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Water Legislation Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
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--
clarify that a Water Authority may require the
installation of a meter where--
there are separate occupancies on land; and
multiple services are provided to land
(e.g. drinking water, recycled water and private
fire services); and
make amendments in relation to the liability of owners
corporations or lot owners for fees for services supplied
to subdivisions; and
provide that where a registration licence authorises a
person to take and use water from multiple springs,
soaks or dams, the licence may be amended, and new
registration licences may be issued, so that each licence
will authorise a person to take and use water from no
more than one spring, soak or dam, and to make related
consequential amendments; and
simplify the matters the Minister must consider when
determining applications for the transfer of licences
under sections 51 or 67 to successors in title; and
571116 1 BILL LA INTRODUCTION 27/11/2012
provide that a person must not transfer ownership of a
water share that is subject to a recorded mortgage unless
the Minister has approved the transfer; and
require certain records and information to be established
and maintained in the water register and specify who is
responsible for recording such records and information
in the water register; and
provide for the Minister to appoint a person employed
under Part 3 of the Public Administration Act 2004 to
undertake prosecutions for breaches of the Water Act;
and
make other minor amendments.
The Bill also amends the Water Industry Act 1994 (the Water
Industry Act) to better align the matters in relation to which a
Code may be issued by the Essential Services Commission (ESC)
under that Act with Part 13 of the Water Act.
Clause 2 provides that the provisions of the Bill come into operation on
1 December 2013 unless they are proclaimed earlier.
PART 2--AMENDMENT OF WATER ACT 1989
Part 2 of the Bill contains clauses 3 to 38, which amend the Water Act.
In the following explanations a reference to a section, Division, Part, or
Schedule is a reference to a provision of that Act.
Clause 3 amends section 3 to--
repeal the definition of mineral water as a result of the
definition becoming redundant (see clause 12(2)); and
amend the definition of registration licence to include
registration licences amended or issued under proposed
sections 51AA and 51AB (inserted by clause 11).
Clause 4 makes a consequential amendment to section 22(3)(b) to amend
the reference to a licence under section 51. The reference
currently includes registration licences under section 51(1A).
The reference will now extend to licences that can be issued
under proposed sections 51AA and 51AB, which are inserted by
clause 11.
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Clause 5 makes consequential amendments to section 32A similar to the
amendment described in clause 4, as a result of clause 11.
Clause 6 makes a consequential amendment to the definition of right to
water in section 33, similar to the amendment described in
clause 4, as a result of clause 11.
Clause 7 inserts proposed paragraph (ab) into section 33W(1) making it an
offence for a person to transfer ownership of a water share that is
subject to a recorded mortgage without first obtaining the
Minister's approval under section 33X(1). This operates in
tandem with the amendment to section 33X(1) being made by
clause 8 which enables a person, such as a mortgagee, to apply
for the Minister's approval to a transfer. These changes achieve
consistency with the requirements for the transfer of water shares
that are not the subject of a recorded mortgage.
Clause 8 inserts proposed paragraph (ab) into section 33X(1) to enable a
person seeking to transfer a water share that is subject to a
recorded mortgage to apply for the Minister's approval.
Clause 9 amends section 46A.
Clause 9(1) inserts proposed section 46A(1A) to provide that a
person holding an assignment of a water allocation under a bulk
entitlement under section 46 or 46A must not further assign the
water allocation unless the person has obtained the Minister's
approval and the approval of any Authority whose works will be
used to deliver the water. This ensures that a further assignment
of an allocation is subject to the same requirements as an initial
assignment under section 46(2).
Clause 9(2) amends existing section 46A(2) to clarify that the use
of water under a water allocation under a bulk entitlement that
has been assigned is subject to any other requirements of the Act
that would have applied if the water allocation was not assigned.
This ensures consistency with section 46(3) which provides for
the use of water under the water allocation under the bulk
entitlement to be subject to "any other requirements of [the] Act".
Clause 10 amends section 47E(1)(a) to change a reference to a temporary
transfer of a bulk entitlement to instead refer to an assignment of
a water allocation under section 46 or 46A. Section 47E governs
the subject matter of rules that may be made by the Minister in
relation to bulk entitlements.
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Clause 11 inserts proposed sections 51AA and 51AB.
Proposed section 51AA allows a person who holds a registration
licence issued for more than one spring, soak or dam under
section 51(1A) to apply to have a single registration licence for
each spring, soak or dam referred to in that licence. The original
licence will be amended to only refer to one spring, soak or dam,
and new licences will be issued for each other spring, soak or
dam. Given that an application can only be made under
section 51AA by a person who holds the licence, in effect, the
section will only apply to persons who own all of the land in
relation to which the original licence was issued.
Proposed section 51AB operates for the benefit of subsequent
owners of a parcel or parcels of land in relation to which the
original registration licence was issued. It enables those persons
to apply to have an individual licence issued to them for a spring,
soak or dam situated on the parcel of land that they now own.
On the issue of an individual licence, the original licence must be
amended to reflect the removal of the spring, soak or dam from
the original registration licence.
Each of proposed sections 51AA and 51AB contain similar
requirements ensuring that new or amended registration
licences--
may only relate to a spring, soak or dam that is already
covered by a registration licence;
have the same terms and conditions as the original
registration licence.
Further, the original registration licences must be amended to
ensure that the volume of water they authorise to be taken and
used is reduced to take account of the volume that is specified
on every new registration licence issued or original registration
licence amended under these proposed sections. This is
necessary to ensure that the total volume of water that may be
taken and used will not exceed the total volume specified under
the original registration licence.
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Clause 12 makes consequential amendments to section 56.
Clause 12(1) amends the various references to a licence under
section 51(1A). The amended references will now extend to
registration licences issued under proposed sections 51AA and
51AB (which are inserted by clause 11), in addition to those
licences issued under section 51(1A).
Clause 12(2) repeals section 56(1)(b), which will remove the
requirement for a licence issued under section 51 to take and use
mineral water to contain a condition imposing a surcharge of
15 cents per litre for each litre of mineral water taken and used
under that licence.
Clause 13 makes consequential amendments to section 59, and its heading,
similar to the amendment described in clause 4, as a result of
clause 11.
Clause 14 makes consequential amendments to section 59A, and its
heading, similar to the amendment described in clause 4, as a
result of clause 11.
Clause 15 makes a consequential amendment to section 59B, similar to the
amendment described in clause 4, as a result of clause 11.
Clause 16 makes a consequential amendment to section 59C. Unlike the
amendments to sections 59A and 59B, the amendment to
section 59C is to exclude registration licences under
section 51(1A), rather than include registration licences under
proposed sections 51AA and 51AB. This is because the matters
set out in section 59C are not relevant to registration licences.
Clause 17 makes a consequential amendment to section 60, similar to the
amendment described in clause 4, as a result of clause 11.
Clause 18 makes a consequential amendment to section 61, similar to the
amendment described in clause 4, as a result of clause 11.
Clause 19 inserts proposed section 62(5A) to enable the Minister to approve
certain applications for the permanent transfer of licences to take
and use water issued under section 51 without taking into account
the decision making criteria referred to in section 62(5). The new
provision only applies to applications to transfer a licence to a
successor in title to the owner of the land to which the licence
relates, where the licence will continue to be associated with the
same land. This is because the criteria are not relevant to
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transfers of licences that are part of an overall sale of land.
The provision will not apply to applications for amendment of
licences as such applications are made under section 59A.
The clause also amends section 62(2AA) to ensure consistency in
the way successors in title are referred to.
Clause 20 makes a consequential amendment to section 62A(1), similar to
the amendment to clause 4, as a result of clause 11.
Clause 21 inserts proposed section 74(5A) to enable the Minister to approve
certain applications for the permanent transfer of licences issued
under section 67 without taking into account the decision making
criteria referred to in section 75(5). The new provision only
applies to applications to transfer a licence to a successor in title
to the owner of the land to which the licence relates, where the
licence will continue to be associated with the same land. This is
because the criteria are not relevant to transfers of licences that
are part of an overall sale of land. The provision will not apply to
applications for amendment of licences as such applications are
made under section 73A.
Clause 22 amends section 84C to extend the Minister's responsibilities for
establishing and maintaining the system for the water register
established under Part 5A and to extend Authorities'
responsibilities for establishing and maintaining records and
information in the water register.
In particular, clause 22(1)(a) amends section 84C(2)(f) to remove
a reference to declared water systems in relation to licences
issued under section 67(1). Effectively, this requires the Minister
to establish and maintain records and information for section
67(1) licences where they relate to non-declared water systems,
in addition to the existing requirements in section 84C(2)(f) for
section 67(1) licences in relation to declared water systems. As a
result, records and information for all section 67(1) licences will
now be required to be established and maintained in the water
register. Clause 23 makes a related amendment to section 84V.
Clause 22(1)(b) inserts proposed section 84C(2)(g) to require the
Minister to establish and maintain records and information
relating to licences to take and use water, including registration
licences, as part of the water register. Clause 24 makes a related
amendment by inserting proposed section 84VA which specifies
the information the Minister must record.
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Clause 22(2) amends section 84C(3) by--
separating existing section 84C(3)(b) into new
subsections (3)(b) and (3)(c). Clause 25 makes a related
amendment by separating out existing section 84W(b)
into subsections (b) and (ba) which specify the
information an Authority must record; and
inserting new subsections (3)(d) and (3)(e), to require
Authorities to establish and maintain records and
information in relation to transfers of licences to take
and use water issued under section 51(1) and the
consumption of water under licences to take and use
water issued under section 51(1) or registration licences.
Clause 25 makes a related amendment by inserting
proposed sections 84W(bb) and (bc) which specify the
information an Authority must record; and
requiring, through new subsection (3)(f), an Authority
that is a Rural Water Authority to establish and maintain
records and information in relation to agreements to
supply non-drinking water. Clause 26 makes a related
amendment by inserting proposed section 84WA which
specifies the information such an Authority must record.
Clause 23 amends section 84V to remove reference to a declared water
system, effectively requiring the Minister to establish and
maintain information in the water register about all licences
issued under section 67(1) whether or not they relate to a
declared water system. Presently, these requirements apply only
to licences that relate to declared water systems. A consequence
of this amendment is that records and information regarding
licences in non-declared systems will form part of the water
register and become publicly available under section 84X
together with such licences for declared water systems.
Clause 24 inserts proposed section 84VA to specify the records and
information concerning licences issued under section 51(1) or
registration licences that the Minister must record in the water
register. Clause 27 makes a related amendment (see below).
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Clause 25 amends section 84W by--
separating out existing section 84W(b) into
paragraphs (b) and (ba) which specify the information
an Authority must record in the water register in relation
to any water allocation assignment in the water system
for which the Authority is responsible for supplying
water and any consumption of that water; and
inserting new paragraph (bb) to require an Authority to
record in the water register any temporary transfers of
licences to take and use water issued under
section 51(1); and
inserting new paragraph (bc) to specify the records and
information concerning licences issued under
section 51(1) or registration licences that an Authority
must record in the water register.
Clause 27 makes related amendments (see below).
Clause 26 inserts proposed section 84WA to specify the records and
information concerning agreements to supply non-drinking water
that a Rural Water Authority must record in the water register.
Clause 27 makes a related amendment (see below).
Clause 27 amends section 84X(1)(a) as a consequence of clauses 24, 25
and 26 to specify whether the records and information referred
to in those clauses are publicly available under section 84X.
Clause 23 also has a bearing on what is publicly available as a
result of the Bill: refer to the notes to that clause, above.
In particular, clause 27 amends section 84X so that--
the records and information referred to in clause 24,
regarding licences to take and use water, are to be made
publicly available;
the records and information referred to in clause 25 are
to be publicly available except the records and
information regarding the consumption of allocated
water and the volume of water consumed under licences
to take and use water;
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the records and information referred to in clause 26,
regarding agreements with Rural Water Authorities to
supply non-drinking water, are not to be made publicly
available.
Clause 28 amends section 141(1)(g) to substitute a reference to "authorised
officer" (as it is no longer defined in the Act) with "authorised
water officer" (a term defined in section 3) and "an officer of an
Authority".
Clause 29 makes a number of amendments to section 142 relating to the
powers of an Authority to meter water it delivers to land.
Subclause (1) amends section 142(1)(a) to substitute the
reference to water "supplied by [an] Authority to any land" with
a reference to water "delivered to the land by the Authority in
the exercise of its water supply or delivery functions".
This amendment makes section 142(1) consistent with proposed
section 142(1A) being inserted by subclause (2).
Subclause (2) inserts proposed sections 142(1A) and (1B) to
clarify the metering powers of Authorities in relation to multiple
occupancies on land and multiple water services.
Proposed subsection (1A) provides that an Authority may, in
addition to its general metering powers under section 142(1),
provide or install, and maintain, a separate meter for--
each occupancy on any land; and
each type of service provided to the land to measure the
amount of water delivered for each service.
Proposed subsection (1B) requires an Authority to determine
what constitutes a separate occupancy using the principles set out
in the Valuation of Land Act 1960. These principles are already
required to be used by an Authority when determining tariffs for
multiple occupancies under section 259 of the Water Act and the
proposed amendments ensure a consistent approach is used
within the Water Act. The relevant principles are those set out in
section 13DC of the Valuation of Land Act 1960.
Subclause (3) amends section 142(2) to substitute the reference to
"supplied to the land" with "delivered to the land in the exercise
of [the Authority's] water supply or delivery functions" to ensure
consistency with proposed section 142(1A)(b).
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Clause 30 amends section 144(1)(c) to substitute "irrigation of the land"
with "the service of delivering water to the land".
The amendment will ensure consistency between the basis for an
Authority with an irrigation district declaring serviced property
within that district, and section 222(1) of the Act, which requires
such Authorities to deliver water for stock and domestic use
(in addition to water for irrigation) (section 222(1)(a)(ii)) and to
deliver water for any purpose (section 222(1)(b)).
As a result of this change, an Authority with an irrigation district
will now be able to declare a property to be serviced property
where the Authority has made provision for the service of
delivering water to land, whether for irrigation or otherwise.
Clause 31 amends section 145 in relation to fees and metering.
Clause 31(1) substitutes section 145(2) and clause 31(3) inserts
new section 145(3C) to replace the existing requirement for
applicants to pay a fee set in a by-law with a requirement to pay
a fee set by a determination of an Authority.
Clause 31(2) inserts new section 145(3AA) to clarify that an
Authority may, as part of the conditions of connection to its
works, require the applicant to install a separate meter for--
each occupancy on the land on which the works to be
connected will be situated;
each type of service delivered, or proposed to be
delivered to the land, to measure the amount of water
delivered to that land; and
the positioning on the land of each meter as the
Authority considers appropriate. This latter requirement
is necessary as the Authority needs to be able to read
and maintain each meter. Therefore the power is
needed to require the applicant to install it in a suitable
position.
Clause 32 makes an identical amendment to section 231(1)(d) as clause 28
makes to section 141(1)(g).
Clause 33 amends section 263A to reflect the amendments relating to
meters made by clauses 29 and 31. Under section 263A(1), an
owners corporation of a subdivision to which a water supply or
sewage disposal service is provided is directly liable to pay any
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fees imposed by an Authority for the provision of those services.
Alternatively, under section 263A(2), the Authority may impose
the fees directly on the owners of each lot and apportion the fees
to each lot owner to be calculated based on either the total
number of lots, or the individual lot liability. Under section
263A(3) an owners corporation may specify which method the
Authority is to use.
Clause 33(1) amends section 263A(2) so that an Authority may
apportion liability to each lot owner based on the volume of
water used at each lot, as measured by the meter at that lot, or a
combination of this method and the existing methods referred to
above.
Clause 33(2) amends section 263A(3) so that the request of an
owners corporation under that section may refer to any, or a
combination, of the methods now recognised under
section 263A(2).
Clause 33(3) inserts new section 263A(4) to (4B) which sets out
the procedure by which an owners corporation makes the request
of an Authority under section 263A(3). Clause 33(4), (5) and (6)
make a range of consequential amendments to section 263A(5),
(6) and (7).
Clause 34 amends section 281 to remove potential overlap between an
Order under that section and the operation of a Code made by the
ESC under section 4F(2)(f)(ii) of the Water Industry Act. This is
achieved by removing the substantive power to regulate
maximum interest rates from section 281 of the Water Act and,
through clause 39, placing that power in the Water Industry Act.
Clause 35 inserts proposed section 296(1)(ab) to provide that a person
employed under Part 3 of the Public Administration Act 2004
may be appointed by the Minister to undertake prosecutions for
breaches of the Water Act. Presently, proceedings for an offence
may only be brought by the police, persons authorised by
individual Authorities or persons prescribed by regulations.
Clause 36 amends sections 303A(1) and (3) to change the existing reverse
legal onus in these sections to a reverse evidentiary burden, in
relation to presumptions of fact about the fidelity and robustness
of certain analytical evidence in criminal proceedings. As a
result of this change, it will be easier for a person in a proceeding
for an offence against the Water Act to rebut the presumptions.
11
Rather than prove to a court on the balance of probabilities that a
fact exists to displace one of the presumptions, a person will need
only point to or present evidence as to a fact that displaces one of
the presumptions.
Clause 37 inserts a note at the foot of clause 1 of Schedule 12A to flag that
a transfer of a mortgaged water share under Schedule 12A must
not occur without Ministerial consent as a result of the
amendments made to sections 33W and 33X by clauses 7 and 8.
Clause 38 makes consequential amendments to clause 28 of Schedule 15,
and its heading, by ensuring that the references in that clause to
registration licences include registration licences issued under
proposed sections 51AA and 51AB, which are inserted by
clause 11.
PART 3--AMENDMENT OF WATER INDUSTRY ACT 1994
Clause 39 amends section 4F of the Water Industry Act to ensure that the
power of the ESC to make, amend or revoke Codes in respect of
regulated entities (being water corporations) is better aligned
with the powers of water corporations under the Water Act.
Clause 39(1) amends section 4F(2) which authorises a Code to
deal with the recovery by water corporations of amounts owing
to them. In particular--
the Code will now be able to deal with amounts owing
under Divisions 5 and 7 of Part 13 of the Water Act, in
addition to Division 6;
the Code may now specify where a water corporation's
power to charge interest may not be used, rather than
where it may be used, for consistency with section 281
of the Water Act;
the Code will continue to be able to specify a maximum
interest rate, though this section will now form the sole
basis for the ESC specifying the interest rate, in light of
the removal of a separate power from section 281 of the
Water Act (see clauses 34 and 39(2) of the Bill);
the Code will now specify where a charge on a person's
property does not apply, rather than where it will apply,
for consistency with section 274(4A) of the Water Act.
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Clause 39(2) inserts proposed section 4F(3) to provide the same
mechanisms for the ESC to set maximum interest rates as those
that applied under section 281 of the Water Act prior to the
amendment of that section by clause 34.
PART 4--REPEAL OF AMENDING ACT
Clause 40 provides for the repeal of the Act on 1 December 2014.
The repeal of the Act will not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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