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Water and Catchment Legislation
Amendment Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
General
On 19 October 2016, the Government released Water for Victoria.
Water for Victoria is a strategic plan for the Management of Victoria's
water resources, now and into the future. It establishes a new long-term
direction for managing Victoria's water resources as Victoria deals with the
impacts of climate change and a growing population. The Bill provides for
the implementation of actions set out in Water for Victoria which require
legislative amendments to the Water Act 1989 and the Catchment and
Land Protection Act 1994.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill which are--
(a) amend the Water Act 1989--
(i) in relation to Aboriginal and other cultural values
and uses of waterways;
(ii) in relation to the social and recreational uses and
values of waterways;
(iii) to include specified Aboriginal parties in water
resource planning and the development and
review of strategies;
(iv) in relation to water resource assessments and
strategies;
581262 1 BILL LA INTRODUCTION 31/10/2017
(v) to further provide for the determination of
districts and for serviced properties;
(vi) to provide for functions of the Minister in
relation to salinity mitigation;
(vii) to provide for salinity impact charges and to
validate the imposition of salinity mitigation
charges;
(viii) to improve the operation of the Act; and
(b) amend the Catchment and Land Protection
Act 1994--
(i) in relation to the Victorian Catchment
Management Council and Melbourne Water
Corporation;
(ii) in relation to Aboriginal cultural values and
traditional ecological knowledge of management
of land and water resources;
(iii) to include specified Aboriginal parties in the
preparation of certain catchment strategies and
special area plans; and
(c) to make minor and related amendments to those Acts.
Clause 2 provides for commencement of the Bill. The provisions of
the Act come into operation on a day or days to be proclaimed.
All provisions that have not come into operation before on
30 October 2018 come into operation on that day.
Clause 3 provides that in the Bill the Water Act 1989 is called the
Principal Act.
Part 2--Amendment of the Water Act 1989
Clause 4 inserts new section 1(ea) in the Principal Act. A new purpose is
provided to ensure that Victoria's water resources and waterways
are managed in a way that considers Aboriginal cultural values
and uses and the social and recreational uses and values of
waterways.
2
Clause 5 sets out the definitions to be inserted into section 3 of the
Principal Act and amends some existing definitions that Act.
Definitions have been inserted into the Principal Act for
environmental area, recreational area, social and recreational
uses and values, determination of native title, native title holder,
recognition and settlement agreement, specified Aboriginal
party, Aboriginal person, northern water resources, annual
salinity impact charge, capital works salinity impact charge,
salinity impact zone and salinity impact charge.
The definitions of irrigation district, sewerage district, waterway
management district, serviced property and in-stream uses have
been amended. The new term water supply district is to replace
the term water district. The definition of Coliban water district
has been removed.
Clause 6 inserts new section 5A into Part 1 of the Principal Act. The Bill
introduces obligations on Authorities to give notice and consult
with specified Aboriginal parties in the preparation of certain
strategies and plans (see clauses 9, 13, 18, 20 and 45). Clause 6
gives certainty that the giving of a notice to, or consultation with,
a specified Aboriginal party will not affect any right or obligation
under a land use activity agreement or any other agreement under
the Traditional Owner Settlement Act 2010.
Clause 7 amends section 22C of the Principal Act. Section 22C sets
out what must be provided in a sustainable water strategy and
what the strategy must take into account. Clause 7 inserts new
subsection (3) which provides additional matters to be considered
or taken into account. These include opportunities to provide for
the following, consistently with the requirements of the Principal
Act or any other Act--
• Aboriginal cultural values and uses of waterways in the
region for which the Strategy applies;
• social and recreational uses and values of waterways in
the region for which the Strategy applies;
The following agreements and determinations, where they are
relevant to the region to which the Strategy relates--
• a recognition and settlement agreement and any further
agreement to a recognition and settlement agreement;
3
• an Aboriginal cultural heritage land management
agreement within the meaning of the Aboriginal
Heritage Act 2006 that is recorded on the Victorian
Aboriginal Heritage Register under section 145 of
that Act;
• any determination that native title exists;
• any relevant economic and environmental matters.
The new subsection (4) provides that a sustainable water strategy
that addresses a--
• decline in the long-term availability of surface water
or groundwater which has a disproportionate effect on
the environmental water reserve or on the allocation of
water for consumptive purposes; or
• a deterioration in waterway health for reasons related
to flow, identified in a long-term water resources
assessment--
must determine the action that is required to be taken to restore
the balance between the environmental water reserve and
allocation for consumptive purposes or to restore the health of
waterways.
Clause 8 amends section 22D of the Principal Act. Section 22D provides
for the Minister to appoint a consultative committee to advise
the Minister on the preparation of a sustainable water strategy.
In appointing a committee, the Minister must ensure that, so far
as it is possible, the committee is comprised of persons who have
knowledge or experience in the matters to be covered by the
strategy. The new section 22D(2) extends this requirement to
ensure that the membership of the committee includes, so far as
it is possible, at least one Aboriginal person who also has the
required knowledge or experience.
Clause 9 amends section 22E(b) of the Principle Act. Section 22E(b)
requires the Minister to give a notice of the preparation of a
sustainable water strategy to any Authority whose interests
the Minister considers likely to be affected by the strategy.
The new section 22E(1)(b) extends this requirement to provide
for a notice to be given to any specified Aboriginal party for an
area that is wholly or partly within the region for which the
strategy is being prepared.
4
New section 22E(2) specifies a minimum time in which
comments on a draft sustainable water strategy can be invited
by a notice issued under subsection 22E(1)(e).
Clause 10 inserts new sections 22G(3) and 22G(4) in the Principal Act.
New section 22G(3) provides that if the Minister endorses a new
sustainable water strategy for a region the Minister may revoke
or amend all or any part of an existing strategy for all or part of
the same region.
New section 22G(4) provides that if the Minister revokes or
amends an existing sustainable water strategy the Minister must
include a relevant notice in the new strategy that the Minister
endorses.
Clause 11 substitutes section 22I(1) of the Principal Act and inserts new
sections 22I(2A) and (5) into the Principal Act. Section 22I(1)
requires the Minister to review a sustainable water strategy at
the end of 10 years following the endorsement of the strategy.
New section 22I(1) removes the requirement for the Minister to
review a strategy if a long-term water resources assessment has
an impact. The review of a strategy becomes one of the options
available to the Minister following an assessment--see clause 15.
The requirement to review a strategy at the end of 10 years is
retained.
New section 22I(2A) provides that, despite the requirement to
review a sustainable water strategy at the end of 10 years, the
Minister is not required to carry out a review if a later strategy
for all or part of the region has been endorsed or if the Minister
is in the process of preparing a draft strategy for the all or part
of the same region. This creates more flexible arrangements
for reviewing strategies and removes potential duplication.
New section 22I(5) provides that after completing a review of a
sustainable water strategy, the Minister may amend the Strategy.
Clause 12 substitutes section 22K of the Principal Act. New section 22K
requires the Minister to undertake a program of long-term water
resources assessments across Victoria and sets out when the
program must commence.
Clause 12 substitutes section 22K of the Principal Act with a new
section 22K to recognise the new arrangements put in place for
the Murray Darling Basin and that a review of the Basin Plan is
to be carried out in 2026. The new section requires the Minister
5
to commence a long-term water resource assessment for water
resources in northern Victoria and affected by the Basin Plan by
31 January 2025. The matters identified in the assessment can
then inform the review of the Basin Plan. The requirement to
then commence a new assessment after 12 years is to be retained.
For the rest of the State, the requirements relating to the timing
of long-term water resources assessments do not change but
the dates have been made explicit and are no longer tied to the
commencement of section 14 of the Water (Water Resource
Management) Act 2005.
Clause 13 substitutes section 22M(a) of the Principal Act. Section 22M
requires the Minister when preparing a draft long-term water
resources assessment to give notice of the preparation of the
assessment and the process by which the assessment will be
carried out to any Authority whose interests the Minister
considers are likely to be affected. Clause 13 extends this
requirement to provide that the notice must also be given to
each specified Aboriginal party for an area that is wholly or
partly within the area on which the water resources, the subject
of the assessment, are located.
Clause 14 substitutes section 22O(3) of the Principal Act to extend the
period of time for completing a long-term water assessment
without the Minister being required to publish reasons for the
delay. Currently, if the assessment has not been completed
within 12 months reasons for the delay must be published, on
publication of the assessment. Clause 14 extends the 12 months
period to 18 months. Assessments are complex undertakings
and 18 months is a more realistic timeframe.
Clause 15 amends section 22P of the Principal Act to insert new subsections
22P(2) and (3). Section 22P requires the Minister to undertake
a review where the Minister is of the opinion, that a long-term
water resources assessment has identified a decline in the
long-term availability of surface water or groundwater which
has a disproportionate effect on the environmental water reserve
or on the allocation of water for consumptive purposes or a
deterioration in waterway health for reasons related to flow.
The purpose of the review is to determine the appropriate action
to be taken to restore the balance between the environmental
water reserve and the allocation of water for consumptive
use or to restore the health of waterways. Clause 15 amends
6
section 22P to extend the matters to be taken into account
when undertaking review. In addition to economic and
environmental matters, the Minister must have regard to any
relevant Aboriginal cultural values and uses of waterways and
to any social and recreational matters.
Clause 15 also amends the section to provide that the Minister
will not be required to undertake a review if the Minister
endorses a sustainable water strategy or a review of a strategy
that determines the action to be taken.
Clause 16 inserts new section 22PA of the Principal Act to impose time
limits on the Minister for determining the actions required to
address the matters identified in the long term water assessment
and spelt out in section 22P--either by way of a review, the
endorsement of a sustainable water strategy or the endorsement
of a review of a strategy. The Minister must determine the action
that is required to be taken within 2 years and 6 months after
endorsing the assessment but can extend this period provided
reasons are for so doing are published.
Clause 17 amends section 22Q(2) of the Principal Act. Section 22Q(2)
sets out the composition of a consultative committee to
advise the Minister on a review undertaken under section 22P
following a long-term water resources assessment. Clause 17
provides that the Minister must make sure that, so for as it is
possible, the committee also includes at least one Aboriginal
person residing in Victoria who has experience or knowledge
of the matters to be covered by the review.
Clause 18 substitutes section 22R(1)(b) of the Principal Act to require that,
in addition to any Authority or other person whose interests are
likely to be affected by the review established under section 22,
the Minister must give a notice of the review to each specified
Aboriginal party for an area that is wholly or partly within the
area to which the water resources the subject for the review are
related. Section 22R(2) and (3) of the Principal Act are repealed.
These subsections made provision in relation to the timing of
reviews under section 22P and the validity of reviews and actions
following reviews. These matters are now dealt with under new
section 22PA (inserted by clause 16).
7
Clause 19 inserts new subsection 29(2)(a)(ii) in the Principal Act.
Section 29 requires that where the Minister declares a water
supply protection area, the Minister must appoint a consultative
committee to prepare a draft management plan for the area.
Section 29(2) sets out provisions that apply to the composition
of the committee. Clause 19 provides that if there is one or
more specified Aboriginal parties for an area that is wholly or
partly within the water supply protection area, the Minister
must, so far as possible, ensure that the committee includes at
least one person who is a representative of a one of the specified
Aboriginal parties.
Clause 20 inserts new subsection 31(1)(ab) and 31(1AA) of the Principal
Act to require the consultative committee to give a notice that a
draft management plan has been prepared and a copy of the draft
plan to any specified Aboriginal party for an area that is wholly
or partly in the water supply protection area. A notice must
invite submissions on the draft management plan to be made in
the manner specified in the notice and by a date set out in the
notice which is to be no less than 35 days.
A legislative note is provided to clarify that the preparation of
a draft management plan may be a land use activity under the
Traditional Owner Settlement Act 2010 if it relates to public
land to which a land use activity agreement under the Act
applies.
Clause 21 substitutes section 33AAB(1)(c) of the Principal Act to extend
the matters the Minister must have regard to before permanently
qualifying any rights to water. The matters include any relevant
economic and environmental matters, Aboriginal cultural values
and uses of waterways and social and recreational uses and
values of waterways.
Clause 22 inserts a new subsection 33DD(2) in the Principal Act.
Section 33DD sets out the functions of the Victorian
Environmental Water Holder and requires that these are to
be carried out in accordance with the objectives set out in
section 33DC. Clause 22 amends section 33DD to also require
the Water Holder to consider opportunities to provide for
Aboriginal cultural values and uses of waterways and social
and recreational uses and values of waterways, consistently
with its objectives and the requirements of the Principal Act
and any other Act.
8
Clause 23 insets new subsection 76(8) in the Principal Act. Section 76
requires a person to obtain an approval to dispose of any matter
underground by means of a bore. To avoid duplication with the
requirements of the Offshore Petroleum and Greenhouse Gas
Storage Act 2010, new subsection (8) enables the Minister to
exempt a person from the requirements of section 76 if the
Minister has been consulted in relation to the relevant approvals
under the Offshore Petroleum and Greenhouse Gas Storage Act
2010 that are described in the section.
Clause 24 inserts new subsection 92(2A) into the Principal Act.
Section 92 sets out functions, powers and duties of a water
corporation conferred on it under the Water Act 1989 or any
other Act. Clause 24 requires that in performing its functions
a water corporation must consider opportunities to provide
for Aboriginal cultural values and uses of waterways and
the social and recreational uses and values of waterways,
consistently with its objectives and the requirements of the
Principal Act or any other enactment.
Clause 25 substitutes section 93(c) of the Principal Act. Section 93 sets
out a number of principles that a water corporation must have
regard to when in performing its functions, exercising it powers
and carrying out its duties. Clause 25 amends section 93(c) so
that a water corporation has regard to the need to integrate both
long term and short term economic, environmental and equitable
considerations, Aboriginal cultural considerations and social and
recreation considerations.
Clause 26 substitutes Division 1AA, 1, 1A, 2, 3 and 4 of Part 6A of the
Principal Act with a new Division 1 to provide a simpler
framework for the determination of water supply, sewerage,
irrigation and waterway management districts. Water districts
are to be renamed water supply districts to more accurately
describe the services provided.
New section 122G provides for the Minister to determine a
water supply district, sewerage district or irrigation district
for an Authority that is a water corporation and to determine
a waterway management district for an Authority. Victoria's
catchment management authorities and the Melbourne Water
Corporation currently have waterway management districts.
9
The district must be described in the determination by reference
to a plan lodged in the central plan office. The determination
must be published in the Victorian Government Gazette and will
take effect from the date specified in the determination which
must be no earlier than the date of publication of the
determination in the Gazette.
New section 122H provides that when a determination under
the new section 122G takes effect, any district that the Authority
had before the determination and which is of the same kind as
the new district is wholly replaced if the old district and the new
district comprise the same area or is partially replaced to the
extent that the new district comprises part of the old district.
New section 122I provides that the Minister, by
determination may vary or abolish the whole or part of a
water supply, sewerage, irrigation or waterway management
district. Any variation or abolition must be described in the
determination by reference to a plan lodged in the central
plan office. The determination must be published in the
Government Gazette and will take effect from the date
specified in the determination which must be no earlier than
the date the determination is published in the Government
Gazette.
New section 122J requires that before making a determination,
the Minister must consult with the Authority for whom the
district is to be determined, abolished or varied, any other
Authority that has a district that may be affected by the
determination and any other person the Minister considers
should be consulted.
New section 122K provides that before making a determination
the Minister must have regard to any submissions received under
new section 122J and to the public interest.
New section 122L provides that on the commencement of the
section 5 definitions, any water, sewerage or irrigation district
that a water corporation has or any waterway management
district that an Authority has before the commencement is
taken to be a water supply, sewerage, irrigation or waterway
management district of that water corporation or Authority as
if it were determined under the new Division 1 of the Principal
Act.
10
New section 122M provides that the waterway management
district of Melbourne Water Corporation is the land identified
in the plan lodged in the central plan office and numbered
LEGL./05-406.
Clause 27 amends sections 122Z(1)(a) and 122Z(1)(b) of the Principal Act
to replace the reference to "water districts" with "water supply
districts" as a consequence of the district being renamed.
Clause 28 amends section 122ZA(1)(b) of the Principal Act to replace the
reference to "water districts" with "water supply districts" as a
consequence of the district being renamed.
Clause 29 repeals section 122ZF of the Principal Act which is a redundant
regulation making power relating to environmental and
recreational areas. See clause 57 for the new regulation making
powers.
Clause 30 amends section 122ZA(1)(b) of the Principal Act to replace the
reference to "water districts" with a reference to "water supply
districts" as a consequence of the district being renamed.
Clause 31 amends section 144 of the Principal Act to make a number of
improvements and consequential amendments The changes
to subsection (1)(c) relate to irrigation districts to more clearly
distinguish between water delivery services and irrigation
drainage services or salinity mitigation services. The distinction
is important for 2 reasons. The obligations and requirements of
Part 11 in relation to serviced properties only relate to properties
that have been declared for the purpose of receiving a water
delivery services. Secondly, the criteria for declaring a property
are different. In relation to irrigation drainage and salinity
mitigation services, the services must be in relation to the land or
they must directly benefit the land.
Subsection 144(2)(b) of the Principal Act is repealed to remove
the requirement for an Authority to publish a notice declaring
serviced properties in a newspaper. Instead an Authority will
be required under amended subsection 144(3) to publish the
notice on the Authority's internet site for at least 2 months before
the date on which the land becomes serviced property and in the
Government Gazette.
11
Clause 32 inserts a new subsection 144A(2) of the Principal Act to provide
that if the waterway management district of the Melbourne
Water Corporation is varied by a determination under the
new section 122I and the waterway management district as
varied does not include properties that were in that waterway
management district before the variation, the properties that
are no longer within that waterway management district are
taken not to be serviced properties for the purposes of Melbourne
Water Corporation's powers, functions and duties under Part 10
of the Principal Act.
Clause 33 amends section 158(3) of the Principal Act to provide that where
a person applies to an Authority for an information statement in
relation to any land that is within the district of an Authority, the
Authority must issue an information statement to the applicant
that gives details, in addition to those details already provided
under section 158(3), of whether or not the land is serviced
property and, if so, the purposes for which the land is a serviced
property.
Clause 34 repeals section 160(1)(b) the Principal Act which is a redundant
by-law making power in relation to environmental areas and
recreational areas--see clause 57 for the new regulation making
powers.
Clause 35 substitutes in section 161D of the Principal Act the reference to
"water districts" with "water supply districts" as a consequence
of the district being renamed.
Clause 36 substitutes in the heading of Division 1 of Part 8 of the Principal
Act the reference to "water districts" with "water supply districts"
as a consequence of the district being renamed.
Clause 37 substitutes in section 162 of the Principal Act the reference to
"water districts" with "water supply districts" as a consequence
of the district being renamed.
Clause 38 substitutes in section 163(1) of the Principal Act the reference to
"water districts" with "water supply districts" as a consequence of
the district being renamed.
Clause 39 substitutes a new 164(2) of the Principal Act to impose new
requirements on a water corporation when providing services
outside its water supply district. The approval of the Minister
will not be required. Instead, the service must be capable of
12
being conveniently provided by resources not immediately
required to carry out the water corporation's functions and, if
provided to land within another water corporation's water supply
district, that water corporation has agreed to the service being
provided.
Clause 40 substitutes in section 165(1) and paragraphs 165(4)(a) and (b)
of the Principal Act the reference to "water districts" with
"water supply districts" as a consequence of the district being
renamed.
Clause 41 substitutes in section 171B(a)(iv) of the Principal Act the
reference to "water districts" with "water supply districts"
as a consequence of the district being renamed.
Clause 42 substitutes a new 174(2) of the Principal Act to impose new
requirements on a water corporation when providing services
outside its sewerage district. The approval of the Minister will
not be required. Instead, the service must be capable of being
conveniently provided by resources not immediately required to
carry out the water corporation's functions and, if provided to
land within another water corporation's sewerage district, that
water corporation has agreed to the service being provided.
Clause 43 substitutes section 179 of the Principal Act to deal with the
provision of services under section 180 and 183 in relation to
septic tanks. The amendments are consequential upon the
new provisions relating to the determination of sewerage
districts and changes to the procedural requirements relating to
the declaration of a serviced properties. The new section enables
a water corporation to declare land within a sewerage district to
be a serviced property for the purpose of the provision of such
services and to impose a fee under a tariff for the provision of
such services.
Clause 44 substitutes section 189(1)(a) and section 189(2) of the Principal
Act. Section 189 sets out the functions of an Authority that
has a waterway management district in relation to designated
waterways and designated land or works. Subsection(1)(a)
expands the planning functions of an Authority to include
identifying and planning for the values of waterways and land,
including social and recreational uses and values and Aboriginal
cultural values and uses.
13
In performing its functions under the Principal Act, subsection
(2) requires an Authority to also consider opportunities to
provide for Aboriginal cultural values and uses of waterways
and the social and recreational uses and values of waterways,
consistently with its objectives and the requirements of the
Principal Act or any other Act.
Clause 45 amends section 190(3) and inserts new subsection 190(4) in the
Principal Act. The amendments to subsection (3) mean that an
Authority that is preparing a regional waterway strategy must,
in addition to the other matters specified in section 190(3), take
into account any recognition and settlement agreement under
the Traditional Owner Settlement Act 2010 and any further
agreement to a recognition settlement agreement, any Aboriginal
cultural heritage land management agreement within the meaning
of the Aboriginal Heritage Act 2006 that is recorded on the
Victorian Aboriginal Heritage Register and any determination
that native title exists in relation to the area affected by the
regional waterway strategy.
The Authority will also have to take into account any social
and recreational uses and values of waterways and Aboriginal
cultural values and uses of waterways within its waterway
management district.
The new subsection (4) imposes new procedural requirements
relating to the making of a regional waterway strategy.
Clause 46 inserts new sections 193(2)(d) and 193(2)(e) and 193(9) in the
Principal Act. Section 193 enables an Authority to close access
to a designated waterway or designated land to people, animals
and vehicles either permanently or for a specified period.
Section 193(2) sets out classes of person to whom access cannot
be denied. Clause 46 extends the list of persons to include any
member of a traditional owner group who has traditional owner
rights in relation to the waterway or designated land or works
under a recognition and settlement agreement or any native title
holder for the area who has native title rights and interests within
the meaning of section 233 of the Commonwealth Native Title
Act 1993.
New section 193(9) sets out the definition of traditional owner
rights as having the same meaning as in the Traditional Owner
Settlement Act 2010.
14
Clause 47 amends the definition of serviced property in section 220.
This definition is relevant only to Part 11 of the Principal Act
which deals with irrigation districts. It confines the definition
to serviced properties that receive a water delivery service.
Clause 48 inserts new Part 11A in the Principal Act. The new Part clarifies
the legislative arrangement for the imposition of charges for
salinity mitigation works and measures. The new section 232
enables the Minister to determine an area of land to be a salinity
impact zone and sets out the procedural requirements relating to
the making of a determination. A determination can be amended
in the same manner.
The new Division 2 of Part 11A sets out the functions and
powers of the Minister in relation to salinity mitigation. The new
section 232A sets out those functions which include to carry out
works and measures to mitigate or offset salinity impacts of
irrigation, to operate and maintain such works and other works
to mitigate or offset salinity impacts of irrigation, to monitor
groundwater, surface water and irrigation development for
salinity impacts of irrigation, to develop and manage specified
programs and to monitor, evaluate, report on and account for
programs to mitigate or offset salinity impacts of irrigation.
The Minister is to have all the powers necessary to carry out
these functions.
The new Division 3 of Part 11A deals with salinity impact
charges. The new section 232B empowers the Minister to fix,
by a determination, a capital works salinity impact charge and an
annual salinity impact charge. The new section 232B specifies
the purposes for which each type of charge can be fixed and the
way in which each type of charge can be fixed. Provision is also
made for a determination to exempt certain persons or classes of
persons from paying a charge, to specify methods of payment and
any other necessary matter or thing. A determination must be in
writing and published in the Government Gazette.
The new section 232C allows for the amount of a capital works
and an annual salinity impact charge to be automatically adjusted
following consumer price index increases.
The new section 232D deals with the imposition of a capital
works salinity impact charge and specifies the circumstances in
which the charge can be imposed on the holder of a water-use
licence.
15
The new 232E deals with the imposition of an annual salinity
impact charge. The charge can be imposed on the holder of a
water use licence that authorises the use of water on land in a
salinity impact zone and can be imposed annually.
The new section 232F provides that the Minister may by
determination under section 232B set out cases or classes of
cases in which a capital works salinity impact charge or an
annual salinity impact charge that would otherwise by imposed
on a licence holder under section 232D or section 232E is not
imposed on the licence holder.
Clause 49 substitutes in section 258(1A) of the Principal Act the reference
to "water districts" with "water supply districts" as a consequence
of the district being renamed.
Clause 50 repeals sections 259(1)(c) and 259(11) of the Principal Act.
An Authority that provides irrigation drainage and salinity
mitigation services in an irrigation district can impose fees
under a tariff on any property within the district. The repeal
of section 259(1)(c) means that a charge for irrigation drainage
and salinity mitigation services in irrigation districts can only
be imposed under section 259(1)(a) on a serviced property.
Section 259(11) is a redundant provision.
Clause 51 substitutes section 273AA of the Principal Act to provide that
Division 7 of Part 13 which deals with the payment and recovery
of money does not apply to Melbourne Water Corporation or
salinity impact charges. Currently Division 7 does not apply to
Melbourne Water Corporation and as salinity impact charges are
imposed by the Minister it is not appropriate that it applies to
such charges.
Clause 52 amends 274 to simplify arrangements for paying a fee imposed
under a tariff by instalments.
Clause 53 substitutes in section 281A(2) of the Principal Act the reference
to "water districts" with "water supply districts" as a consequence
of the district being renamed.
Clause 54 substitutes Division 10 of Part 13 of the Principal Act to
deal with the payment of salinity impact charges that may
be imposed under the new sections 232D and 232E.
16
The new section 287A provides for the Minister to require
payment by notice and the new 287B spells out the matters
a notice must specify.
The new section 287AC specifies when a salinity impact charge
must be paid and the new section 287AD specifies that an unpaid
salinity impact charge (including interest) is a debt due to the
Crown and recoverable in a court.
The new section 287AE deals with interest on an unpaid salinity
impact charge and the new section 287AF specifies that an
unpaid salinity impact charge can become a charge on property.
The new section 287AG deals with the collection of salinity
impact charges.
The new section 287AH provides for the application of salinity
impact charges. The Minister can apply those charges for
payment of such amounts as determined or required to perform
the Minister's functions in relation to salinity mitigation under
section 232A and for the payment of costs of the administration
of Part 11A and Division 10 of Part 13 of the Principal Act.
The Minister can apply the charges to perform the Minister's
functions in relation to land within Victoria (whether or not the
land is within a salinity impact zone) or land that is outside
Victoria, if the application of the charges is to meet the State's
obligations under the Murray Darling Basin Agreement.
Clause 55 amends section 287F of the Principal Act to substitute references
to "water corporation" and "water corporations " for "Authority"
and "Authorities" These changes extend the use of allocation
statements for the transfer of property, rights and liabilities to
arrangements involving catchment management authorities.
Clause 56 amends section 306 of the Principal Act to prevent the powers
to determine a salinity impact zone under section 232, to fix a
salinity impact charge under section 232B and to apply a salinity
impact charge in relation to land that is outside Victoria under
section 287AH(2)(b) from being delegated. It also clarifies that
if the Minister delegates other powers, discretions, functions,
authorities and duties under the provisions dealing with salinity
impact charges, the Minister may give directions to the delegate
in relation to the exercise or performance of those powers,
discretions, functions, authorities or duties.
17
Clause 57 amends section 324(1) of the Principal Act to provide for
regulations to be made to regulate the management and use
of environmental and recreational areas. The new provisions
will replace the by-law making powers in section 160(1)(b)
and regulation making powers in section 122ZA.
Clause 58 inserts new Part 16 into the Principal Act to deal with
transitional, validation and other matters.
New Division 1 deals with serviced properties. The new
section 335 inserts a definition of serviced property
commencement for the purposes of the new Division 2,
being the date on which the new definition of a serviced
property comes into operation.
New section 336 provides that properties that were
serviced properties immediately before the serviced property
commencement are taken to be serviced properties under the
new provisions as if they had been declared to be serviced
properties under the relevant provisions of section 144(1) of
the Principal Act.
New section 337 provides a transitional mechanism for other
properties to become serviced properties. New section 337(1)
enables an Authority, within 12 months of the serviced property
commencement, to identify land as serviced property for the
purposes of Part 8, 9, 10 or 11 of the Principal Act and lodge
a plan in the central plan office showing the identified land.
The Authority must publish a notice in the Government Gazette
that such a plan has been lodged.
New section 337(2) provides that land identified in a plan as a
serviced property is taken to be land declared under the relevant
provisions of section 144(1) to be a serviced property.
New section 337(3) sets out the criteria to be satisfied before land
is identified in a plan as serviced property. A relevant service
must have been provided and the Authority must have imposed
or purported to impose fees under a tariff for the provision of
those services for 2 years or more before the serviced property
commencement.
The transitional mechanism provided for in new section 337
will enable properties in an irrigation district that have been
receiving irrigation drainage or salinity mitigation services to be
declared to be serviced properties by being identified in a plan.
18
Under current arrangements it is not necessary to declare such
properties as serviced properties for the purpose of imposing a
fee under a tariff. Upon the commencement of clause 50 of the
bill, a fee will only be able to be imposed for irrigation drainage
or salinity mitigation services if the properties have been declared
serviced properties under the relevant provisions of section 144.
The transitional mechanism is also available for Authorities to
declare properties, identified through improved record keeping
processes, that have been receiving other services but that have
not or may not been declared to be serviced properties.
New section 338 provides that the Act is taken to have applied
to any fee imposed under a tariff for the provision of services to
land identified in a plan lodged under the new section 337, as if,
at the time at which the fee was imposed or purported to have
been imposed and for the period to which the fee was related or
purported to be related, that the property was a serviced property.
The new Division 2 provides for the validation of salinity
mitigation charges that have been imposed under the existing
legislative framework (see current sections 287A and 64R of
the Principal Act).
The new section 339 inserts a definition of validation date for
the purposes of the new Division 2, being 31 October 2017,
the date on which this bill is introduced into the Parliament.
The new section 340 provides that any requirement or
purported requirement to make a payment or payments under
section 287A(1), as in force at any time before the validation
date, and any payment collected or received or purportedly
collected or received under that section as in force at any time
before the validation date is taken to be, and always to have
been, valid or validly collected or received. Any action, matter
or thing taken or arising from such a requirement, collection or
receipt (under the Principal Act or otherwise), is taken to be,
and always to have been, valid and effective. The intention is
to ensure that such requirements, payments and actions are
valid irrespective of whether there has been a failure to comply
with or consider certain elements set out under section 287A.
This new section also validates the application of charges under
section 287A to works and measures carried out or to be carried
out after the commencement of this section.
19
The new section 341 provides that any fee relating to salinity
mitigation or offsetting fixed or purportedly fixed under
section 64R, collected or received or purportedly collected or
received, as in force at any time before the validation date is
taken to be, and always to have been, validly fixed, collected
or received. Any action, matter or thing taken or arising from
such a fixing, collection or receipt, whether under the Principal
Act or otherwise is taken to be and always to have been valid
and effective.
The new section 342 provides that proceedings commenced
prior to the validation date and not completed by that date are
not affected by new sections 340 and 341.
The new Division 3 provides that a Regulatory Impact Statement
is not required for the first determination made by the Minister
under sections 232 and 232B and that such determinations expire
after 12 months from the date on which those determinations are
published in the Government Gazette.
Part 3--Repeal of spent and redundant provisions
in the Water Act 1989
Clause 59 repeals section 2A of the Principal Act. Section 2A preserved
cross references between certain sections in the Local
Government Act 1958 and the Local Government Act 1989,
only until the commencement of section 154 of the 1989 Act.
Section 154 commenced in May 1990.
Clause 60 amends section 17(1) of the Principal Act to omit the reference
to "or section 74 of the Water Industry Act 1994". Section 74
of the Water Industry Act 1994 has been repealed and the
reference is redundant.
Clause 61 repeals section 22(4) of the Principal Act as the section is
now redundant. Section 22(4) refers to matters specified in
Schedule 11 which has been repealed.
Clause 62 repeals section 34(1)(b) of the Principal Act. This subsection
refers to the holder of a licence under Division 1 of Part 2 of
the Water Industry Act 1994. Part 2 was repealed in 2012.
This section is now redundant.
20
Clause 63 repeals section 35 of the Principal Act. Section 35 contains
a mechanism for converting pre-existing l entitlements to
bulk entitlements under the principal Act. All pre-existing
entitlements have now been converted. This section is now
redundant.
Clause 64 repeals section 36(1)(e) of the Principal Act. This subsection
refers to the holder of a licence under Division 1 of Part 2 of
the Water Industry Act 1994. Part 2 was repealed in 2012
and provision is redundant.
Clause 65 repeals subsection 48B(1)(e) of the Principal Act.
This subsection refers to the holder of a licence under
Division 1 of Part 2 of the Water Industry Act 1994.
Part 2 was repealed in 2012 and references under the
section 48B(1)(e) of the Principal Act are redundant.
Clause 66 repeals subsection 51(1)(d) of the Principal Act.
This subsection refers to the holder of a licence under
Division 1 of Part 2 of the Water Industry Act 1994.
Part 2 was repealed in 2012. The provision is redundant.
Clause 67 repeals subsection 171B(a)(i) and (ii) and substitutes a reference
to paragraphs (a)(i) to (vi) with a reference to paragraphs (a)(iii)
to (vi) in subsection 171B(c). Subsections 171B(1)(a)(i) and (ii)
refer to holders of licences under the Water Industry Act 1994.
These references are now redundant. The amendments to
subsection 171B(c) are consequential.
Clause 68 repeals section 181 of the Principal Act. Section 181 confers
a power for an Authority to make by-laws for trade waste.
The section is redundant because all the trade waste by-laws
have now been replaced by the Water (Trade Waste) Regulations
2013.
Clause 69 repeals section 184A(a)(i) of the Principal Act. This section
refers to a holder of a licence of a water and sewerage licence
under the Water Industry Act 1994. This reference is
redundant.
Clause 70 amends section 193(8) to omit the reference to "or section 62
of the Water Industry Act 1994. Section 62 of the Water
Industry Act 1994 was repealed in 2012.
21
Clause 71 repeals Part 14A of the Principal Act which relates to the
Victorian Water Trust Advisory Council. The Council no
longer exists and the Part is redundant.
Clause 72 repeals sections 330A, 330B and 330C of the Principal Act
as these sections give effect to schedules 16 and 17 which
are also being repealed (see below).
Clause 73 repeals section 332 and 333 of the Principal Act which contain
transitional arrangement relating to Langwarry Drainage Trust.
The provisions are no longer required.
Clause 74 repeals Schedule 4 of the Principal Act which contains
transitional arrangements relating to the Water Amendment
(Victorian Environmental Water Holder) Act 2010.
The provisions are no longer required.
Clause 75 repeals Schedule 16 of the Principal Act which contains
transitional arrangements relating to the Water (Governance)
Act 2006. The provisions are no longer required.
Clause 76 repeals Schedule 17 of the Principal Act which contains
transitional arrangements relating to the Water Amendment
(Governance and Other Reforms) Act 2012. The provisions
are no longer required.
Clause 77 makes a statute law revision to amend sections 145(1)(d) and (e)
of the Principal Act to become sections 145(1)(a) and (b).
Part 4--Amendment of the Catchment and
Land Protection Act 1994
Clause 78 sets out new definitions to be inserted into section 3(1) of the
Catchment and Land Protection Act 1994. New definitions
for Melbourne Water Corporation, waterway management
district, Aboriginal person, determination of native title, native
title holder, recognition and settlement agreement, specified
Aboriginal party, and traditional owner group entity have been
inserted into the Principal Act.
Clause 79 amends section 4(c) of the Catchment and Land Protection
Act 1994. Section 4 of the Act sets out the objectives of the Act.
Section 4(c) states that it is an objective to establish processes
and encourage and support participation of land holders, resource
managers and other members of the community in catchment
22
management and land protection. Clause 47 amends this section
to extend the objective to include specified Aboriginal parties.
Clause 80 amends section 7(2) of the Catchment and Land Protection
Act 1994. Section 7 sets out the composition of the Victorian
Catchment Management Council. The council is appointed
by the Governor in Council on the recommendation of the
Minister. Clause 81 amends section 7(2) to require the Minister
to recommend, so far as it is possible, an Aboriginal person with
experience and knowledge of Aboriginal cultural values and
traditional ecological knowledge of management of land and
water resources.
Clause 81 amends section 12(1)(c) of the Catchment and Land Protection
Act 1994. Section 12 sets out the functions, powers and duties of
an Authority under the Act. Clause 82 amends an Authority's
duty to promote the co-operation of persons and bodies involved
in the management of land and water resources in the region in
preparing and implementing a regional catchment strategy and
special area plans to include representatives of specified
Aboriginal parties.
Clause 82 inserts new section 12A in the Catchment and Land Protection
Act 1994 to provide new functions and duties for the Melbourne
Water Corporation in its waterway management district for the
preparation of special water supply catchment area plans for
water supply catchment areas. The new functions and duties
are consistent with the functions and duties of catchment
management authorities when preparing special area plans in
their catchment and land protection regions under section 12 of
the Act.
New subsection 12A(1) sets out the new functions which include
to--
• prepare special water supply catchment area plans
for water supply catchment areas in its waterway
management district and to co-ordinate and monitor
the implementation of such plans; and
• promote the co-operation of persons and bodies and
bodies involved in the management of land and water
resources in the district, including specified Aboriginal
parties, in preparing and implementing such plans.
23
New subsection 12A(2) provides Melbourne Water Corporation
with the power to do all things necessary or convenient to be
done in performing its functions under the Catchment and Land
Protection Act 1994. New subsection 12A(3) provides that
new subsection (2) is not limited by any other provisions of the
Catchment and Land Protection Act 1994 that confers a power
on Melbourne Water Corporation.
New section 12A(4) confirms that the Melbourne Water
Corporation has the duties conferred on it under the Catchment
and Land Protection Act 1994.
Clause 83 inserts new subsection 24(2)(ba) in the Catchment and Land
Protection Act 1994. Section 24(2) sets out what a regional
catchment strategy must do. Clause 84 extends the matters set
out in section 24(2), to include the requirement for a regional
catchment strategy to have regard to Aboriginal cultural values
and traditional ecological knowledge of management of land
and water resources of the catchments in the region.
Clause 84 inserts new section 27A in the Catchment and Land Protection
Act 1994 to enable Melbourne Water Corporation to recommend
to the Minister that land in its waterway management district
should be declared a special water supply catchment area or that
an existing declaration be revoked or amended.
New subsection 27A(2) requires the Minister when considering
a recommendation, must have regard to how the existing or
potential use of the area may adversely affect the water quality
or aquatic habitats, aquifer recharge areas or aquifer discharge
areas. New subsection 27A(3) provides for the Minister to
accept or reject Melbourne Water Corporations' recommendation.
New subsection 27A(4) provides that where the Minister
accepts a recommendation the Minister may recommend that
the Governor in Council make the appropriate order under
section 27A(5).
New subsection 27A(5) provides that on the Minister's
recommendation, the Governor in Council may by Order
published in the Government Gazette, declare land to be a
special water supply catchment area or revoke or amend the
declaration. To avoid doubt, new subsection 27A(6) provides
that a declaration made under subsection 27A(5) may include
roads and roadsides as part of a special water supply catchment
area.
24
New subsection 27A(7) confirms that where Melbourne Water
Corporation has made a special water supply catchment area plan
under the new section 12A, a reference in the Catchment and
Land Protection Act 1994 or any other enactment to special
area plan includes a reference to special water supply catchment
area plan, a reference to Authority includes Melbourne Water
Corporation and a reference to a region or a catchment and land
protection region includes a reference to the waterway
management district of Melbourne Water Corporation.
Clause 85 inserts section 30(1)(ab) in the Catchment and Land Protection
Act 1994. Section 30(1) sets out what a special area plan must
do. Clause 53 extends the current obligations to require a plan
to have regard to Aboriginal cultural values and traditional
ecological knowledge of management of land and water
resources of the special area to which the plan applies.
Clause 86 amends Schedule 2 of the Catchment and Land Protection
Act 1994 to insert new requirements for the preparation of
management plans--being regional management plans or a
special area plans.
Clause 2 of Schedule 2 requires an Authority preparing a
management plan to consult with any public authority whose
interests the Authority considers are likely to be affected by the
plan and any landowners affected by the plan. New clause 2(4A)
and (4B) extends this duty to require consultation with any
specified Aboriginal party for an area that is wholly or partly
within the area affected by the plan.
New subclause 4A provides an Authority must give notice of the
preparation of a management plan to each specified Aboriginal
party for an area that is wholly or partly within the area affected
by the management plan. New subclause 4B requires a notice
to specify the location of the management plan and invite
submissions which are to be made in the manner specified in
the notice and to be made by a date specified in the notice.
New subclause 6 provides that in preparing a management
plan the Authority must take into account any recognition and
settlement agreement under the Traditional Owner Settlement
Act 2010 and any further agreement to a recognition settlement
agreement, any Aboriginal cultural heritage land management
agreement within the meaning of the Aboriginal Heritage
Act 2006 that is recorded on the Victorian Aboriginal Heritage
25
Register and any determination of native title that native title
exists in relation to the area affected by the management plan.
Part 5--Repeal of amending Act
Clause 87 provides that the Water and Catchment Legislation
Amendment Act 2017 will be automatically repealed on
30 October 2019. The repeal of the Act does not affect
the continuing operation of the amendments made by it
(see section 15(1) of the Interpretation of Legislation
Act 1984).
26