Water Corporation regarding the fixing of amounts of
remuneration and allowances paid by a water corporation to its
members of the board of directors.
The effect of this amendment is that, in the case of Melbourne
Water Corporation and the new metropolitan water corporations,
the amounts of any remuneration and allowances paid by the
water corporation must not exceed the amounts fixed by the
Minister in consultation with the Treasurer in respect of that
water corporation. Previously, the Act provided that the Minister
together with the Treasurer must fix the amounts of any
remuneration and allowances for Melbourne Water Corporation.
In the case of the non-metropolitan water corporations, the
5
amounts of any remuneration and allowances paid by the water
corporation are fixed by the Minister.
Clause 15 inserts a new Division 1AA into Part 6A of the Act to provide the
Minister with powers to determine water or sewerage districts
and to vary or abolish existing water or sewerage districts. It also
sets out the procedural requirements for the Minister before
making a determination and the considerations to which the
Minister must have regard in making a determination.
Clause 16 inserts a new Division 1A into Part 6A of the Act which specifies
the water and sewerage districts of the new metropolitan water
corporations.
Clause 17 amends section 122L of the Act to provide that Division 3 of
Part 6A of the Act does not apply to a water district or a
sewerage district that has been specified by Division 1A of
Part 6A or determined by the Minister under Division 1AA of
Part 6A of the Act, or the waterway management district of
Melbourne Water Corporation.
The effect of these amendments is that the Minister's powers to
determine water and sewerage districts take precedence over the
other methods of extending or diminishing districts.
Clause 18 repeals a number of sections in the Act that relate to "areas of
interest". These sections are as follows--
section 122N, which places restrictions on areas for
which proposals for new or extended water or sewerage
districts may be made;
section 122U, which relates to the Ministerial
declaration of areas of interest;
section 122V, which sets out advertising requirements
for proposals for a declaration of interest; and
section 122W, which set out the powers of an Authority
in an area of interest.
These sections are no longer required due to the insertion of new
powers for the Minister to determine water and sewerage
districts.
6
Clause 19 amends section 122X of the Act to provide that Division 4 of
Part 6A of the Act does not apply to a water district or a
sewerage district that has been specified by Division 1A of
Part 6A or determined by the Minister under Division 1AA of
Part 6A of the Act, or the waterway management district of
Melbourne Water Corporation.
The effect of these amendments is that the Minister's powers to
determine water and sewerage districts take precedence over the
other methods of changing districts.
Clause 20 amends the powers of an officer of an Authority or an authorised
person under section 133 of the Act to enter land used primarily
for residential purposes.
An officer of an Authority or an authorised person will be able to
enter land used primarily for residential purposes for the purpose
of inspecting any works or making any test to find out whether
the Act, the regulations and the by-laws of the Authority are
being complied with under section 133(1)(c) between 7.30 a.m.
and 6.00 p.m. on giving seven days' notice to the occupier.
The exception to this is where entry is made with the occupier's
consent.
An authorised water officer of an Authority will also be able to
enter land used primarily for residential purposes for the purpose
of inspecting any works or making any test to find out whether
the Act, the regulations and the by-laws of the Authority are
being complied with under section 133(1)(c) where the
authorised water officer has a search warrant for such entry
issued under new section 291E of the Act. Entry under a search
warrant must be made in accordance with the conditions set out
in the warrant.
An officer of an Authority or an authorised person will be able to
enter land used primarily for residential purposes for the purpose
of carrying out any other statutory function under section
133(1)(d) of the Act after giving seven days' notice to the
occupier of the land. The exception to this is where entry is
made with the occupier's consent, there is an emergency or entry
is made for the purpose of performing a function under
section 221(a) of the Act. Section 221(a) of the Act provides for
the functions of an Authority with an irrigation district to
provide, manage and operate systems for the delivery of water to
lands and appropriate drainage and protection of those lands.
7
Entry under section 133(1)(d) must not be made between
6.00 p.m. and 7.30 a.m. unless the occupier consents to entry
during those hours or there is an emergency.
The power to enter residential land to read a meter or inspect a
septic tank may continue to be exercised between 7.30 a.m. and
6.00 p.m. without notice. Entry for these purposes must not be
made between 6.00 p.m. and 7.30 a.m. unless the occupier
consents to entry during those hours or there is an emergency.
Clause 21 repeals section 134(2) of the Act, a statutory immunity provision,
which provides that a water corporation is not liable for nuisance
or other injury done in exercising the power to enter land under
section 133 of the Act.
The effect of this repeal is that an Authority will no longer have a
statutory immunity previously provided by this section.
The duties and obligations set out in section 134(1) will continue
to apply.
Clause 22 inserts a new section 141(2A) of the Act to provide that an
Authority must not discontinue the supply of drinking water to a
person merely because the person has refused or failed to pay any
money that is due to the Authority.
This clause also inserts in section 141 a definition of drinking
water. This term has been given the same meaning as given to it
in the Safe Drinking Water Act 2003.
Clause 23 repeals section 141A(1)(a) of the Act which creates an obligation
for Melbourne Water Corporation to supply water to the former
retail licensees. This section is being repealed as this provision is
no longer required. It also amends the Act to omit a redundant
reference to the former retail licensees as this is no longer
required.
Clause 24 amends section 143(1)(d) to omit a reference to the Water
Industry Act 1994 in relation to waste and misuse of water
supply offences. This is required as these provisions of the
Water Industry Act 1994 are being repealed by this Bill. It also
repeals section 143(2) of the Act which contains a redundant
reference to a "licensee" under the Water Industry Act 1994.
8
Clause 25 amends section 145 of the Act to provide that a person may apply
to the Victorian Civil and Administrative Tribunal (VCAT) for
review of a decision made by an Authority under section 145(3)
of the Act. An application to VCAT for review of an Authority's
decision must be made within 28 days after the day on which the
decision is made or, if the applicant requests a statement of
reasons for the decision under the Victorian Civil and
Administrative Tribunal Act 1998, the day on which the
statement of reasons is given to the person or the person is
informed under section 46(5) of that Act that a statement of
reasons will not be given.
Clause 26 amends section 147 of the Act to provide that the only new
connection an Authority can require the owner of a serviced
property to make is to the sewerage works of the Authority.
Previously, an Authority could also require the owner of a
serviced property to make new connections to other types of
works.
Clause 26 amends section 147 to provide that an Authority must
not require the owner to connect to the sewerage works of the
Authority unless the Authority has first consulted with the
Environmental Protection Authority and the Secretary to the
Department of Health and the Authority is of the opinion the
connection is necessary to avoid an adverse impact on public
health or the environment.
An Authority will continue to be able to require an owner of a
serviced property to remove an existing connection to any works
of the Authority or to carry out any work that the Authority
considers necessary for the provision of services to that property.
If an Authority requires the owner of a serviced property to
connect to the sewerage works, remove an existing connection or
carry out any work the Authority considers necessary, the
Authority must give notice of this to the owner. The notice must
specify the period of time in which the connection, removal or
works is to be carried out.
Clause 26 amends section 147 to provide that the owner of the
serviced property may apply to VCAT for a review of the
Authority's decision to give a notice in the circumstances
outlined above. An application to VCAT for review of an
Authority's decision must be made within 28 days after the day
on which the decision is made or, if the applicant requests a
9
statement of reasons for the decision under the Victorian Civil
and Administrative Tribunal Act 1998, the day on which the
statement of reasons is given to the person or the person is
informed under section 46(5) of that Act that a statement of
reasons will not be given.
The clause also amends section 147 to provide that VCAT must
not make a determination that has the effect that the owner is not
required to connect to the Authority's sewerage works unless the
owner can demonstrate that the owner is able to dispose of
wastewater or sewage from the property (whether alone or in
combination with other properties) in a manner that avoids an
adverse impact on public health or the environment.
Clause 27 amends section 157(1)(a) of the Act to provide that an Authority
is liable to pay damages for injury to a person, damage to
property or economic loss caused by a flow of water from the
works of the Authority onto any land, which is a result of
intentional or negligent conduct on the part of the Authority in
the exercise of a sewerage function under Part 9 of the Act.
This liability is in addition to an Authority's current liability to
pay for damages for injury to a person, damage to property or
economic loss caused by a flow of water from the works of the
Authority onto any land, which is a result of intentional or
negligent conduct on the part of the Authority in the exercise of
water supply, certain waterway management and irrigation
functions under the Act.
Clause 28 omits a redundant reference to "area of interest" in section 158(1)
of the Act. This reference is no longer required due to the
insertion in the Act of new powers for the Minister to determine
water and sewerage districts.
Clause 29 inserts new sections 159A to 159E in the Act specifying a new
requirement for a water corporation to make an emergency
management plan. The plan must set out how a water
corporation must respond to any emergency that could affect the
exercise of its powers or the performance of its functions.
New section 159A(2) will provide that a water corporation must
have regard to any obligations in a statement of obligations
issued by the Minister under Part 1A of the Water Industry Act
1994 concerning the form and information to be contained in the
plan.
10
New sections 159B and 159C provide that a water corporation
may vary or revoke and remake a plan and requires publication of
a notice of the fact of the making, variation or revocation and
remaking of a plan. The Minister is also empowered under new
section 159D to require an Authority to review and remake a
plan.
New section 159E provides that the Governor in Council on the
recommendation of the Minister may by Order direct a water
corporation to take an action in response to an emergency in a
particular area for a particular period of time as specified in that
Order. Whilst the Order is in force, it would have effect despite
anything to the contrary in the water corporation's emergency
management plan.
For the purpose of an emergency management plan and an Order
by the Governor in Council, this clause inserts a definition of
emergency in new section 159A.
Clause 30 amends section 165 of the Act to provide that no charge may be
made by an Authority in respect of water taken for fire-fighting
purposes from a fire plug fixed to its works.
Clause 30 also amends section 165 to provide that an Authority
may impose a reasonable charge in respect of water taken from
fire plugs in its water district for cleaning sewers and drains.
Clause 31 repeals section 170 of the Act which relates to the liability of an
owners corporation for water supplied to a subdivision. This is
required because clause 40 of the Bill inserts a new section 263A
in the Act that makes provision for these matters.
Clause 32 replaces a redundant reference to "licensee" with "Authority" in
section 170B(7) of the Act relating to the variation of a
permanent water saving plan.
Clause 33 amends section 171(3) of the Act to provide Authorities with a
more flexible system of describing water restriction stages.
Previously, water restriction stages were specifically described in
the Act as being "Stage 1", "Stage 2" and so on. An Authority
will have the ability to choose how it describes each particular
water restriction stage.
Clause 34 amends section 180 of the Act to omit references to "areas of
interest" in relation to septic tank applications made to local
councils. These references are no longer required.
11
Clause 35 substitutes section 188A(1)(a) so as to remove the references to
the waterways that were excluded from the waterway
management district of Melbourne Water Corporation.
These references are no longer required as Melbourne Water is
required to exercise statutory functions as waterway manager in
relation to these parts of the waterways.
Clause 36 amends section 193(2)(a) of the Act to omit a redundant
reference to "licensee" in relation to an Authority's powers of
closing access to a designated waterway or designated land or
works.
Clause 37 amends section 194 of the Act to omit redundant references to
"licensee" in relation to offence provisions relating to works that
interfere with designated land or works.
Clause 38 amends section 195 of the Act to omit redundant references to
"licensee" in relation to an Authority's powers of control over
connections to and discharges into a designated waterway or
designated land or works.
Clause 39 amends section 200(2) and 200(3) of the Act to omit redundant
references to "licensee" in relation to an Authority's powers of
control over the diversion of drainage water.
Clause 40 inserts new section 263A into the Act regarding the liability of an
owners corporation of a subdivision or of owners of lots of a
subdivision for fees for the services of water supply and sewage
disposal supplied by a water corporation to a subdivision.
An owners corporation will be liable to pay any fees imposed by
an Authority under a tariff for the provision of water supply or
sewage services in respect of land affected by the owners
corporation and any common property affected by the owners
corporation.
An Authority may apportion an amount for which the owners
corporation would otherwise be liable between the lots affected
by the owners corporation on the basis of either the number of
lots affected or the lot liability of each lot affected. The owners
of each lot to which an amount is apportioned are liable to pay
that amount.
An owners corporation may request an Authority to use lot
liability as the basis for apportionment of amounts.
12
Where a subdivision has more than one owners corporation and
an Authority considers it impractical to determine how much
water is supplied to land affected by each owners corporation, the
Authority may treat one owners corporation as being the only
owners corporation.
Clause 41 substitutes section 273A of the Act to provide for the
circumstances in which an occupier of property leased under a
residential tenancy, an occupier of a site in a caravan park and a
site tenant of a Part 4A site, each within the meaning of the
Residential Tenancies Act 1997, are liable for any water usage
charge or sewage disposal charge imposed by an Authority.
It also sets out an Authority's obligations regarding the reading of
the water meter on receipt of notification by an owner of a new
occupier. The Authority must ensure that the reading on the
meter is recorded within 48 hours of receiving such notification
or as soon as practicable after receipt of notification, whichever
occurs last.
The clause also substitutes section 273B of the Act to set out the
obligations of an occupier, an Authority and a property owner on
the occupation and vacation of the property by the occupier.
An occupier who vacates or intends to vacate a property may
notify an Authority of this and request the Authority read the
meter. The Authority must ensure a meter reading takes place on
the latter of--
the vacation date (or as soon as practicable after that
date); and
within 48 hours of receiving the occupier's request (or
as soon as practicable after that date).
The effect of this amendment is that if the Authority receives
notice more than 48 hours prior to the occupier vacating the
property, the Authority must read the meter on the vacation date
or as soon as practicable after that date. If the Authority receives
notice after the vacation date or less than 48 hours before the
vacation date, the Authority must read the meter within 48 hours
of receiving that notice or as soon as practicable after the notice
is received.
On the reading of the meter, the owner becomes liable for the
water and sewage disposal charges until the owner notifies the
Authority of a new occupier.
13
Clause 42 amends section 274(4A) of the Act to specify the circumstances
in which an amount owed to an Authority is or is not a charge on
a property. If a person liable to pay an amount in relation to a
property owns it and a code made by the Essential Services
Commission under Part 1A of the Water Industry Act 1994
does not otherwise provide, that amount is a charge on the
property whether or not the Authority has agreed to defer
payment of all or part of it.
Clause 43 inserts a new section 274A into the Act which provides for the
application of payments made to metropolitan water
corporations.
Any money paid to a metropolitan water corporation must be
applied by the metropolitan water corporation as follows--
first towards any amount owing to the corporation in
respect of any water usage charge or any other fee or
charge imposed by that corporation;
secondly towards any amount owing to the rating
authority that is being collected by the corporation on
behalf of the rating authority; and
thirdly towards any amount owing to Melbourne Water
Corporation that is being collected by the corporation on
behalf of Melbourne Water Corporation.
The new section 274A also sets out the dispute resolution process
for any dispute arising between a metropolitan water corporation
and the rating authority or Melbourne Water Corporation over
payments made to metropolitan water corporations and provides
a definition of the term rating authority.
Clause 44 repeals section 276 of the Act which empowers an Authority to
require an occupier of a property to pay rent to it until any
outstanding amounts owed by the owner of the property are paid
to the Authority.
The clause also repeals section 278 of the Act which empowers
an Authority to sell, or cause to be transferred to itself, any
property in which a fee or payment has been due to the Authority
and is unpaid for at least three years.
Authorities will no longer have these powers.
14
As a consequence of the repeal of section 278, the clause also
repeals sections 279 and 280 of the Act dealing with the
application of sale proceeds under section 278 and the cancelling
of the encumbrance on the land.
Clause 45 replaces references to "Governor in Council" with "Essential
Services Commission" in sections 281(1A) and 281(1B) of the
Act. The effect of this is that the Essential Services Commission,
not the Governor in Council, will set the maximum rate of
interest that can be charged by Authorities.
Clause 46 replaces redundant references to "licensee" with "metropolitan
water corporation" in section 281A(1) of the Act dealing with
agreements with respect to the collection of fees under tariffs.
The clause also inserts a substituted section 281A(2), setting out
the obligations of metropolitan water corporations to collect
money on behalf of Melbourne Water Corporation.
The clause also replaces a redundant reference to "licensee" with
"metropolitan water corporation" in section 281A(4).
Clause 47 replaces a redundant reference to "licensee" with "transferee" in
the definition of former transferor property in section 287E(1) of
the Act.
Clause 48 amends section 287F(1) of the Act to enable the transfer of
property, rights and liabilities between water corporations that
might be required, for example, as a consequence of a change to
a water or sewerage district.
Clause 49 substitutes a redundant reference to "licensee" with "transferee"
in section 287Q of the Act relating to the acquisition of a right in
the nature of an easement.
Clause 50 inserts section 287W(2) to provide a partial exemption from the
procedures contained in Divisions 2 and 3 of Part 13B of the Act
for an Authority making a by-law extending the operation of
another by-law by no more than 12 months so that only section
287ZI(2) and (3) of the Act applies to the making of the by-law.
The effect of this is that an Authority is only required to give
notice of the new by-law.
15
Clause 51 amends section 288(2)(a) to omit a reference to the Water
Industry Act 1994 in relation to the offence of interference with
an Authority's property as these provisions of the Water
Industry Act 1994 are repealed by this Bill. The clause removes
a redundant reference to "licensee" in section 288 of the Act
dealing with the offence of interference with an Authority's
property by repealing section 288(4).
Clause 52 amends section 289(2)(a) to omit a redundant reference to
section 69 of the Water Industry Act 1994 in relation to the
offence of wrongful taking of water and repeals a redundant
reference to "licensee" in section 289 of the Act dealing with the
offence of wrongful taking of water by repealing section 289(4).
Clause 53 repeals a redundant reference to "licensee" in section 290 of the
Act, dealing with the offence of uncovering or exposing an
Authority's works, by repealing section 290(2).
Clause 54 amends section 291A(1) to omit a reference to "with a water
district" as the scope of the powers and functions of an authorised
water officer is amended by this clause and will not be limited to
a water district of an Authority. The clause also amends section
291A(2)(b) to provide that any appointment of an authorised
water officer must specify the Authority on whose behalf that
officer is appointed to act.
Clause 55 inserts new sections 291E to 291H providing new search and
seizure powers for authorised water officers in relation to land
used primarily for residential purposes.
An authorised water officer may apply to a magistrate for a
search warrant if that officer believes on reasonable grounds that
it is necessary for the purpose of inspecting any works or making
any test on the land to find out whether there is evidence that the
Act, or any regulation or by-law of the Authority is not being
complied with.
If the magistrate is satisfied by the authorised water officer's
evidence, provided on oath or by affidavit, that it is necessary to
issue the warrant for the purpose of inspecting any works or
making any test on the land to find out whether there is evidence
that the Act, or any regulation or by-law of the Authority is not
being complied with, the magistrate may issue a search warrant
in accordance with the Magistrates Court Act 1989.
16
A search warrant issued by a magistrate authorises an authorised
water officer named in the warrant to enter premises named in the
warrant to search for and seize any thing that is found during the
course of inspecting the works or conducting the test.
If the authorised water officer needs to enter the land by force, it
must be with the assistance of a member of the police force.
An authorised water officer may have the assistance of another
person to undertake the tasks required under the warrant.
The authorised water officer may take any action necessary to
collect evidence of an offence being committed on the premises
including taking photographs and samples of water, soil or other
substances found on the land.
New section 291E(5) sets out what a search warrant must state
including but not limited to, the name of the authorised water
officer to whom the warrant is issued, particulars of the alleged
offence, the land to which the warrant relates, the conditions to
which the warrant is subject and the expiry date of the warrant.
Except as provided by the Act, the rules to be observed with
respect to search warrants under the Magistrates Court Act
1989 extend and apply to a search warrant issued under
section 291E.
A search warrant issued under this section does not authorise the
authorised water officer to arrest a person.
New section 291F provides that before executing a search
warrant, the authorised water officer must announce himself or
herself unless immediate entry is required to ensure the safety of
any person or that the effective execution of the warrant is not
frustrated.
New section 291G provides that the authorised water officer must
give a copy of the search warrant to the occupier or another
person present on the land.
New section 291H provides that a search warrant issued under
section 291E authorises the authorised water officer, in addition
to seizing any thing under the warrant, to seize any thing the
officer believes on reasonable grounds could have been seized
under the warrant and that it is necessary to seize in order to
prevent its concealment, loss or destruction or its use in the
17
commission of an offence against the Act, or any regulation or
by-law made under the Act.
Clause 56 inserts a new section 292AA providing that a reference to
"officer of an Authority" in sections 292, 293 and 294 includes a
reference to "authorised water officer".
The effect of this is that--
a person must not obstruct, threaten, abuse, insult or
intimidate an authorised water officer in the execution
of his or her duty under the Act or someone lawfully
assisting an authorised water officer in the execution of
his or her duty under the Act;
an authorised water officer may require a person to state
their name and address if the officer has reasonable
grounds to believe that the person has committed or is
committing an offence against the Act, or any regulation
or by-law made under the Act;
an authorised water officer may also require the
occupier of any land or premises or any person who is
employed in the management of any land or premises to
state the name and address of--
the owner of that land or premises; or
any person who has an interest in that land or
those premises; or
a person who is employed in the management of
that land or those premises.
Clause 57 substitutes the note at the foot of section 293, noting the further
powers of authorised water officers in section 291D of the Act.
Clause 58 repeals section 296(1)(ba) and section 296(3) of the Act dealing
with the power of employees of licensees in prosecutions as these
are no longer required.
Clause 59 omits redundant references to "licensee" in section 299 of the Act
which provide that civil remedies are not affected by the bringing
of proceedings under the Act.
18
Clause 60 amends section 300(1)(e) of the Act to remove a redundant
reference to "area of interest". This is no longer required due to
the insertion of new powers for the Minister to determine water
and sewerage districts.
Clause 61 inserts a new section 303A into the Act to provide for issues of
evidence and proof in relation to a proceeding under the Act or
regulations or by-laws made under the Act relating to the
discharge of anything into the works of an Authority or a
sewerage system under the control and management of an
Authority.
Clause 62 inserts a reference to section 122GAA into section 305C(2) of the
Act dealing with incorporation of documents into certain
instruments. The effect of this is that a Ministerial determination
made under section 122GAA may apply, adopt or incorporate
any matter in certain other documents.
Clause 63 repeals section 320 as this provision is now spent.
Clause 64 amends section 321 of the Act to clarify that the reference in
section 321 to section 98(1) is to that section prior to its
amendment upon the commencement of section 54 of the Water
(Governance) Act 2006. This clause also repeals a redundant
reference to clause 20(2)(e) of Schedule 3.
Clause 65 amends section 324(1) of the Act to expand the range of matters
for which, or with respect to which, the Governor in Council may
make regulations under the Act including but not limited to the
following--
the management, protection and use of all lands,
waterways, works and environmental and recreational
areas under the management and control of a water
corporation;
sanitary drainage plans held by a water corporation;
prescribing standards for the discharge of saline and
other matters;
prescribing ways of measuring water supply;
prohibiting any act which would cause wastage of
water;
19
regulating or prohibiting the discharge of trade waste;
and
imposing penalties for contraventions of the regulations.
The clause also inserts a new section 324(4A) providing that if a
regulation is inconsistent with a by-law made by an Authority,
the regulation prevails over the by-law to the extent of the
inconsistency.
Clause 66 repeals section 329 as this provision is now spent.
Clause 67 inserts section 330B which provides that Schedule 17 has effect.
This clause also inserts section 330C which provides that the
provisions in Schedule 17 are declared to be Corporations
legislation displacement provisions for the purposes of
section 5G of the Corporations Act in relation to the provisions of
Chapter 5 of that Act. The effect of this is that any provision of
Chapter 5 of the Corporations legislation with which the Act
would otherwise be inconsistent does not apply to the extent
necessary to avoid that inconsistency.
Clause 68 inserts Schedule 1A into the Act which lists the new metropolitan
water corporations: City West Water Corporation, South East
Water Corporation and Yarra Valley Water Corporation.
These are to replace the old water and sewerage licensees under
the Water Industry Act 1994.
Clause 69 inserts Schedule 17 into the Act which provides for savings and
transitional arrangements required as a consequence of the
amendments to the Act to be made by the 2012 Act.
Clause 1 in Part 1 of Schedule 17 provides definitions for a
number of terms used in the Schedule including--
old licensee which means a body set out in Column 2 of
the Table in Schedule 1A, being one of City West Water
Limited, South East Water Limited and Yarra Valley
Water Limited;
relevant water corporation which in relation to an old
licensee, means the water corporation set out in the item
in Column 1 of the Table in Schedule 1A immediately
opposite the old licensee; and
20
2012 Act which means the Water Amendment
(Governance and Other Reforms) Act 2012.
Clause 2 in Part 2 of Schedule 17 revokes any licence issued
under Division 1 of Part 2 of the Water Industry Act 1994.
The following clauses in Part 3 of Schedule 17 provide for
transitional provisions on the water corporation commencement
as follows--
Clause 3 provides for the transfer of directors of the old licensees
to the relevant water corporations.
Clause 4 provides for the interpretation of references to a person
who was the holder of a licence under the Water Industry Act
1994 (whether by use of the term "licensee" or otherwise) in the
Act, the Water Industry Act 1994 or any other Act or any
regulation or instrument made under those Acts on the water
corporation commencement.
This clause also provides that on the water corporation
commencement, a reference to an old licensee in those Acts or
any regulation or instrument made under those Acts, being a
body set out in column 2 of the Table in new Schedule 1A, is to
be taken to be a reference to the relevant water corporation, being
a body set out in column 1 of the Table in new Schedule 1A.
Clause 5 provides for the transfer of assets and liabilities of each
old licensee existing immediately before the water corporation
commencement to the relevant water corporation. This clause
also provides that, with the exception of any document that
relates to the business or operations of an old licensee that is
required for the purposes of the Corporations Act 2001
(Commonwealth), the relevant water corporation is substituted as
a party to any arrangement or contract entered into by or on
behalf of an old licensee that was in force immediately before the
water corporation commencement.
This clause also provides for the substitution of an old licensee
with the relevant water corporation in any Court proceedings to
which the old licensee was party prior to the water corporation
commencement.
Clause 6 provides for the amendment of the Register of Titles,
which is required because of the transfer of assets and liabilities
of an old licensee to a relevant water corporation under clause 5
of Schedule 17.
21
Clauses 7(1) and 7(2) provide that the Water Industry Act 1994,
as in force immediately before the water corporation
commencement, is taken to apply to the payment of any fee or
charge--
imposed by an old licensee under the Water Industry
Act 1994 before the water corporation commencement,
the whole or a part of which is outstanding immediately
before that commencement; or
imposed by a metropolitan water corporation in respect
of the provision of services for any period before that
commencement, being a fee or charge which is imposed
by the relevant water corporation on or after that
commencement.
Clause 7(3) provides that Part 2 of the Water Industry Act 1994
will continue to apply to the imposition or payment of fees and
charges to which clauses 7(1) and 7(2) of Schedule 17 apply as if
Part 2 had not been repealed by the 2012 Act and as if a reference
to a licensee in Part 2 were a reference to a metropolitan water
corporation.
Clauses 7(4) to 7(7) provide for specific administrative
arrangements in place under the Water Industry Act 1994
immediately before the water corporation commencement to be
taken to be administrative arrangements in place under the Water
Act 1989 after that commencement.
Clause 8 provides for the transfer of staff of an old licensee to the
relevant water corporation.
Clause 9 provides for the vesting of land acquired compulsorily
by the Minister on behalf of an old licensee in the relevant water
corporation.
Clause 10 provides for the transfer of ownership, management
and control of works of an old licensee to the relevant water
corporation.
Clauses 11(1) and (2) provide that land within an area specified
in the water and sewerage licence of an old licensee that was a
serviced property by operation of section 64 of the Water
Industry Act 1994 for the purpose, respectively, of water supply
or the supply of sewerage services is taken to be a serviced
property of the relevant water corporation for that respective
purpose under the Water Act.
22
Clause 11(3) provides that any land in respect of which an old
licensee was imposing a service charge under section 22 of the
Water Industry Act 1994 for the provision of water supply and
sewerage services immediately before the water corporation
commencement, is for the purposes of section 144 of the Act
taken to be a serviced property for the purpose of that water
supply service or sewerage service.
Clause 12 provides that an authorised person authorised by an old
licensee is taken to be authorised by the relevant water
corporation.
Clause 13 provides that an old customer dispute resolution
scheme applying to an old licensee is taken to be a dispute
resolution scheme applying to the relevant water corporation
under section 122ZG of the Act.
Clause 14 provides that certain Orders made under section 56 of
the Water Industry Act 1994 relating to the management of
Crown land applying to an old licensee are taken to be an Order
applying to the relevant water corporation under section 131 of
the Act.
Clause 15 provides that a notice given by an old licensee under
section 58 of the Water Industry Act 1994 relating to the power
to enter land continues in force and may continue to be dealt with
as if section 58 of that Act had not been repealed by the 2012
Act.
Clause 16 provides that an easement or reserve created for the
use of an old licensee and in force immediately before the water
corporation commencement, is taken to be an easement or
reserve created for the use of the relevant water corporation
under section 136 of the Act.
Clause 17 provides that despite the repeal of section 62B of the
Water Industry Act 1994 a notice served by an old licensee
under section 62B relating to the carrying out of works on which
there is rail infrastructure or rolling stock, that is in force
immediately before that repeal is taken to continue in force as if
that section had not been repealed.
23
Clause 17 also provides that despite the repeal of section 62C of
the Water Industry Act 1994 a notice given to an old licensee
by a rail operator under section 62C that is in force immediately
before that repeal is taken to continue in force as if that section
had not been repealed.
Clause 18 provides that despite the repeal of section 63 of the
Water Industry Act 1994, relating to control over connections, a
notice served on an old licensee under section 63(2) and an
application made under section 63(5) that are in force
immediately before that repeal, are taken to continue in force as
if that section had not been repealed.
Clause 19 provides that despite the repeal of section 65 of the
Water Industry Act 1994, a notice served by an old licensee
that is in force immediately before that repeal, continues in force
as if that section had not been repealed.
Clause 20 provides for the continuation in force of an application
for consent made to an old licensee in relation to structures over
works made under section 66 of the Water Industry Act 1994
despite the repeal of that section. It also provides for the
continuation of any terms and conditions to which an old licensee
has consented in relation to structures over works under the
Water Industry Act 1994.
Clause 21 provides for the continuation in force of a notice given
by an old licensee under section 67 of the Water Industry Act
1994 regarding removal of trees despite the repeal of that section.
Clause 22 provides for the continuation in force of a notice to
repair served by an old licensee under section 68 of the Water
Industry Act 1994 despite the repeal of that section.
Clause 23 provides for the continuation in force of a notice of
contravention served by an old licensee under section 69 of the
Water Industry Act 1994 despite the repeal of that section.
Clause 24 provides for the continuation in force of a notice
served by an old licensee under section 70 of the Water
Industry Act 1994, regarding an intention to affect works,
despite the repeal of that section.
Clause 25 provides for the continuation in force of a notice given
by an old licensee under section 71 of the Water Industry Act
1994 despite the repeal of that section.
24
Clause 26 provides for the continuation in force of a dispute that
has been referred to the Essential Services Commission under
section 72 of the Water Industry Act 1994 despite the repeal of
that section.
Clause 27 provides that despite the repeal of section 74A of the
Water Industry Act 1994 that section continues to apply in
relation to any proceedings pending in the Victorian Civil and
Administrative Tribunal immediately before the repeal of that
section.
Clause 28 provides for the continuation in force of an application
for an information statement to an old licensee under section 75
of the Water Industry Act 1994.
Clause 29 provides that a permanent water saving plan, prepared
by an old licensee under the Water Industry Act 1994 is taken
to be a permanent water saving plan of the relevant water
corporation under the Act.
Clause 30 provides that a requirement imposed on an old licensee
in relation to water for fire-fighting and cleaning sewers and
drains under section 81 of the Water Industry Act 1994 is taken
to be a requirement imposed on the relevant water corporation
under section 165 of the Act.
Clause 31 provides for the continuation in force of a notice of
contravention for water supply protection served by an old
licensee under section 84 of the Water Industry Act 1994 as if
that section had not been repealed.
Clause 32 provides for the continuation in force of an old works
notice served and published by an old licensee under section 95
of the Water Industry Act 1994 and the dealing with that notice
as if that section had not been repealed.
Clause 33 provides for the continuation in force of a notice of
disposition of land given to an old licensee under section 176A of
the Water Industry Act 1994 as if that section had not been
repealed.
Clause 34 provides that a trade waste agreement within the
meaning of the Water Industry Act 1994 to which an old
licensee is a party and which is in force immediately before the
water corporation commencement, is taken to be a trade waste
agreement to which the relevant water corporation is a party for
25
the purposes of Part 9 of the Act and any regulations made under
the Act in relation to trade waste and trade waste agreements.
Clause 35 provides that, on the water corporation
commencement, a meter provided or installed on any land by an
old licensee under the Water Industry Act 1994 before that
commencement, to measure the amount of water supplied by the
old licensee to any land, is taken to be a meter provided and
installed by the relevant water corporation under section 142 of
the Act.
Clause 36 provides that on the water corporation commencement,
an agreement entered into by an Authority for the purposes of
water supply services and sewerage services outside an
Authority's district for those services that is in force immediately
before the water corporation commencement is taken to have
been validly entered into by the Authority.
Clause 37 provides for the continuation in force of an area of
interest of a water corporation on the commencement of
section 18 of the 2012 Act, which repeals sections 122N, 122U,
122V and 122W of the Act regarding areas of interest, until the
making of a determination as to the water district or sewerage
district (as the case so requires) for the corporation under
Division 1AA of Part 6A.
Clause 38 provides that an emergency management plan of a
water corporation prepared under a statement of obligations
issued under section 4I of the Water Industry Act 1994 is taken
to be an emergency management plan of the water corporation
made under section 159A of the Act.
Clause 39 provides for the continuation in force of sections 278,
279 and 280 of the Water Industry Act 1994, despite the repeal
of those sections by section 44(2) to (4) of the 2012 Act, in
relation to any sale or transfer of property under section 278, the
contract for which was entered into before the commencement of
section 44(2) to (4) of the 2012 Act.
Clause 40 provides that, on the water corporation
commencement, any business or activity carried on by an old
licensee outside of Victoria before that commencement is taken
to be a business or activity approved by the Minister under
section 124(10) of the Act.
26
Clause 41 provides that, upon the repeal of section 276 of the
Water Industry Act 1994 by section 44(1) of the 2012 Act, any
outstanding obligation of an occupier to pay rent to an Authority
that is in force immediately before that commencement, ceases,
despite anything to the contrary in the Interpretation of
Legislation Act 1984.
Clause 42 provides that on the water corporation commencement
the approval by an old licensee of a person as an analyst under
section 3(1) of the Water Industry Act 1994 is deemed to be an
approval by the relevant water corporation under section 3(1) of
the Act.
Clause 43 provides that a water corporation that was in existence
immediately before the water corporation commencement is
taken to be the same body following the water corporation
commencement despite the amendments made to the Act by
sections 9, 10, 11, 12, 13 and 14 of the 2012 Act.
PART 3--AMENDMENT OF THE WATER INDUSTRY
ACT 1994
Clause 70 repeals or amends specific definitions contained in section 3(1) of
the Water Industry Act 1994.
Clause 71 amends a number of definitions contained in section 4A of the
Water Industry Act 1994 to substitute references to the new
metropolitan water corporations in place of licensees under
Division 1 of Part 2 of the Water Industry Act 1994.
Clause 72 amends section 4F(2) of the Water Industry Act 1994 to
empower the Essential Services Commission to make codes in
relation to debt recovery including specifying any customer or
class of customers to which powers to charge interest on
unrecovered debt may be used, the maximum rate of interest that
may be charged and whether a charge on a debtor's property
under section 274(4A) of the Water Act 1989 will apply.
Clause 73 repeals the definition of water authority contained in
section 4I(1) of Water Industry Act 1994 and replaces all
references in this section to "water authority" with "regulated
entity" as a consequence of the repeal of the licensee provisions
of the Water Industry Act 1994.
27
Clause 74 repeals Part 2 of the Water Industry Act 1994 which deals with
the licensing system.
Clause 75 repeals Part 3 of the Water Industry Act 1994 which provides
for the functions, obligations and powers of licensees under that
Act.
Clause 76 substitutes section 142 of the Water Industry Act 1994 to
provide that the rating authority may enter into an agreement
with a metropolitan water corporation with respect to the
collection by that corporation of any rate made and levied under
section 139 of that Act in respect of any land including any
interest payable in respect of that rate.
The clause also substitutes section 143 of the Water Industry
Act 1994 to require metropolitan water corporations to collect
rates and interest on behalf of the rating authority on certain
terms and conditions of collection.
Clause 77 repeals section 176 of the Water Industry Act 1994 dealing
with the Minister's power to delegate by instrument to a number
of persons. The clause also repeals section 176A of the Water
Industry Act 1994 which relates to a notice of disposition of
land to licensees.
Clause 78 repeals sections 177B and 177C of the Water Industry Act 1994
relating to authentication of documents and discharges into works
respectively.
Clause 79 repeals a number of provisions contained in the Water Industry
Act 1994--
sections 180 and 181, regarding the service of
documents on a licensee and the service of documents
by licensees;
section 182, which empowers the Treasurer to give a
guarantee in relation to the debts of a licensee;
section 183, which provides that regulations made under
the Act in relation to a licensee are authorised under
Part IV of the Trade Practices Act 1974
(Commonwealth) (now known as the Competition and
Consumer Act 2010 (Commonwealth)); and
28
section 183A, which provides an intention to alter or
vary section 85 of the Constitution Act 1975.
Clause 80 repeals Part 6A of the Water Industry Act 1994 which provides
for the appointment of and powers of authorised officers.
Clause 81 repeals paragraph (b) of the definition of water supply authority
contained in section 191 of the Water Industry Act 1994.
Clause 82 inserts a new Part 10 into the Water Industry Act 1994 which
contains a set of definitions and transitional provisions regarding
statements of obligation for, and rate collection agreements by, a
metropolitan water corporation under the Water Industry Act
1994.
This clause also provides that any regulations made under
sections 50, 51, 52, 53 and 184 of the Water Industry Act 1994
are taken to continue in force as if any reference in those sections
or any regulations made under those sections to an old licensee
were a reference to the relevant water corporation.
PART 4--MISCELLANEOUS AMENDMENT OF OTHER
ACTS
Clause 83 amends the definition of plumbing laws and substitutes the
definition of water authority in section 221B(1) of the Building
Act 1993 to make them consistent with the 2012 Act.
Clause 84 substitutes various references to a "licensee" under the Water
Industry Act 1994 in the Crown Land (Reserves) Act 1978 to
make it consistent with the 2012 Act.
Clause 85 substitutes the definition of a sewerage authority in
section 28A(2) of the Environment Protection Act 1970 to
make it consistent with the 2012 Act.
Clause 86 substitutes the definition of a water authority in section 50A(2)
of the Fisheries Act 1995 to make it consistent with the 2012
Act.
Clause 87 substitutes the definition of a water authority in section 82(1) of
the Geothermal Energy Resources Act 2005 to make it
consistent with the 2012 Act.
29
Clause 88 substitutes the definition of a water authority in section 195(1) of
the Greenhouse Gas Geological Sequestration Act 2008 to
make it consistent with the 2012 Act.
Clause 89 amends the definition of a water supply authority in section 2(1)
of the Health (Fluoridation) Act 1973 to make it consistent with
the 2012 Act.
Clause 90 substitutes section 7AB of the Limitation of Actions Act 1958
to provide that the right, title or interest in land of an Authority
within the meaning of the Water Act 1989 is not affected by any
adverse possession.
Clause 91 substitutes the definition of public authority in section 3 of the
Melbourne City Link Act 1995 to make it consistent with the
2012 Act.
Clause 92 amends the Mineral Resources (Sustainable Development) Act
1990 to omit various references to a "licensee" under the Water
Industry Act 1994.
Clause 93 substitutes the definition of a water authority in section 140(1) of
the Petroleum Act 1998 to make it consistent with the 2012 Act.
Clause 94 amends the Residential Tenancies Act 1997 to substitute
various references to a licensee under the Water Industry Act
1994 to make it consistent with the 2012 Act.
Clause 95 substitutes the definition of a water storage manager and amends
the definition of a water supplier in section 3 of the Safe
Drinking Water Act 2003 to make them consistent with the
2012 Act.
PART 5--REPEAL OF THE ACT
Clause 96 repeals this Act on 1 July 2014. In accordance with the
Interpretation of Legislation Act 1984 the repeal of this Act does
not affect the continuing operation of the amendments made by
it.
30