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Water and Catchment Legislation
Amendment Bill 2019
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;
591042 1 BILL LA INTRODUCTION 19/3/2019
(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 impact
charges;
(viii) to further provide for offences and related
provisions to promote compliance with the Act
and enforcement of the Act;
(ix) 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 19 March
2020 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 substitutes or amends some existing definitions
that Act. Definitions have been inserted into the Principal Act
for water supply district, 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 charge, salinity impact zone and
water infringement offence.
The definitions of irrigation district, sewerage district, waterway
management district and serviced property have been substituted
and the definitions of in-stream uses and authorised person have
been amended. The new definition of water supply district is to
replace the term water district which has been repealed as has the
definition of Coliban water district.
Clause 6 amends section 5 of the Principal Act to include certain new and
amended offence provisions in the Principal Act as provisions
that will bind the Crown.
Clause 7 inserts new section 5A into 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 11, 15, 20, 22 and 77). Clause 7
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 8 inserts new section 6AA into the Principal Act. It provides
for the extra-territorial operation of the Principal Act.
New section 6AA provides that it is the intention of Parliament
that the operation of the Principal Act is, as far as possible, to
include operation in relation to things, land, acts, transactions and
matters (wherever situated, done, entered into or occurring) in
order to give effect to any intergovernmental agreement to which
the State is a party and which is relevant to the operation of the
Principal Act.
New section 6AA is being inserted to clarify that the operation
of the Principal Act is not confined to Victoria. This is important
for Victoria to manage and regulate its share of water within the
River Murray, the bed and banks of which are within New South
3
Wales. Authorisations under the Principal Act to take water
from the River Murray and arrangements to manage the salinity
impacts on the Murray-Darling Basin of water used on land in
Victoria are jointly managed or regulated under the Murray-
Darling Basin Plan, the Murray-Darling Basin Agreement and the
Water Act 2007 (Cth). New section 6AA is also relevant to the
Minister's programs of assessment of water resources of the
State, which includes Victoria's share of water in the River
Murray.
Clause 9 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 9 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;
• 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
4
• 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 10 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 includes at least one Aboriginal person who also has
the required knowledge or experience.
Clause 11 amends section 22E(b) of the Principal 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.
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 12 inserts new section 22G(3) and (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 13 substitutes section 22I(1) of the Principal Act and inserts new
section 22I(2A) and (5) into the Principal Act. Section 22I(1)
requires the Minister to review a sustainable water strategy at
5
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 a long-term water resources
assessment (see clause 18). 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 14 substitutes section 22K of the Principal Act and inserts new
section 22KA.
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. New section 22K of the
Principal Act will 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. It requires the Minister to commence
a long-term water resource assessment for water resources in
northern Victoria by 31 January 2025. The matters identified in
the assessment can then inform the review of the Basin Plan.
The existing requirement to then commence a new assessment
after 12 years is retained.
For the rest of the State, the requirements relating to the timing
of long-term water resources assessments do not change but are
now no longer tied to the commencement of section 14 of the
Water (Water Resource Management) Act 2005.
New section 22KA(1) provides that a long-term water resource
assessment, that was commenced but not completed before the
commencement of section 14 of the Water and Catchment
Legislation Amendment Act 2019, is saved and taken to be a
long-term water resource assessment commenced under the
Principal Act as amended by the Water and Catchment
Legislation Amendment Act 2019.
6
New section 22KA(2) provides that any part of a long-term water
resources assessment that was commenced but not completed on
or before the commencement of section 14 of the Water and
Catchment Legislation Amendment Act 2019 that relates to
northern water resources is omitted from that assessment.
This will allow for the cessation of that part and for a new
long-term water resources assessment for the northern water
resources to commence in accordance with new section
22K(1)(a)(i).
Clause 15 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 15 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 16 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 16 extends the 12 months
period to 18 months. Assessments are complex undertakings
and 18 months is a more realistic timeframe.
Clause 17 amends section 22P of the Principal Act and inserts new
subsections (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 17 amends
section 22P to extend the matters to be taken into account
7
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 17 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 18 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 19 amends section 22Q(2) of the Principal Act which 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 19 provides that the Minister
must make sure that, so far 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 20 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. Clause 20 also repeals section 22R(2) and (3) of the
Principal Act which made provision for the timing of reviews
under section 22P and ensured the validity of reviews and actions
following reviews if subsection (2) was not complied with.
These matters are now dealt with under new section 22PA
(inserted by clause 18).
8
Clause 21 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 21 provides that if there are 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 22 inserts new section 31(1)(ab) and 31(1AA) in 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 23 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 24 inserts new section 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 24 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.
9
Clause 25 substitutes section 33E of the Principal Act for new sections 33E,
33EA and 33EB. Section 33E currently provides it is an offence
if a person takes water from a certain source of water in a
declared water system unless the person holds an authorisation
to take water under a water share.
New section 33E provides for 3 variations of the offence of
taking water from a relevant water source in a declared water
system without being authorised to do so: doing this knowingly
or recklessly or where neither of these fault elements are part of
the offence. New section 33E(1) provides for an offence if a
person knowingly takes water from a relevant water source in a
declared water system without being authorised to do so under a
water share. The taking of water must have resulted in land,
works or water being seriously damaged or another person
suffering substantial economic loss. The maximum penalty for
an individual is 10 years imprisonment or 1200 penalty units, or
both. The maximum penalty for a body corporate is 6000 penalty
units.
New section 33E(2) provides for an offence if a person
recklessly takes water from a relevant water source in a declared
water system without being authorised to do so under a water
share. The taking of water must have resulted in land, works
or water being seriously damaged or another person suffering
substantial economic loss. The maximum penalty for an
individual is 5 years imprisonment or 600 penalty units, or both.
The maximum penalty for a body corporate is 3000 penalty units.
New section 33E(3) provides for an offence if a person takes
water from a relevant water source in a declared water system
without being authorised to do so under a water share.
The maximum penalties are 240 penalty units for an individual
and 1200 penalty units for a body corporate.
New section 33E(4)(a) and (c) provide that a person does not
commit an offence under section 33E(1), (2) and (3) if the
person takes water for domestic and stock use in the following
circumstances: from a spring or soak or from a dam, where the
water in the dam has been collected from a roof, is from a spring
or soak or has been taken from a waterway or aquifer under an
authorisation under the Principal Act or any other Act.
10
New section 33E(4)(b) and (d) provide that a person does not
commit an offence under section 33E(1), (2) and (3) if the water
is taken for a purpose other than domestic and stock use in the
following circumstances: from a dam, where the water in the
dam has been taken from another relevant water source under
an authorisation under the Principal Act or any other Act or the
water is taken under any other authorisation or has been collected
from a roof.
For the purposes of sections 33E(1), (2) and (3), new
section 33E(5) provides a definition of relevant water source
to mean any of the following: a waterway (including the River
Murray), an aquifer, a spring or soak and a dam (to the extent
that the water in the dam is not rainwater supplied to the dam
from the roof of a building or water supplied to the dam from a
waterway or bore).
New section 33EA(1), (2) and (3) provide evidentiary
presumptions about who took water without being authorised to
do so, in contravention of sections 33E(1), (2) or (3).
New section 33EA(1) provides that evidence that water has
been taken to, diverted to or used on land occupied by a
person is evidence that the person took the water and, in the
absence of evidence to the contrary, is proof of that fact.
New section 33EA(2) provides that, to avoid doubt,
section 33EA(1) applies to an occupier who is also the
owner of the land.
New section 33EA(3) provides that if a person has been found
guilty of an offence under section 288(1), (2) or (3) in relation to
a meter of an Authority that measures the amount of water that
is taken to, delivered to or used on land, the finding of guilt is
evidence that the person took water and, in the absence of
evidence to the contrary, is proof of that fact. It also provides
that such a finding of guilt is also evidence that the person was
not authorised to take that water and, in the absence of evidence
to the contrary, is proof of that fact.
New section 33EB(1) and (2) enable an authorised water
officer to serve an infringement notice on a person who the
officer has reason to believe has contravened section 33E(3)
in 2 circumstances. The first circumstance, under new
section 33EB(1), is if the person was not authorised to take
water under a water share and the person took an amount of
11
water that was equal to, or less than, 10 megalitres. The second
circumstance, under new section 33EB(2), is if the person was
authorised to take water under a water share (the authorised
amount) and the additional amount of water taken was an amount
equal to, or less than, 20% of the authorised amount and equal to,
or less than, 10 megalitres.
Clause 26 inserts new section 55A in the Principal Act. New section 55A
provides for an offence if a holder of a take and use licence under
section 51(1) fails to comply with any conditions of the licence.
The maximum penalties are 120 penalty units for an individual
and 600 penalty units for a body corporate.
Clause 27 inserts new section 58(7), (8), and (9) into the Principal Act.
New section 58(7) provides that a person whose take and use
licence issued under section 51(1) is suspended may apply for
renewal of the licence while that licence is suspended and before
the expiry of the licence. New section 58(8) provides that a
licence that is renewed under new section 58(7) remains
suspended under the terms of the suspension until the licence is
cancelled or the period of suspension ends or the suspension is
lifted. New section 58(9) confirms that if a suspended licence
expires, and a licence holder does not apply for renewal of the
licence before its expiry, the licence expires.
Clause 28 substitutes section 60 in the Principal Act with new sections 60
and 60A. Section 60 currently enables the Minister to revoke a
licence to take and use water issued under section 51(1) or a
registration licence (a licence issued under section 51(1A), 51AA
or 51AB).
New section 60 provides that the Minister may suspend or
cancel either type of licence issued under section 51(1)
or 51(1A). New section 60(1) provides that the Minister may
suspend or cancel a licence if the Minister reasonably believes
that: there has been a failure to comply with the Principal Act or
the regulations made under that Act, there has been a failure to
comply with any conditions to which the licence is subject, the
licence holder has not paid an applicable fee or charge or, in the
case of a licence relating to works the works are being operated
contrary to provisions of this Act. The Minister may also
suspend or cancel either type of licence in any circumstances
prescribed in regulations. In any of these scenarios, the Minister
must also follow the process specified in new section 60A.
12
New section 60(2) provides that the Minister must give the
licence holder notice of a decision to suspend or cancel the
licence. New section 60(3) provides that a notice of suspension
must set out the period of a suspension and any actions the
licence holder must take in order for the suspension to be lifted.
New section 60(4) provides that a suspension remains in force
until the end of the suspension period, if no actions have been
specified or, if the Minister is satisfied that the licence holder has
taken the actions specified under new section 60(3)(b), the date
specified by the Minister by notice as the date on which the
suspension is no longer in force. This date must not be later
than 2 days after the date of the notice.
New section 60A sets out the process before the Minister may
suspend or cancel a licence issued under section 51(1) or a
registration licence. Section 60A(1)(a) provides that, before
suspending or cancelling a licence, the Minister must notify the
licence holder of the grounds on which the Minister proposes to
suspend or cancel the licence, the rights the licence holder has
to make submissions on the proposal, and, in the case of a
suspension, any actions the licence holder would need to take to
have the proposed suspension lifted. New section 60A(1)(b)
provides that a licence holder must be allowed an opportunity to
make a written submission on the proposal, which must be not
less than 35 days after the Minister gives the notice.
New section 60A(2) requires the Minister to have regard to any
submissions made by a licence holder when making a decision
and provides that the Minister must not make a decision until the
period for making a submission has elapsed.
Clause 29 substitutes section 62(1) of the Principal Act for new
section 62(1), (1A), and (1B). Section 62(1) currently provides
for transfers of a licence to take and use water issued under
section 51(1). New section 62(1) provides that a licence issued
under section 51(1) may be transferred in accordance with
section 62, subject to any conditions set out in the licence
relating to transferring the licence including any condition
prohibiting the transfer of the licence. New section 62(1A)
provides that if a licence that is suspended is transferred, the
licence remains suspended until the suspension ends or is lifted.
New section 62(1B) provides that the Minister may lift a
suspension of a licence that is transferred if the actions specified
13
in the notice of suspension are not able to be completed, or are no
longer relevant, after the transfer of the licence.
Clause 30 substitutes existing section 63 of the Principal Act for new
sections 63, 63A, and 63B. Section 63 currently provides it is
an offence if a person takes water from certain types of water
sources in a non-declared water system without being authorised
by or under the Principal Act or any other Act. New section 63
provides for 3 variations of the offence of taking water from a
relevant water source in a non-declared system without being
authorised to do so: doing this knowingly or recklessly or where
neither of these fault elements are part of the offence.
New section 63(1) provides for an offence if a person
knowingly takes or uses water from a relevant water source in a
non-declared water system without being authorised to do so by
or under the Principal Act or any other Act. The taking of water
must have resulted in land, works or water being seriously
damaged or another person suffering substantial economic loss.
The maximum penalty for an individual is 10 years imprisonment
or 1200 penalty units, or both. The maximum penalty for a body
corporate is 6000 penalty units. The maximum penalty of
10 years imprisonment is the same maximum penalty that applies
to enforcement of current section 63(1) under section 295 of the
Principal Act, which is repealed by clause 93.
New section 63(2) provides for an offence if a person
recklessly takes or uses water from a relevant water source in a
non-declared water system without being authorised to do so by
or under the Principal Act or any other Act. The taking of water
must have resulted in land, works or water being seriously
damaged or another person suffering substantial economic loss.
The maximum penalty for an individual is 5 years imprisonment
or 600 penalty units, or both. The maximum penalty for a body
corporate is 3000 penalty units.
New section 63(3) provides for an offence if a person takes
or uses water from a relevant water source in a non-declared
water system without being authorised to do so by or under the
Principal Act or any other Act. The maximum penalties are
240 penalty units for an individual and 1200 penalty units for a
body corporate.
14
New section 63(4)(a) and (c) provide that a person does not
commit an offence under section 63(1), (2) and (3) if the person
takes or uses water for domestic and stock use in the following
circumstances: from a spring or soak or from a dam, where the
water in the dam has been taken from another relevant water
source under an authorisation under the Principal Act or any
other Act or has been collected from a roof.
New section 63(4)(b) provides that a person does not commit an
offence under section 63(1), (2) and (3) if the person takes or
uses water for a purpose other than domestic and stock use in the
following circumstances: from a dam, where the water in the dam
has been taken from another relevant water source under an
authorisation under the Principal Act or any other Act or has
been collected from a roof.
For the purposes of the offences under new section 63(1), (2)
and (3), new section 63(5) provides a definition of relevant water
source to mean any of the following: a waterway (including the
River Murray and any collection of water which is from time to
time replenished in whole or in part by water coming from a
natural sub-surface path from a waterway), an aquifer, a spring
or soak and a dam (to the extent that the water is not rainwater
supplied to the dam from the roof of a building or water supplied
to the dam from a waterway or bore).
New section 63A(1), (2), (3) and (4) provide evidentiary
presumptions about who took water without authorisation under
section 63(1), (2) and (3). New section 63A(1) provides that
evidence that water has been taken to land, diverted to land or
used on land that is specified in a relevant authorisation held by
that person as land on which that water may be used, is evidence
that the person took or used the water and, in the absence of
evidence to the contrary, is proof of that fact.
New section 63A(2) provides that where section 63A(1) does not
apply, evidence that water has been taken to land, diverted to
land or used on land occupied by the person is evidence that the
person took or used that water and, in the absence of evidence to
the contrary, is proof of that fact.
New section 63A(3) provides that, to avoid doubt, section 63A(2)
applies to an occupier who is also the owner of the land.
15
New section 63A(4) provides that if a person has been found
guilty of an offence under section 288(1), (2) or (3) in relation
to a meter of an Authority that measures the amount of water
that is taken to, diverted to or used on land, the finding of guilt is
evidence that the person took or used water and, in the absence of
evidence to the contrary, is proof of that fact. It also provides
that such a finding of guilt is also evidence that the person was
not authorised to take or use that water and, in the absence of
evidence to the contrary, is proof of that fact.
New section 63A(5) provides a definition of a relevant
authorisation, for the purposes of new section 63A(1), to mean a
bulk entitlement, a licence to take and use water issued under
section 51 and a works licence issued under section 67.
New section 63B(1) enables an authorised water officer to serve
an infringement notice on a person who the officer has reason to
believe has contravened section 63(3) in 2 circumstances.
The first circumstance, under new section 63B(1), is if the person
was not authorised to take or use water under an authorisation
under the Principal Act or any other Act and the person took an
amount of water that was equal to, or less than, 10 megalitres.
The second circumstance, under new section 63B(2), is if the
person was authorised to take or use a specified amount of water
under an authorisation under the Principal Act or any other Act
(the authorised amount) and the additional amount of water taken
was an amount equal to, or less than, 20% of the authorised
amount and equal to, or less than, 10 megalitres.
Clause 31 amends section 64(1)(h) of the Principal Act, as a consequence of
new section 74AB enabling the Minister to suspend or cancel a
works licence. Section 64 provides for a person to apply to the
Victorian Civil and Administrative Tribunal (Tribunal) for a
review of certain decisions by the Minister under the Principal
Act. New section 64(1)(h) is amended by substituting "revoke"
with "cancel or suspend" so that the existing right of a person
to apply for a review of a decision by the Minister under
section 60(1) of the Principal Act to revoke a licence issued
under section 51(1) or a registration licence will apply to a
decision by the Minister under new section 60(1) to suspend or
cancel a licence.
16
Clause 32 inserts new section 70A in the Principal Act. New section 70A
provides for an offence if the holder of a works licence, under
section 67, fails to comply with any conditions to which the
licence is subject under section 71(1). The maximum penalties
are 120 penalty units for an individual and 600 penalty units for a
body corporate.
Clause 33 amends section 72 of the Principal Act by inserting new
section 72(7), (8), and (9). This amendment is being made
because of new section 74AB, which will provide for the
Minister to suspend a works licence.
New section 72(7) provides that a person may apply for renewal
of a licence during the period of a suspension, and before the
expiry of the licence. New section 72(8) provides that a licence
that is renewed under section 72(7) remains suspended, in
accordance with the terms of the suspension, until the licence is
cancelled or the suspension ends or is lifted. New section 72(9)
provides that if a holder of a licence issued under section 67, that
is suspended, does not apply for renewal of the licence before the
expiry of the licence, the licence expires.
Clause 34 amends section 74 of the Principal Act by substituting
section 74(1) for new section 74(1), (1A), and (1B).
New section 74(1) provides for transfers of a works licence
under section 67. New section 74(1) provides that a licence
issued under section 67 may be transferred in accordance with
section 74, subject to any conditions set out in the licence relating
to transferring the licence including any condition prohibiting the
transfer of the licence. New section 74(1A) provides that if a
licence that is suspended is transferred, the licence remains
suspended until the suspension ends or is lifted. New section
74(1B) provides that the Minister may lift a suspension of a
licence that is transferred if the actions specified in the notice
of suspension are not able to be completed, or are no longer
relevant, after the transfer of the licence.
Clause 35 New section 74AB(1) provides that the Minister may suspend or
cancel a works licence if the Minister reasonably believes there
has been a failure to comply with the Principal Act or regulations
made under the Principal Act, there has been a failure to comply
with any conditions in the licence or the licence holder has not
paid an applicable fee or charge. The Minister may also suspend
or cancel a works licence in any circumstances prescribed in
17
regulations. In any of these scenarios, the Minister must also
follow the process specified in new section 74AC.
New section 74AB(2) provides that the Minister must give the
licence holder notice of a decision to suspend or cancel the
licence. New section 74AB(3) provides that a notice of
suspension must set out the period of a suspension and any
actions the licence holder must take in order for the suspension
to be lifted. New section 74AB(4) further provides that a
suspension remains in force until the end of the suspension
period, if no actions have been specified or, if the Minister is
satisfied that the licence holder has taken the actions specified
under new section 74AB(3)(b), the date specified by the Minister
by notice.
New section 74AC sets out the process before the Minister
may suspend or cancel a works licence. Section 74AC(1)(a)
provides that, before suspending or cancelling a licence the
Minister must notify the licence holder of the grounds on which
the Minister proposes to suspend or cancel the licence, the rights
the licence holder has to make submissions on the proposal, and,
in the case of a proposed suspension, any actions the licence
holder would need to take to have the suspension lifted.
New section 74AC(1)(b) provides that a licence holder must
be given an opportunity to make a written submission on the
proposal, which must be not less than 35 days of the Minister
giving the notice.
New section 74AC(2) requires the Minister to have regard to any
submissions made by a licence holder when making a decision
and provides that the Minister must not make a decision until the
period for making a submission has elapsed.
Clause 36 repeals section 75(1), (1A), (2), (3) and (5) of the Principal Act
and amends section 74(4).
Clause 36(1) repeals offences contained in section 75(1), (1A)
and (3) relating to unauthorised interference with a waterway or
bore and unauthorised works on a waterway, bores and certain
dams and section 74(5) which provides the circumstances which
the repealed offences do not apply. These provisions are
replaced by new section 75A inserted by clause 37.
Current section 75(4) provides that it is an offence if a person
operates any licensed works subject to a future maintenance or
operation condition without complying with that condition.
18
Clause 36(2) amends section 75(4) by inserting a penalty of
120 penalty units for an individual and 600 penalty units for a
body corporate. This is necessary as the penalty for section 75(4)
is currently contained in section 84 (in Division 6 of Part 5) of
the Principal Act and clause 48 repeals Division 6 of Part 5.
Clause 37 inserts new section 75A in the Principal Act to provide for
various offences relating to a regulated activity, which is defined
in new section 75A(5) and includes interference with a waterway
or bore and construction of works on a waterway, a bore and
certain dams, and the circumstances when these offences do not
apply. New section 75A provides for 3 variations of the offence
of carrying out any regulated activity without being authorised to
do so by or under the Principal Act or any other Act and doing
this knowingly or recklessly or where neither of these fault
elements are part of the offence.
New section 75A(1) provides for an offence if a person
knowingly carries out any regulated activity without being
authorised to do so. The regulated activity must have resulted in
land, works or water being seriously damaged or another person
suffering substantial economic loss. The maximum penalty for
an individual is 10 years imprisonment or 1200 penalty units, or
both. The maximum penalty for a body corporate is 6000 penalty
units. The maximum penalty of 10 years imprisonment is the
same maximum penalty that applies to enforcement of any of the
offences under existing section 75 under section 295 of the
Principal Act, which is repealed by clause 93.
New section 75A(2) provides for an offence if a person
recklessly carries out any regulated activity without being
authorised to do so. The regulated activity must have resulted in
land, works or water being seriously damaged or another person
suffering substantial economic loss. The maximum penalty for
an individual is 5 years imprisonment or 600 penalty units, or
both. The maximum penalty for a body corporate is 3000 penalty
units.
New section 75A(3) provides for an offence if a person
carries out a regulated activity without being authorised to do so.
The maximum penalty for an individual is 240 penalty units.
The maximum penalty for a body corporate is 1200 penalty units.
19
New section 75A(4) provides that a person does not commit an
offence under new section 75A(1), (2), and (3) if the person
performs certain work on a bore that is necessary to prevent
waste, misuse, or pollution of groundwater, or is necessary to
obtain water for domestic or stock use and provides notice to the
Minister of that work.
New section 75A(5) provides a definition of regulated activity to
mean any of the following--
(a) the obstruction or interference with a waterway;
(b) the construction, alteration, operation, removal or
decommissioning of any works on a waterway;
(c) the obstruction or interference with any works on a
waterway;
(d) the erosion or damaging of the surrounds of a waterway;
(e) the construction, alteration, operation, removal or
decommissioning of a private dam within the meaning
of section 67(1A);
(f) the construction, deepening, enlarging or alteration of a
bore;
(g) the interfering with, damaging or destroying of a bore or
ancillary works.
Clause 38 amends section 76 of the Principal Act.
Clause 38(1) repeals section 76(6) which provides for an offence
of disposing of any matter underground by means of a bore.
This offence is now replaced with the offences under new
section 76A (see clause 39).
Clause 38(2) amends section 76(7) by substituting
"This Division" for "This section". This amendment enables
section 76, under which a person may apply for a works licence,
to apply to all authorisations required under Division 3 of Part 5
of the Principal Act.
Clause 38(3) inserts 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
20
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 39 inserts new section 76A in the Principal Act to provide for
various offences relating to disposal of matter underground.
New section 76A provides for 3 variations of the offence:
committing the offence knowingly or recklessly or where
neither of these fault elements are part of the offence.
New section 76A(1) provides for an offence if a person
knowingly disposes of any matter underground by means of a
bore without being authorised to do so. The disposal of matter
underground must have resulted in land, works or water being
seriously damaged or another person suffering substantial
economic loss. The maximum penalty for an individual is
10 years imprisonment or 1200 penalty units, or both.
The maximum penalty for a body corporate is 6000 penalty units.
The maximum penalty of 10 years imprisonment is the same
maximum penalty that currently applies to enforcement of any
of the offences under existing section 76(6) under section 295 of
the Principal Act, which is repealed by clause 93.
New section 76A(2) provides for an offence if a person
recklessly disposes of any matter underground by means of a
bore without being authorised to do so. The disposal of matter
underground must have resulted in land, works or water being
seriously damaged or another person suffering substantial
economic loss. The maximum penalty for an individual is
5 years imprisonment or 600 penalty units, or both.
The maximum penalty for a body corporate is 3000 penalty
units.
New section 76A(3) provides for an offence if a person disposes
of any matter underground by means of a bore without being
authorised to do. The maximum penalty for an individual is
240 penalty units. The maximum penalty for a body corporate is
1200 penalty units.
Clause 40 repeals section 78 of the Principal Act, which provides for an
offence if an occupier of works or of a bore fails to comply
with any direction given under section 78(1) or (3). The repeal
is necessary as these offences are now provided for in new
section 78A (see clause 41).
21
Clause 41 inserts new section 78A which provides for an offence if an
occupier of works or of a bore does not comply with any
direction given under section 78(1) or (3). The maximum penalty
for an individual is 120 penalty units. The maximum penalty for
a body corporate is 600 penalty units.
Clause 42 repeals section 79(3) of the Principal Act, which provides for
an offence if an occupier of a bore does not comply with any
direction given under section 79(2). The repeal is necessary
as this offence is now provided for in new section 79A
(see clause 43).
Clause 43 inserts new section 79A to provide for an offence if an occupier
of works or of a bore does not comply with any direction given
under section 79(2). The maximum penalty for an individual is
120 penalty units. The maximum penalty for a body corporate is
600 penalty units.
Clause 44 substitutes existing section 80(1), (2) and (3) for new
section 80(1), (2) and (3) of the Principal Act. The existing
sections provide for the Minister and the Governor in Council
to direct the owner of any private dam or public dam,
respectively, or any proposed private dam or proposed public
dam, respectively, to carry out work or actions in relation to the
dam.
New section 80(1) provides that the Minister may direct an
owner of any public or private dam to make specified repairs or
alterations to the dam, take specified measures to keep the dam
under surveillance or remove the dam. The Minister may give a
direction if the Minister decides that the dam is or is likely to be
hazardous to public safety, property, or the environment because
of its location or the nature of its construction.
New section 80(2) provides that the Minister may direct a
proposed owner of any proposed public or private dam to resite
the dam, build the dam to specified standards or refrain from
building the dam. The Minister may give the direction if the
Minister decides that the dam is or is likely to be hazardous to
public safety, property, or the environment because of its
proposed location or the nature of its proposed construction.
New section 80(3) provides that the section applies to any public
or private dam, whether or not the dam is located on a waterway.
22
Clause 45 inserts new section 80AA to provide for an offence if a person
fails to comply with any direction given under substituted
section 80. The maximum penalty for an individual is
120 penalty units. The maximum penalty for a body corporate
is 600 penalty units.
Clause 46 amends the heading of section 81 of the Principal Act to Power
of the Minister to carry out work. It also substitutes existing
section 81(1) with new section 81(1) and (1A). Existing
section 81(1) provides for the Minister to be able to carry out
work on works that are the subject of a directions notice given by
the Minister under sections 78, 79 or 80 and recover the cost of
carrying out the work.
New section 81(1) provides that the Minister may carry out work,
or take any other measures the Minister thinks fit, on any of the
works listed in new section 81(1A) (relevant works) and recover
the reasonable costs from the occupier. The Minister may carry
out this work and take other measures if the Minister considers
that a person has failed to comply with a direction within the
specified time, or the work and other measures are necessary to
be carried out urgently to prevent waste or pollution of water,
or to protect public safety, property, or the environment.
The Minister may carry out work and take other measures if the
Minister considers that it is necessary to secure compliance with
the Principal Act, or conditions of any licence issued under the
Principal Act.
New section 81(1A) sets out the meaning of relevant works for
section 81(1), which are: a dam, works on a waterway, or a bore.
Clause 47 amends section 83 of the Principal Act. Clause 47(a) inserts
new section 83(1)(ja) to provide that a decision of the Minister,
to suspend or cancel a licence under new section 74AC, is a
decision in relation to which a person whose interests are affected
by the decision may apply to the Tribunal for a review of the
decision. Clause 47(b) amends section 83(1)(o) by substituting
"section 80(1)" for "section 80(1) or 80(2)" reflecting the content
of these substituted provisions (see clause 43) .
Clause 48 repeals Division 6 of Part 5 of the Principal Act.
Clause 49 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
23
other Act. Clause 49 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 50 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 50 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 51 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.
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.
24
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 the public interest.
New section 122L provides that on the commencement of the
section 5(1) (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 Part 6 of the Principal Act.
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 52 amends section 122ZA(1)(b) of the Principal Act to replace
the reference to "water districts" with "water supply districts"
because such districts are redefined by clause 5.
Clause 53 repeals section 122ZF of the Principal Act which is a
redundant regulation making power relating to environmental
and recreational areas. See clause 98 for the new regulation
making powers.
25
Clause 54 amends section 122ZG(4) of the Principal Act to replace the
reference to "water districts" with a reference to "water supply
districts" because such districts are redefined by clause 5.
Clause 55 amends section 142 of the Principal Act. Section 142(1),
142(1A), and 142(1B) currently provide for meters to be installed
on land. Section 142(2) currently provides for an Authority to
compute the amount of water that is delivered to land if a meter
is not functioning accurately. Section 142(3) currently provides
that a meter provided or installed by an Authority remains the
property of the Authority.
Clause 55(1) substitutes existing sections 142(1), (1A), and (1B)
with new section 142(1), (1A), (1B) and (1C).
New section 142(1) provides that an Authority may provide or
install and maintain, a meter on any land to measure the amount
of water supplied or delivered to land and the amount of water
taken or used.
New section 142(1A) provides that an Authority may install a
water meter under subsection (1) in any position it considers
appropriate.
New section 142(1B) provides that an Authority may provide or
install, and maintain, separate water meters for each occupancy
on any land and, if water is supplied or delivered to land for more
than one type of service, to measure the amount of water supplied
for each service.
New section 142(1C) sets out considerations that an Authority
must have regard to for determining what constitutes a separate
occupancy. They are: any classes of land (or part of land),
and any considerations for determining what constitutes an
occupancy, that are prescribed in regulations made under the
Principal Act. If there are not any regulations, an Authority must
have regard to the principles set out in the Valuation of Land
Act 1960.
Clause 55(2) repeals section 142(2). This is a consequence of
clause 56 inserting new section 142A which will replace the
matters provided under existing section 142(2).
26
Clause 56 inserts new section 142A into the Principal Act. The new section
provides for a water corporation to estimate the amount of water
supplied or delivered to land. Section 142A(1) sets out the
circumstances in which an estimation can be made. They are--
(a) the water corporation is of the opinion that a meter
belonging to it or under its control or management is not
functioning accurately or has been interfered with;
(b) the water corporation supplies or delivers water to any
land and there is no meter on that land to measure the
amount of water supplied or delivered to land;
(c) water is taken or used on any land under an
authorisation to take or to use water and there is no
meter to measure the amount of water taken or used on
the land under the authorisation;
(d) water is taken to or used on any land without an
authorisation to take water.
New section 142A(2) provides for how a water corporation may
estimate amounts of water under new subsection (1), during a
specified period. This can be done by having regard to the
amount of water delivered to the land in previous or subsequent
periods, or having regard to the amount of water delivered to
similar land during the specified period. A water corporation
may also estimate amounts of water under new subsection (1) in
any way that is prescribed in regulations.
Clause 57 amends section 144 of the Principal Act to make a number of
improvements and consequential amendments. The amendments
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 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.
Section 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
27
be required under amended section 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.
Section 144(4) of the Principal Act is amended to replace
reference to "water districts" with "water supply districts"
because such districts are redefined by clause 5 and to require the
notice required under subsection (3) to generally identify the land
to which the services will be available.
Clause 58 inserts new section 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 (see clause 51) 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 59 amends section 145 of the Principal Act. This is a consequence
of clause 60 inserting new section 145A which will replace the
matters provided under existing section 145(1). Clause 58(1)
substitutes section 145(1). New section 145(1) provides that an
Authority may consent to the connection of any works to the
works of an Authority, the alteration or removal of works that
are connected to the works of an Authority, or the discharge of
anything into the works of an Authority. Clause 59(2) repeals
section 145(3AB).
Clause 59(3) substitutes section 145(4) of the Principal Act.
New section 145(4) provides that it is an offence if a person
does an activity referred to in sections 145A(3) or 145A(6) in
contravention with any terms and conditions provided for in an
Authority's consent. The penalty for an individual is 60 penalty
units. The penalty for a body corporate is 300 penalty units.
Clause 60 inserts new section 145A into the Principal Act to provide for
various offences relating to connections to works of an Authority
and discharges without the consent of the relevant Authority.
New section 145A(1), (2) and (3) provide for 3 variations of the
offences relating to connections to works: committing the offence
knowingly or recklessly or where neither of these fault elements
28
are part of the offence. New section 145A(4), (5) and (6) provide
for 3 variations of the offences relating to discharges: committing
the offence knowingly or recklessly or where neither of these
fault elements are part of the offence.
New section 145A(1) provides for an offence if a person
knowingly causes or permits the connection of any works to the
works of an Authority or the alteration or removal of any works
that are connected to the works of an Authority without the
consent of the Authority under section 145 of the Principal Act.
The connection of any works or the alteration or removal of any
works must have resulted in land, works or water being seriously
damaged or another person suffering substantial economic loss.
The maximum penalty for an individual is 10 years imprisonment
or 1200 penalty units, or both. The maximum penalty for a body
corporate is 6000 penalty units. The maximum penalty of
10 years imprisonment is the same maximum penalty that
currently applies to enforcement of the offence under existing
section 145(1) under section 295 of the Principal Act, which is
repealed by clause 93.
New section 145A(2) provides for an offence if a person
recklessly causes or permits the connection of any works to the
works of an Authority or the alteration or removal of any works
that are connected to the works of an Authority without the
consent of the Authority under section 145 of the Principal Act.
The connection of any works or the alteration or removal of any
works must have resulted in land, works or water being seriously
damaged or another person suffering substantial economic loss.
The maximum penalty for an individual is 5 years imprisonment
or 600 penalty units, or both. The maximum penalty for a body
corporate is 3000 penalty units.
New section 145A(3) provides for an offence if a person
causes or permits the connection of any works to the works of
an Authority or the alteration or removal of any works that are
connected to the works of an Authority without the consent of the
Authority under section 145 of the Principal Act. The maximum
penalty for an individual is 120 penalty units. The maximum
penalty for a body corporate is 600 penalty units.
New section 145A(4) provides for an offence if a person
knowingly causes or permits anything to be discharged into the
works of an Authority without the consent of the Authority under
section 145 of the Principal Act. The connection of any works or
29
the alteration or removal of any works must have resulted in
land, works or water being seriously damaged or another person
suffering substantial economic loss. The maximum penalty for
an individual is 10 years imprisonment or 1200 penalty units, or
both. The maximum penalty for a body corporate is 6000 penalty
units. The maximum penalty of 10 years imprisonment is the
same maximum penalty that currently applies to enforcement of
the offence under existing section 145(1) under section 295 of the
Principal Act, which is repealed by clause 93.
New section 145A(5) provides for an offence if a person
recklessly causes or permits anything to be discharged into the
works of an Authority without the consent of the Authority under
section 145 of the Principal Act. The connection of any works
or the alteration or removal of any works must have resulted in
land, works or water being seriously damaged or another person
suffering substantial economic loss. The maximum penalty for
an individual is 5 years imprisonment or 600 penalty units, or
both. The maximum penalty for a body corporate is 3000 penalty
units.
New section 145A(6) provides for an offence if a person
causes or permits anything to be discharged into the works of an
Authority without the consent of the Authority under section 145
of the Principal Act. The maximum penalty for an individual is
120 penalty units. The maximum penalty for a body corporate is
600 penalty units.
Clause 61 repeals section 150(1A) of the Principal Act, which provides
that an Authority may not require an owner of land to do any
repair or maintenance work that a plumbing inspector could,
under Part 12A of the Building Act 1993, require a plumber
to do under a rectification notice or the owner to do under a
plumbing notice or order. The repeal of section 150(1A)
removes a restriction on the power of an Authority under
section 150(1) to require an owner of land to repair, or carry out
maintenance on, any works on that land or that connect the land
to the works of the Authority or that are necessary for any service
provided to the land by the Authority.
Clause 62 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
30
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 63 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 98 for the new regulation making
powers.
Clause 64 substitutes in section 161D of the Principal Act the reference to
"water districts" with "water supply districts" because such
districts are redefined by clause 5.
Clause 65 substitutes in the heading of Division 1 of Part 8 of the Principal
Act the reference to "water districts" with "water supply districts"
because such districts are redefined by clause 5.
Clause 66 substitutes in section 162 of the Principal Act the reference to
"water districts" with "water supply districts" because such
districts are redefined by clause 5.
Clause 67 substitutes in section 163(1) of the Principal Act the reference
to "water districts" with "water supply districts" because such
districts are redefined by clause 5.
Clause 68 inserts a new heading for section 164 and substitutes a new
section 164(2) of the Principal Act.
Clause 68(1) inserts a new heading to reflect the amendments
made by clause 68(2).
Clause 68(2) substitutes a new section 164(2) 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
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 69 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" because such districts are redefined by
clause 5.
31
Clause 70 repeals section 169(3) of the Principal Act. This is a
consequence of clause 71 inserting new section 169A, which
will replace section 169(3).
Clause 71 inserts new sections 169A and 169B in the Principal Act.
New section 169A(1) provides that a person must not knowingly
fail to comply with a notice of contravention served under
section 169. The maximum penalty for an individual is 10 years
imprisonment or 1200 penalty units or both. The maximum
penalty for a body corporate is 6000 penalty units.
New section 169A(2) provides that a person must not
recklessly fail to comply with a notice of contravention issued
under section 169 that results land, works or water being
seriously damaged or another person suffering substantial
economic loss. The maximum penalty for an individual is
5 years imprisonment or 600 penalty unites or both.
The maximum penalty for a body corporate is 3000 penalty
units.
New section 169A(3) provides that a person must not fail to
comply with a contravention notice issued under section 169.
The penalty for an individual is 240 penalty units and the
maximum penalty for a body corporate is 1200 penalty units.
New section 169B provides that an Authority may carry
out work, or take any necessary action, when a notice of
contravention is not complied with within a time that has been
specified. The Authority may carry out any work or action that is
necessary to remedy a contravention, remove or disconnect any
service to the property which is related to the contravention, or
apply to a court for an injunction restraining a person, on whom a
notice was served, from contravening the notice. For work and
activities to remedy contraventions, or disconnections of services,
the Authority can recover its reasonable costs from the person on
whom the notice was served.
Clause 72 repeals sections 171(1)(bc), 171(1)(c) and 171(1)(d).
These sections provide for an Authority to make by-laws for
determining or measuring amounts of water supplied, or for
prescribing classes of persons for serving infringement notices.
These sections are no longer needed because clause 98 will
amend sections 324(1) of the Principal Act to enable regulations
to be made for these matters.
32
Clause 73 substitutes in section 171B(a)(iv) of the Principal Act the
reference to "water districts" with "water supply districts"
because such districts are redefined by clause 5.
Clause 74 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 75 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 76 substitutes section 189(1)(a) and (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.
New section 189(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.
In performing its functions under the Principal Act, new
section 189(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.
33
Clause 77 amends section 190(3) and inserts new section 190(4) in the
Principal Act.
Clause 77(1) amends section 190(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.
Clause 77(2) substitutes section 190(4) to impose new procedural
requirements relating to the making of a regional waterway
strategy.
Clause 78 inserts new section 193(2)(d), and (2)(e) and (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 78 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.
Clause 79 amends section 194 of the Principal Act.
Clause 79(1) substitutes new section 194(1), (1A), (1B) and (1C)
for existing section 194(1) of the Principal Act. Section 194(1)
of the Principal Act provides for an offence if a person causes or
34
permits works to be undertaken which interfere, or are likely to
interfere, with designated land or works, or with the quality,
quantity or flow of water in designated land or works within an
Authority's waterway management district. This offence does
not apply to the holder of a declared bulk entitlement or a public
statutory authority. New section 194 provides for an offence of
causing or permitting a regulated action, which is defined in new
section 194(4). New section 194(1), (1A) and (1B) provide for
3 variations of the offence: committing the offence knowingly or
recklessly or where neither of these fault elements are part of the
offence.
New section 194(1) provides for an offence if a person
knowingly causes or permits a regulated action to be undertaken
within an Authority's waterway management district, without
the consent of the Authority or another authorisation under the
Principal Act. The undertaking of a regulated action must
have resulted in land, works or water being seriously damaged
or another person suffering substantial economic loss.
The maximum penalty for an individual is 10 years imprisonment
or 1200 penalty units, or both. The maximum penalty for a body
corporate is 6000 penalty units. The maximum penalty of
10 years imprisonment is the same maximum penalty that
currently applies to enforcement of the offence under existing
section 194(1) under section 295 of the Principal Act, which is
repealed by clause 93.
New section 194(1A) provides for an offence if a person
recklessly causes or permits a regulated activity to be undertaken
within an Authority's waterway management district, without
the consent of the Authority or another authorisation under the
Principal Act. The undertaking of a regulated activity must
have resulted in land, works or water being seriously damaged
or another person suffering substantial economic loss.
The maximum penalty for an individual is 5 years imprisonment
or 600 penalty units, or both. The maximum penalty for a body
corporate is 3000 penalty units.
New section 194(1B) provides for an offence if a person causes
or permits a regulated activity to be undertaken within an
Authority's waterway management district, without the consent
of the Authority or another authorisation under the Principal Act.
The maximum penalty for an individual is 240 penalty units.
The maximum penalty for a body corporate is 1200 penalty units.
35
New section 194(1C) provides that the offences under new
section 194(1), (1A) and (1B) do not apply to the holder of a
declared bulk entitlement or a public statutory authority.
Clause 79(2) amends section 194(2) of the Principal Act.
Clause 79(2)(a) substitutes "works of a kind referred to in
subsection (1)" for "any regulated action". Clause 79(2)(b)
substitutes "the works for the regulated action.
Clause 79(3) amends section 194(3) by substituting "works of a
kind referred to in subsection (1)" for "any regulated action".
Clause 79(4) inserts new section 194(4) into the Principal Act
to provide a definition of regulated action for the purposes of
section 194. It is defined to mean works which interfere, or are
likely to interfere, with designated land or works or the quality,
quantity or flow of water in designated land or works.
Clause 80 substitutes new section 195(1), (1A), (1B) and (1C) for existing
section 195(1) of the Principal Act. Section 195(1)(a) of the
Principal Act currently provides for offences relating to
unauthorised drainage works, or the unauthorised alteration
or removal of drainage works, connected to or discharging
into a designated waterway or designated land or works in an
Authority's waterway management district. New section 195
provides for an offence of causing or permitting a regulated
drainage activity, which is defined in new section 195(4).
New section 195(1), (1A) and (1B) provide for 3 variations of
these offences: committing the offence knowingly or recklessly
or where neither of these fault elements are part of the offence.
New section 195(1) provides for an offence if a person
knowingly causes or permits a regulated drainage activity to be
undertaken within an Authority's waterway management district,
without the consent of the Authority. The undertaking of the
regulated drainage activity must have resulted in land, works or
water being seriously damaged or another person suffering
substantial economic loss. The maximum penalty for an
individual is 10 years imprisonment or 1200 penalty units, or
both. The maximum penalty for a body corporate is 6000 penalty
units. The maximum penalty of 10 years imprisonment is the
same maximum penalty that currently applies to enforcement of
the offence under existing section 195(1) under section 295 of the
Principal Act, which is repealed by clause 93.
36
New section 195(1A) provides for an offence if a person
recklessly causes or permits a regulated drainage activity to be
undertaken within an Authority's waterway management district,
without the consent of the Authority. The undertaking of the
regulated drainage activity must have resulted in land, works or
water being seriously damaged or another person suffering
substantial economic loss. The maximum penalty for an
individual is 5 years imprisonment or 600 penalty units, or both.
The maximum penalty for a body corporate is 3000 penalty units.
New section 195(1B) provides for an offence if a person causes
or permits a regulated drainage activity to be undertaken within
an Authority's waterway management district, without the
consent of the Authority. The maximum penalty for an
individual is 240 penalty units. The maximum penalty for a
body corporate is 1200 penalty units.
New section 195(1C) provides that the offences under new
section 195(1), (1A) and (1B) do not apply to a public statutory
authority.
Clause 80(2) amends section 195(2) of the Principal Act.
Clause 80(2) substitutes "anything specified in subsection (1)"
for "any regulated drainage activity".
Clause 80(3) amends section 195(3) by substituting
"anything specified in subsection (1)" for "any regulated
drainage activity".
Clause 80(4) inserts new section 195(4) into the Principal Act
to provide a definition of regulated drainage activity for the
purposes of section 195, which is defined to mean any of the
following--
• any connection of any drainage works to a designated
waterway or designated land or works;
• any discharge (whether directly or indirectly) into a
designated waterway or designated land or works;
• any alteration or removal of any drainage works that
are connected to or that discharge into a designated
waterway or designated land or works.
37
Clause 81 amends section 208 of the Principal Act. Section 208(1)(a) of
the Principal Act provides for an offence relating to unauthorised
works or structures on land liable to flooding or a declared
floodway area. Section 208(1)(b) of the Principal Act provides
for an offence relating to unauthorised works or structures
between a building line and any part of the associated designated
waterway, land or works. New section 208 provides for an
offence of causing or permitting the undertaking or erection of
any regulated works or structure, which is defined in new
section 208(7).
Clause 81(1) substitutes sections 208(1) and (1A) of the
Principal Act for new section 208(1), (1A), (1B) and (1C).
New section 208(1), (1A) and (1B) provide for 3 variations of
these offences: committing the offence knowingly or recklessly
or where neither of these fault elements are part of the offence.
New section 208(1) provides for an offence if a person
knowingly causes or permits the undertaking or erection of
any regulated works or structure within a relevant Authority's
waterway management district, without the consent of the
relevant Authority. The undertaking or erection of the regulated
works or structure must have resulted in land, works or water
being seriously damaged or another person suffering substantial
economic loss. The maximum penalty for an individual is
10 years imprisonment or 1200 penalty units, or both.
The maximum penalty for a body corporate is 6000 penalty units.
The maximum penalty of 10 years imprisonment is the same
maximum penalty that currently applies to enforcement of the
offence under existing section 208(1) under section 295 of the
Principal Act, which is repealed by clause 93.
New section 208(1A) provides for an offence if a person
recklessly causes or permits the undertaking or erection of any
regulated works or structure within a relevant Authority's
waterway management district, without the consent of the
relevant Authority. The undertaking or erection of the regulated
works or structure must have resulted in land, works or water
being seriously damaged or another person suffering substantial
economic loss. The maximum penalty for an individual is
5 years imprisonment or 600 penalty units, or both.
The maximum penalty for a body corporate is 3000 penalty
units.
38
New section 208(1B) provides for an offence if a person causes
or permits the undertaking or erection of any regulated works or
structure within a relevant Authority's waterway management
district, without the consent of the relevant Authority.
The maximum penalty for an individual is 120 penalty units.
The maximum penalty for a body corporate is 600 penalty units.
New section 208(1C) provides that the offences under new
section 208(1), (1A) and (1B) do not apply to a public statutory
authority and a person who is acting under and in accordance
with a levee maintenance permit.
Clause 81(2) makes a consequential amendment to
section 208(2), which requires a public statutory authority to
notify the relevant Authority of its intention to undertake works
or erect structures to which section 208 applies.
Clause 81(3) makes a technical amendment to existing
section 208(4) of the Principal Act to clarify that the requirement
on an owner of land to comply with a notice of an Authority
served under section 208(4) must comply within 14 days of the
notice being served on the owner.
Clause 81(4) substitutes section 208(5) of the Principal Act.
The new section 208(5) provides for an offence if a person fails
to comply with a notice under section 208(4). The maximum
penalty for an individual is 60 penalty units. The maximum
penalty for a body corporate is 300 penalty units.
Clause 81(5) inserts new section 208(7) which provides a
definition of regulated works or structure to mean any of the
following--
• works or structures within an area of land declared to
be liable to flooding or declared to be a floodway area
that may have the effect of controlling or mitigating
floodwaters, discharging stormwater, excluding tidal
water, or concentrating or diverting floodwater or
stormwater; or
• works or a structure between a building line and any
part of the designated waterway or designated land or
works in relation to which the building line was
declared.
39
New section 208(7) provides a definition of relevant Authority to
mean an Authority to which Division 4 of Part 10 applies and
that has the function referred to in section 202(1)(d) or (e) or
referred to in section 202(2)(d) or (e) of the Principal Act.
Clause 82 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,
distinct from irrigation drainage and salinity mitigation services.
Clause 83 inserts new Part 11A in the Principal Act. The new Part provides
for the imposition of charges for salinity mitigation works and
measures.
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.
New Division 2 of Part 11A sets out the functions and powers of
the Minister in relation to salinity mitigation.
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.
New Division 3 of Part 11A deals with salinity impact charges.
New section 232B empowers the Minister to fix,
by determination, a capital works salinity impact charge and an
annual salinity impact charge. 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.
40
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.
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.
New section 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.
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 84 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 85 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 85(2) substitutes section 259(10) of the Principal Act.
The amendment of section 259(10) is a consequential amendment
to prescribe new criteria for determining what constitutes a
"separate occupancy". They are: any classes of land (or part of
land), and any considerations for determining what constitutes
an occupancy, that are prescribed in regulations made under the
Principal Act. If there are not any regulations, an Authority must
have regard to the principles set out in the Valuation of Land
Act 1960.
Clause 86 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
41
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 87 amends 274 to simplify arrangements for paying a fee imposed
under a tariff by instalments.
Clause 88 substitutes in section 281A(2) of the Principal Act the reference
to "water districts" with "water supply districts" because such
districts are redefined by clause 5.
Clause 89 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.
New section 287A provides for the Minister to require payment
by notice and the new 287B spells out the matters a notice must
specify.
New section 287AC specifies when a salinity impact charge must
be paid.
New section 287AD specifies that an unpaid salinity impact
charge (including interest) is a debt due to the Crown and
recoverable in a court.
New section 287AE provides for interest to bear on an unpaid
salinity impact charge.
New section 287AF specifies that an unpaid salinity impact
charge can become a charge on property.
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.
42
Clause 90 amends section 287F of the Principal Act to substitute references
to "water corporation" and "water corporations " for "Authority"
and "Authorities". These changes enable the extension of the use
of allocation statements for the transfer of property, rights and
liabilities to catchment management authorities.
Clause 91 substitutes existing section 288 with new sections 288 and 288A.
Existing section 288 provides for an offence relating to a
person destroying, damaging, removing, altering or in any way
interfering with any works or other property of an Authority,
without the consent of the Authority. New section 288 provides
for an offence of destroying, damaging, removing, altering or in
any way interfering with property of an Authority, which is
defined in new section 288(4). New section 288(1), (2) and (3)
provide for 3 variations of these offences: committing the offence
knowingly or recklessly or where neither of these fault elements
are part of the offence.
New section 288(1) provides for an offence if a person
knowingly destroys, damages, removes, alters or in any way
interferes with any property of an Authority without the consent
of the Authority or another authorisation under the Principal Act
or any other Act. The destroying, damaging, removing, altering
or interfering with the property of the Authority must have
resulted in land, works or water being seriously damaged or
another person suffering substantial economic loss. The
maximum penalty for an individual is 10 years imprisonment or
1200 penalty units, or both. The maximum penalty for a body
corporate is 6000 penalty units. The maximum penalty of
10 years imprisonment is the same maximum penalty that
currently applies to enforcement of the offence under existing
section 288(1) under section 295 of the Principal Act, which is
repealed by clause 93.
New section 288(2) provides for an offence if a person recklessly
destroys, damages, removes, alters or in any way interferes with
any property of an Authority without the consent of the Authority
or another authorisation under the Principal Act or any other Act.
The destroying, damaging, removing, altering or interfering with
the property of the Authority must have resulted in land, works
or water being seriously damaged or another person suffering
substantial economic loss. The maximum penalty for an
individual is 5 years imprisonment or 600 penalty units, or both.
The maximum penalty for a body corporate is 3000 penalty units
43
New section 288(3) provides for an offence if a person destroys,
damages, removes, alters or in any way interferes with any
property of an Authority without the consent of the Authority or
another authorisation under the Principal Act or any other Act.
The maximum penalty for an individual is 240 penalty units.
The maximum penalty for a body corporate is 1200 penalty units
New section 288(4) provides a definition of property of an
Authority to include works or other real or personal property that
belongs to an Authority or is under the control and management
of an Authority.
New section 288A provides an evidentiary presumption about
an offence committed under new section 288(1), (2) or (3).
This is the same evidentiary presumption provided by existing
section 288(3), which new section 288A replaces.
New section 288A(1) provides that evidence that works on land
owned or occupied by a person have been destroyed, damaged,
removed, altered or in any way interfered with, is evidence and
in the absence of evidence to the contrary is proof that the
destruction, damage, removal, alteration or interference with
has been done by that person.
For the purpose of section 288A, section 288A(2) defines works
on land owned or occupied by a person to include works situated
on land owned or occupied by a person, or works that service
only land owned or occupied by a person or works that record
only the amount of water delivered to land owned or occupied by
a person.
Clause 92 substitutes existing section 289 with a new sections 289, 289A,
289B, and 289C.
Existing section 289(1) provides for an offence of unauthorised
taking, using or diverting water under the control and
management of an Authority or supplied by an Authority for the
use of another person. This offence is replaced by the offences
under new section 289 (1), (2) and (3). New section 289
provides for 3 variations of these offences: committing the
offence knowingly or recklessly or where neither of these fault
elements are part of the offence.
New section 289(1) provides an offence if a person knowingly
takes, uses or diverts an Authority's water without the consent of
the Authority or another authorisation under the Principal Act or
44
any other Act. The taking of water must have resulted in land,
works or water being seriously damaged or another person
suffering substantial economic loss. The maximum penalty for
an individual is 10 years imprisonment or 1200 penalty units, or
both. The maximum penalty for a body corporate is 6000 penalty
units. The maximum penalty of 10 years imprisonment is the
same maximum penalty that applies to enforcement of current
section 289(1) under section 295 of the Principal Act, which is
repealed by clause 93.
New section 289(2) provides an offence if a person recklessly
takes, uses or diverts an Authority's water without the consent of
the Authority or another authorisation under the Principal Act or
any other Act. The taking of water must have resulted in land,
works or water being seriously damaged or another person
suffering substantial economic loss. The maximum penalty for
an individual is 5 years imprisonment or 600 penalty units, or
both. The maximum penalty for a body corporate is 3000 penalty
units.
New section 289(3) provides an offence if a person takes, uses or
diverts an Authority's water without the consent of the Authority
or another authorisation under the Principal Act or any other Act.
The maximum penalty for an individual is 240 penalty units.
The maximum penalty for a body corporate is 1200 penalty units
New section 289(4) provides a definition of Authority's water
to mean water that is under the control and management of an
Authority or water that is supplied by an Authority for the use of
another person.
New section 289A provides an evidentiary presumption about
an offence committed under new section 289(1), (2) or (3).
It replaces an existing evidentiary presumption in current
section 289(3). New section 289A(1) provides that evidence
that water has been used on land that is specified in a relevant
authorisation held by that person is evidence that the person took,
used or diverted the water, and in the absence of evidence to the
contrary, is proof of that fact.
New section 289A(2) provides that where section 289A(1) does
not apply, evidence that water has been taken to, diverted to or
used on land occupied by the person is evidence that the person
took, used or diverted that water and, in the absence of evidence
to the contrary, is proof of that fact.
45
New section 289A(3) provides that to avoid doubt,
section 289A(2) applies to an occupier who is also the owner
of the land.
New section 289A(4) provides that if a person has been found
guilty of an offence under section 288(1), (2) or (3) in relation to
a meter of an Authority that measures the amount of water that
is taken to, delivered to, supplied to or used on land owned or
occupied by the person, the finding of guilt is evidence that the
person took, used or diverted water and, in the absence of
evidence to the contrary, is proof of that fact. It also provides
that such a finding of guilt is also evidence that the person was
not authorised to take or use that water and, in the absence of
evidence to the contrary, is proof of that fact.
New section 289A(5) provides a definition of relevant
authorisation, for the purposes of new section 289A, to mean a
consent of the Authority or another authorisation under the
Principal Act or any other Act.
New section 289B(1) provides an offence if a person
knowingly interferes with the flow of water in a waterway,
aquifer or works under the control and management of an
Authority without the consent of the Authority or another
authorisation under the Principal Act or any other Act.
The interference must have resulted in land, works or water
being seriously damaged or another person suffering substantial
economic loss. The maximum penalty for an individual is
10 years imprisonment or 1200 penalty units, or both.
The maximum penalty for a body corporate is 6000 penalty units.
The maximum penalty of 10 years imprisonment is the same
maximum penalty that applies to enforcement of current
section 289(1) under section 295 of the Principal Act, which
is repealed by clause 93.
New section 289B(2) provides an offence if a person
recklessly interferes with the flow of water in a waterway,
aquifer or works under the control and management of an
Authority without the consent of the Authority or another
authorisation under the Principal Act or any other Act.
The taking of water must have resulted in land, works or water
being seriously damaged or another person suffering substantial
economic loss. The maximum penalty for an individual is
5 years imprisonment or 600 penalty units, or both.
46
The maximum penalty for a body corporate is 3000 penalty
units.
New section 289(3) provides an offence if a person interferes
with the flow of water in a waterway, aquifer or works under the
control and management of an Authority without the consent of
the Authority or another authorisation under the Principal Act
or any other Act. The maximum penalty for an individual is
240 penalty units. The maximum penalty for a body corporate is
1200 penalty units.
New section 289C(1) provides that an authorised water officer
may serve a water infringement notice on a person: who is not
authorised to take, use or divert water by the consent of the
Authority or any other lawful authority, whom the officer has
reason to believe has contravened section 289(3), and who took,
used or diverted an amount of water equal to or less than
10 megalitres.
New section 289C(2) provides that an authorised water officer
may serve a water infringement notice on a person: who is
authorised to take, use or divert water by the consent of the
Authority or any other lawful authority, whom the officer has
reason to believe has contravened section 289(3) and who took,
used or diverted an amount of water in addition to what the
person was authorised to take (the authorised amount).
This subsection enables a water infringement notice to be issued
only if the additional amount of water taken, used or diverted, in
contravention of new section 289(3), is equal to or less than both
the following measures: 10 megalitres of water and 20% of the
authorised amount.
New section 289C(3) provides that an authorised water officer
may serve a water infringement notice on a person: who did not
have consent or was not authorised to interfere with the flow of
water in any waterway, aquifer or works under the control and
management of an Authority, whom the officer has reason to
believe has contravened section 289B(3), and who took or
diverted an amount of water equal to or less than 10 megalitres.
New section 289C(4) provides that an authorised water officer
may serve a water infringement notice on a person: who has
consent or held an authorisation to interfere with the flow of
water in any waterway, aquifer or works under the control and
management of an Authority, whom the officer has reason to
47
believe has contravened section 289B(3) and who took or
diverted an amount of water in addition to what the person was
authorised to take (the authorised amount). This subsection
enables a water infringement notice to be issued only if the
additional amount of water taken or diverted, in contravention of
new section 289B(3), is equal to or less than both the following
measures: 10 megalitres of water and 20% of the authorised
amount.
Clause 93 repeals section 295 of the Principal Act. Section 295 is no
longer required because aggravated forms of offences, of causing
serious property damage or substantial economic harm, are now
contained in offence provisions throughout the Act.
Clause 94 substitutes section 295A of the Principal Act with new
sections 295A and 295B. New section 295A provides that an
authorised water officer appointed by an Authority may serve an
infringement notice on a person. The infringement notice may be
served when the officer has reason to believe that the person has
committed a water infringement offence. New section 295B
provides that the offences provided for in the following
provisions are indictable offences: sections 33E(1) and (2),
63(1) and (2), 75A(1) and (2), 76A(1) and (2), 145A(1), (2), (4)
and (5), 169A(1) and (2), 194(1) and (1A), 195(1) and (1A),
208(1), (1A), 288(1) and (2), 289(1) and (2), 289(1) and (2)
and 289C(1) and (2).
Clause 95 amends section 301 of the Principal Act. Section 301 currently
provides for evidentiary presumptions in court proceedings under
the Principal Act.
Clause 95(1) amends section 301(1) by substituting "delivered to
a property" for "taken to, supplied to, delivered to, or used on, a
property".
Clause 95(2) substitutes sections 301(2) and 301(3).
New section 301(2) provides that section 301(3) will apply in any
proceeding in which the amount of water taken to, supplied to,
delivered to, or used on a property is relevant. The proceeding
must be under the Act, or regulations or by-laws under the Act.
The last requirement is that the Authority must consider that the
water meter for the property did not accurately record the amount
of water that went to the land as a result of the water meter
malfunctioning, or having been destroyed, damaged, or in any
48
way interfered with, or alternatively there must be no accurately
working meter on the property.
New section 301(3) provides that, in situations described in
section 301(2), an amount of what estimated as being supplied,
delivered to, or used on a property for a certain period, by an
Authority, is evidence of the amount of water that went to that
property during the period. The estimate must have been made
under section 142A and any relevant regulations.
Clause 96 amends section 306 of the Principal Act.
Clause 96(1) amends section 306(1) to prevent the powers
to determine a salinity impact zone under section 232, fix a
salinity impact charge under section 232B or apply a salinity
impact charge in relation to land that is outside Victoria under
section 287AH(2)(b) from being delegated.
Clause 96(2) inserts a new section 306(5) to provide for
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.
Clause 97 substitutes section 309(1) of the Principal Act. New section
309(1) provides that, for the purposes of exercising the Minister's
powers and performing the Minister's functions under Parts 3A,
4, 4B and 5 of the Principal Act, the Minister--
• has the powers given by section 133 to an officer of an
Authority to enter land; and
• may authorise a person in writing to exercise the powers
given by section 133 to enter land.
Clause 98 amends section 324 of the Principal Act. Section 324 provides
for certain regulations to be made.
Clause 98(1)(a) amends section 324(1)(ab) by inserting a
reference to a permit.
Clause 98(10(b) amends section 324(1)(b) by substituting an
authority for a water corporation.
Clause 98(1)(c) 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
49
provisions will replace the by-law making powers in
section 160(1)(b) and regulation making powers in
section 122ZA.
Clause 98(12)(a) amends section 324(1)(f) by substituting water
supply for the supply, delivery, taking or using of water.
Clause 98(2)(b) amends section 324(1)(g) by substituting water
supplied to land with water supplied or delivered to land, used on
land or taken to land.
Clause 98(3) inserts new section 324(1)(ua) and (ub).
New section 324(1)(ua) provides that the Governor in Council
can make regulations for prescribing water infringement
offences. The regulations can also specify that the infringement
offence will apply at certain times, days, or places, or in certain
circumstances, or to a certain person of class of person.
New section 324(1)(ub) provides that the Governor in Council
can make regulations for prescribing infringement penalties for
water infringement offences. The regulations can also specify a
different amount of infringement penalties for offences consisting
of different conduct, facts, things or circumstances.
Clause 98(4) substitutes section 324(3)(f) for new
section 324(3)(f) and (g).
New section 324(3)(f) provides that regulations may be
made to impose a penalty not exceeding 20 penalty units for a
contravention of the regulations. Regulations may also be made
to impose a penalty on a body corporate that may be 5 times
higher than the penalty for an individual.
New section 324(3)(g) provides that regulations may be made to
impose an infringement penalty that is different depending on
whether the offence is committed by an individual or a body
corporate. The penalty for a body corporate must be no more
than 5 times the penalty for the individual.
Clause 99 inserts new Part 16 into the Principal Act to deal with
transitional, validation and other matters.
New Division 1 of Part 16 deals with serviced properties.
50
New section 335 inserts a definition of serviced property
commencement for the purposes of the new Division 2 of
Part 16, 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.
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 amended
section 144 (see clause 57), 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.
51
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.
New Division 2 of Part 16 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).
New section 339 inserts a definition of validation date for
the purposes of the new Division 2, being 19 March 2019,
the date on which the bill is introduced into the Parliament.
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.
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
52
Act or otherwise is taken to be and always to have been valid
and effective.
New section 342 provides that proceedings in a court or tribunal
commenced prior to the validation date but are not completed by
that date are not affected by new sections 340 and 341.
New Division 3 of Part 16 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.
New Division 4 of Part 16 sets out a number of transitional
arrangements for sustainable water strategies, long term water
resource assessments and review and saving provisions relating
to infringement notices and the Water (Estimation, Supply and
Sewerage) Regulations 2014.
New section 344(1) provides that, subject to new subsection (2),
Division 1B of Part 3, as amended, applies to any draft
sustainable water strategy that had commenced, but was not
completed before the commencement date of the amended
Division.
New section 344(2) provides that any uncompleted strategy will
continue to be subject to section 22D(2) and 22E(b) as in force
immediately before the commencement of section 9 of the
Water and Catchment Legislation Amendment Act 2019.
The purpose of this clause is to ensure that the amended
provisions for the preparation of a sustainable water strategy
apply to the preparation of a sustainable water strategy that has
already commenced and to a review of a strategy (which must
follow the same procedure that applies, with any necessary
modification, to the making of a sustainable water strategy,
under section 221(4)) that has already commenced
New section 345 provides that the old Act continues to apply
to outstanding infringement notices that were issued under
section 295A of the old Act, after the commencement of
section 94 of the Water and Catchment Legislation
Amendment Act 2019, as if section 94 had not come into
operation.
53
New section 346 provides that regulation 9 of the Water
(Estimation, Supply and Sewerage) Regulations 2014 is taken to
continue in force, after commencement of section 56 of the
Water and Catchment Legislation Amendment Act 2019 as if
the regulation was made under new section 142A(2)(b) of the
Water Act 1989 as amended by section 56. New section 346
also provides that regulation 9 can also be amended or revoked
accordingly.
Part 3--Repeal of spent and redundant provisions
in the Water Act 1989
Clause 100 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 101 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 102 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 103 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.
Clause 104 repeals section 35 of the Principal Act. Section 35 contains
a mechanism for converting pre-existing entitlements to
bulk entitlements under the Principal Act. All pre-existing
entitlements have now been converted. This section is now
redundant.
Clause 105 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.
54
Clause 106 repeals section 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 107 repeals section 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 108 repeals section 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
section 171B(c) are consequential.
Clause 109 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 110 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 111 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.
Clause 112 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 113 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 clauses 116 and 117).
Clause 114 repeals section 332 and 333 of the Principal Act which contain
transitional arrangements relating to Langwarry Drainage Trust.
The provisions are no longer required.
55
Clause 115 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 116 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 117 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.
Part 4--Amendment of the Catchment and
Land Protection Act 1994
Clause 118 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 119 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
management and land protection. The amendments to this
section extend the objectives to include specified Aboriginal
parties.
Clause 120 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 120 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.
56
Clause 121 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 121 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 122 inserts new section 12B 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.
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.
57
Clause 123 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 123 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 124 inserts new section 27A in the Catchment and Land Protection
Act 1994.
New section 27A(1) enables 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 section 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 section 27A(3) provides for the Minister to accept or reject
Melbourne Water Corporations' recommendation.
New section 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 section 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 section 27A(6) provides that a declaration
made under new section 27A(5) may include roads and roadsides
as part of a special water supply catchment area.
New section 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
58
protection region includes a reference to the waterway
management district of Melbourne Water Corporation.
Clause 125 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 125 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 126 amends clause 2 of Schedule 2 of the Catchment and Land
Protection Act 1994 to insert new requirements for an Authority
preparing a management plans--being regional management
plans or a special area plans--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) 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 clause 2(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 clause 2(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
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 127 provides that the Water and Catchment Legislation
Amendment Act 2019 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).
59