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WATER AMENDMENT (FLOOD MITIGATION) BILL 2014

  Water Amendment (Flood Mitigation)
             Bill 2014

                        Introduction Print


              EXPLANATORY MEMORANDUM


                                 General
In summary, the Bill amends the Water Act 1989, the Conservation,
Forests and Lands Act 1987, the Crown Land (Reserves) Act 1978, the
Forests Act 1958, the Land Act 1958, the National Parks Act 1975 and the
Wildlife Act 1975 to regulate the maintenance of certain levees on certain
Crown land.

                              Clause Notes

                     PART 1--PRELIMINARY
Clause 1   sets out the main purposes of the Bill which are--
             ·      to amend the Water Act 1989 (the Water Act) to
                    provide for the regulation of the maintenance of certain
                    levees on certain Crown land; and
             ·      to amend the Crown Land (Reserves) Act 1978, the
                    Forests Act 1958, the Land Act 1958, the National
                    Parks Act 1975 and the Wildlife Act 1975 to insert
                    offences relating to the unauthorised construction,
                    removal, alteration or maintenance of levees; and
             ·      to amend the Conservation, Forests and Lands Act
                    1987 to allow for the delegation of certain functions
                    under new Part 5AA of the Water Act.

Clause 2   provides that the Bill will commence on proclamation. If any of
           the provisions of the Bill do not come into operation before
           1 March 2015, they come into operation on that day.


571469                               1       BILL LA INTRODUCTION 5/5/2014

 


 

PART 2--AMENDMENT OF WATER ACT 1989 Clause 3 inserts a definition of levee maintenance permit in section 3 of the Water Act for the purposes of the new provisions being inserted by this Bill. Clause 4 inserts a new Part 5AA in the Water Act providing for the regulation of levee maintenance on Crown land. New section 84AAA contains definitions of land manager, levee, maintenance and specified Crown land for the purposes of the new Part 5AA. The term land manger means the person given responsibility by an Act for the management of the land. If responsibility for the management of the land is not given by an Act to a person, it means the Minister administering the Act under which the land is managed. A land manager includes the Secretary to the Department of Environment and Primary Industries, a committee of management appointed under the Crown Land (Reserves) Act 1978 and any trustee of Crown land to whom the land has been vested either solely or jointly. The definition of specified Crown land excludes certain classes of land where, because of their nature, there are no levees to be maintained by private individuals. New section 84AAB sets out what is authorised under a levee maintenance permit. Subsection (1) provides that a levee maintenance permit authorises the permit holder to carry out maintenance on a levee on specified Crown land and to enter and pass over any specified Crown land for that purpose. Subsection (2) provides that once the first 12 months of the term of a levee maintenance permit has elapsed, the permit does not authorise the further use of machinery or the introduction of soil or other material to the land for the purpose of maintenance. The note to new 84AAB highlights that under the specified Acts, it is an offence to perform certain activities relating to a levee on specified Crown land without the requisite authority. 2

 


 

New section 84AAC sets out the process for making a levee maintenance permit application to the Minister and requires an application to be made in the form and manner approved by the Minister, to contain any information required by the Minister and to be accompanied by an application fee and the consent of any lessee on whose land the levy is located or over which access is required. New section 84AAD provides that the Minister must refer a copy of a levee maintenance permit application to the relevant land manager. Subsection (2) provides that the land manager has 28 days (or longer, if the Minister permits) in which the land manager must consider the application and may advise the Minister that the land manager does not require any conditions to be imposed on the permit or may specify any reasonable conditions required by the land manager to be imposed on the permit. Subsection (3) provides that if the land manager does not respond to the Minister within 28 days (or longer, if the Minister permits), the Minister may proceed to determine the application. New section 84AAE provides that the Minister may determine the application by either approving the application and issuing a permit or refusing the application. New section 84AAF sets out the matters to be included in a permit. These include the name and address of the holder, a description of the land and the location of the levee, any condition imposed on the permit, the period of the permit and any other information that the Minister thinks necessary. New section 84AAG relates to conditions of a levee maintenance permit. It provides that a permit is subject to any prescribed condition and any condition specified by a land manager or by the Minister. The Minister may specify a condition about the dimensions that a levee must not exceed, and, in so doing, may have regard to the past or present condition, height or width of all or part of a levee. The Minister may also specify a condition about the maintenance authorised by the permit. New section 84AAH provides that a levee maintenance permit is effective for the duration specified in the permit, up to a maximum of 5 years, unless it is revoked earlier. 3

 


 

New section 84AAI sets out the process for applying for a condition (except for a prescribed condition) of the permit to be varied or removed. It provides that a holder of a levee maintenance permit may apply to the Minister for a variation or removal of a permit condition. Subsection (2) requires an application to be made in the form and manner approved by the Minister, to contain any information required by the Minister and to be accompanied by any application fee and any relevant lessee's written consent. New section 84AAJ sets out the process for referring to the land manager an application for the variation or removal of a condition of a levee maintenance permit. Subsection (1) provides that the Minister must refer a copy of an application for variation or removal of a condition to the relevant land manager. Subsection (2) provides that the land manager has 28 days (or longer, if the Minister permits) to consider the application. Within that timeframe, the land manager may advise the Minister either that the land manager does not object to the variation or removal of the condition or does object to the variation or removal of the condition on a specified reasonable ground or may specify any reasonable variation to the condition that is required by the land manager. Subsection (3) provides that if the land manager does not respond to the Minister within 28 days (or longer, if the Minister permits), the Minister may proceed to determine the application. New section 84AAK provides that, subject to Part 5AA, the Minister may approve the application and vary or remove the condition or may refuse the application. A variation or removal is effective once written notice is given to the permit holder or on a later date specified in the notice. New section 84AAL provides for the variation or removal of a condition on a permit or the imposition of a new condition on the Minister's initiative. For example, this may arise following a request of a land manager. Subsection (1) provides that the Minister may initiate a variation or removal of a permit condition or may initiate a new condition. 4

 


 

Subsection (2) provides that the Minister must first obtain the written consent of any lessee of land on which the levee is situated or land over which the applicant requires access. Subsection (3) provides that the Minister must provide at least 28 days' written notice of the variation, removal or new condition to the permit holder before the variation, removal or new condition becomes effective, unless the permit holder agrees for the variation to be effective earlier. Subsection (4) requires the notice to be given to the permit holder to specify the reasons for the variation, removal or new condition. New section 84AAM relates to the referral to the land manager of a proposal to vary or remove a condition or impose a new condition. Subsection (1) provides that the section applies if the Minister initiates a variation or removal of any condition or initiates a new condition for a permit and thinks that the land manager is likely to be affected by the variation, removal or imposition of a condition. Subsection (2) provides that the Minister must refer a copy of the permit and details of the proposed variation, removal or new condition to the relevant land manager. Subsection (3) provides that within 28 days (or longer, if the Minister permits) the land manager must consider the proposed variation, removal or new condition. Within that timeframe, the land manager may advise the Minister that the land manager does not object to the variation or removal of the condition or to the new condition or does object on a specified reasonable ground or may specify any reasonable variation to the condition required by the land manager. Subsection (4) provides that, if the land manager does not respond to the Minister within 28 days, the Minister may proceed to vary or remove the condition or impose the new condition. New section 84AAN sets out the process for revoking a levee maintenance permit. Subsection (1) enables the Minister to revoke a permit by written notice served on the permit holder. 5

 


 

Subsection (2) provides that the Minister may revoke a permit if the permit holder has requested a revocation or if the Minister thinks that the permit has not been complied with. Subsection (3) provides that the Minister must provide written notice of the revocation and reasons for it to the permit holder. Subsection (4) provides that a revocation is effective when written notice of the revocation is given to the permit holder or on a later date specified in the notice. New section 84AAO provides that if a land manager considers an application made under Part 5AA, the Minister must pay the land manager a proportion, determined by the Minister, of the application fee. The proportion must represent a land manager's reasonable costs in considering such an application and the relevant land manager must give the Minister any information requested by the Minister to determine the proportion. Clause 5 inserts an exception to the offence in section 208(1) of the Water Act. That offence prohibits the undertaking or erection of unauthorised works or structures on a floodway or between a building line and a designated waterway, land or works. The exception is for a person acting under and in accordance with a levee maintenance permit from that offence. Clause 6 inserts an exception to the offence prescribed in sections 218(11) and (12) of the Water Act. Those offences relate to the unauthorised obstruction or interference with a drainage course. The exception is for a person acting under and in accordance with a levee maintenance permit. Clause 7 inserts a new regulation-making power in section 324 of the Water Act to provide for prescribing the conditions to which levee maintenance permits are subject. PART 3--AMENDMENT OF OTHER ACTS Clause 8 inserts the reference to the new Part 5AA of the Water Act being inserted by the Bill, in sections 11(3A) and (3B) of the Conservation, Forests and Lands Act 1987. Those sections enable the Minister responsible for that Act and the Secretary to the Department of Environment and Primary Industries to delegate their powers, functions and duties under specified Acts. This amendment will allow delegations to be made in respect of 6

 


 

the new Part 5AA to Parks Victoria or to its employees, of the Minister's or Secretary's functions where they are the land manager under the new scheme. Clause 9 inserts new section 21AA in the Crown Land (Reserves) Act 1978 that creates an offence to construct, remove, alter or carry out maintenance on a levee on land reserved under that Act. Subsection (1) makes it an offence for a person to do those activities on a levee on land reserved under the Crown Land (Reserves) Act 1978. Subsection (2) creates an exception to the offence. The exception applies to a person who does any of those activities on a levee in the performance of a function under that Act or the regulations or where the person is authorised under that Act or the regulations to perform those activities in the performance of a function under another Act or regulations made under other Acts. This exception is not intended to remove any obligation in any Act or regulations to obtain a licence, permit or other authority to do any of the activities within the ambit of this offence provision. Subsection (3) creates another exception to part of the offence for a person carrying out maintenance on a levee under and in accordance with a levee maintenance permit. Subsection (4) defines the terms levee, levee maintenance permit and maintenance for the purpose of this section. Clause 10 inserts new sections 96E and 96F in the Forests Act 1958. New section 96E provides that certain offences under section 96 of that Act do not apply to a person acting under and in accordance with a levee maintenance permit. Those offences relate to cutting, digging, splitting or felling forest produce without a licence issued under section 52 of that Act or without being otherwise authorised. New section 96F creates a new offence relating to levees and exceptions to that offence. Subsection (1) makes it an offence for a person to construct, remove, alter or carry out maintenance on a levee within reserved forest. 7

 


 

Subsection (2) creates an exception to the offence. The exception applies to a person who does any of those activities on a levee in the performance of a function under that Act or the regulations or where the person is authorised under that Act or the regulations to perform those activities in the performance of a function under another Act or regulations made under other Acts. This exception is not intended to remove any obligation in any Act or regulations to obtain a licence, permit or other authority to do any of the activities within the ambit of this offence provision. Subsection (3) creates another exception to part of the offence for a person carrying out maintenance on a levee under and in accordance with a levee maintenance permit. Subsection (4) defines the terms levee, levee maintenance permit and maintenance for the purpose of this section. Clause 11 inserts a new section 190A in the Land Act 1958. Subsection (1) makes it an offence for a person to construct, remove, alter or carry out maintenance on a levee on Crown land. Subsection (2) creates an exception to the offence. The exception applies to a person if the person does any of those activities on a levee in the performance of a function under that Act or the regulations or where the person is authorised under that Act or the regulations to perform those activities in the performance of a function under another Act or regulations made under other Acts. This exception is not intended to remove any obligation in any Act or regulations to obtain a licence, permit or other authority to do any of the activities within the ambit of this offence provision. Subsection (3) creates another exception to the offence for a person carrying out maintenance on a levee under and in accordance with a levee maintenance permit. Subsection (4) defines the terms Crown land, levee, levee maintenance permit and maintenance for the purpose of this section. 8

 


 

This proposed offence in the Land Act 1958 excludes from its ambit Crown land to which the similar offence being inserted into the Crown Land (Reserves) Act 1978, the Forests Act 1958, the National Parks Act 1975 and the Wildlife Act 1975, will apply. This is to ensure that the new offence in the Land Act 1958 does not overlap with the similar offences being inserted by the Bill into each of the other Crown land Acts. Clause 12 inserts an exception in section 191 of the Land Act 1958 to the offence of depositing rubbish on Crown lands. It provides that the offence does not apply to a person acting under and in accordance with a levee maintenance permit. Clause 13 inserts a new section 44B in the National Parks Act 1975 that creates an offence and exceptions to that offence. Subsection (1) makes it an offence for a person to construct, remove, alter or carry out maintenance on a levee within a park under the National Parks Act 1975 or land described in Schedule Four to that Act (a specified area). Subsection (2) creates an exception to the offence. The exception applies to a person who does any of those activities on a levee in the performance of a function under the National Parks Act 1975 or the regulations or where the person is authorised under that Act or the regulations to perform those activities in the performance of a function under another Act or regulations made under other Acts. This exception is not intended to remove any obligation in any Act or regulations to obtain a licence, permit or other authority to do any of the activities within the ambit of this offence provision. Subsection (3) creates another exception to part of the offence for a person carrying out maintenance on a levee under and in accordance with a levee maintenance permit. Subsection (4) defines the terms levee, levee maintenance permit, maintenance and specified area for the purpose of this section. 9

 


 

Clause 14 inserts a new section 21AAA in the Wildlife Act 1975 that creates an offence and exceptions to that offence. Subsection (1) makes it an offence for a person to construct, remove, alter or carry out maintenance on a levee within a State Wildlife Reserve or a Nature Reserve. Subsection (2) creates an exception to the offence. The exception applies to a person who does any of those activities on a levee in the performance of a function under that Act or the regulations or where the person is authorised under that Act or the regulations to perform those activities in the performance of a function under another Act or regulations made under other Acts. This exception is not intended to remove any obligation in any Act or regulations to obtain a licence, permit or other authority to do any of the activities within the ambit of this offence provision. Subsection (3) creates another exception to part of the offence for a person carrying out maintenance on a levee under and in accordance with a levee maintenance permit. Subsection (4) defines the terms levee, levee maintenance permit and maintenance for the purpose of this section. Clause 15 inserts an exception in section 21 of the Wildlife Act 1975 to the offence relating to digging or removing any sand, soil, or other material from a State Wildlife Reserve or a Nature Reserve or depositing rubbish, debris, or other material in a State Wildlife Reserve or a Nature Reserve. The exception applies to a person acting under and in accordance with a levee maintenance permit. PART 4--REPEAL OF AMENDING ACT Clause 16 provides for the repeal of the Act on 1 March 2016. The repeal of the Act does not affect the continuing operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984). 10

 


 

 


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