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Water Legislation (Amendment) Bill
Victorian Legislation and Parliamentary Documents
Circulation Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill which is to make amendments to
the Water Act 1989 and the Water Industry Act 1994 to
introduce provisions for permanent water saving plans and
increase the penalties for certain offences relating to the use of
water, such as unauthorised use of water or interference with a
water authority's property.
Clause 2 provides for the Bill to commence the day after receiving Royal
Assent.
Clause 3 amends the Water Act 1989 to allow the Victorian Civil and
Administrative Tribunal to make an order in proceedings brought
under that Act for payment of money in awarding damages in the
nature of interest. The rate of interest is to be the rate set under
the Penalty Interest Rates Act 1983 or any lesser rate the
Tribunal considers appropriate. This amendment is modelled on
similar provisions in other legislation such as the Fair Trading
Act 1999 and the Domestic Building Contracts Act 1995.
Clause 4 changes the current penalties for offences for unauthorised use of
water under sections 63(1), 63(1A), 288(1) and 289(1) of the
Water Act 1989 by trebling the amount of the maximum fine
that may be imposed for a first offence from 20 penalty units to
60 penalty units and for a subsequent offence from 40 penalty
units to 120 penalty units.
The amendments also provide for a doubling of the current
provision for imprisonment from 3 months for a first offence to
6 months and from 6 months to 12 months for a subsequent
offence.
Provision is also made for a further penalty for a continuing
offence of 5 penalty units. The amendments provide for a cap on
the maximum penalty for a continuing offence to be fixed at an
additional 20 penalty units.
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551091 BILL LA CIRCULATION 18/9/2003
Clause 5 Section 171(a) of the Water Act 1989 provides power for the
making of by-laws for drought response plans by water
authorities and under which restrictions and prohibitions on the
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use of water may be imposed. Currently, the penalty for offences
for breach of a restriction or prohibition is the general penalty
contained in section 160(3)(g) that applies to all by-laws, that is,
a penalty not exceeding 20 penalty units and an additional
5 penalty units for each day the offence continues either after
service of a notice of contravention or after conviction for the
offence.
Clause 5 inserts a new sub-section to provide for a specific
penalty for a contravention of a by-law made under section
171(a) of the Act. The penalty for contravention of a breach of a
restriction or prohibition under a drought response plan made in
accordance with that provision will be 40 penalty units for a first
offence or imprisonment for 3 months and 80 penalty units or
6 months for a subsequent offence. An additional penalty not
exceeding 5 penalty units will apply in the case of a continuing
contravention not exceeding 5 penalty units with a cap of
20 penalty units after service of notice of contravention or, if no
notice has been served, after conviction of a person for having
committed an offence under that provision.
Clause 6 inserts new section 170A which provides for a water authority to
prepare a permanent water saving plan and submit the plan to the
Minister for approval. Once the Minister has approved the plan,
the authority must adopt it. A plan must contain a Schedule
which sets out restrictions or prohibitions on the use of water.
Restrictions or prohibitions contained in a plan may apply to an
area or part of an area. A restriction may require use of water to
be authorised by a specified person or class of persons.
The Minister may provide written directions which must be
complied with by an authority in preparing a plan, or written
guidelines to which an authority must have regard.
To allow the community the opportunity to provide comments or
submission on a proposed plan before it is submitted to the
Minister, an authority must publish a notice summarising the
restrictions and prohibitions in the Government Gazette and a
newspaper circulating in the area which may be affected by the
plan and noting the date by which comments and submissions
must be provided. The notice must also specify where a copy of
the plan can be obtained.
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New section 170B provides for variations to a plan as approved
by the Minister to be adopted. The Minister may also, by notice
served on an authority, require it to review a plan in accordance
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with any written direction or having regard to any written
guidelines and to submit a revised plan to the Minister for
approval. As for preparation of a plan, the authority must follow
the same process in inviting public comment or submission.
New section 170C requires that an authority must not make
major deviations from a plan. Guidelines issued by the Minister
may specify what are major deviations.
New section 170D provides that a permanent water saving plan at
any time is the plan as originally adopted or adopted as varied by
an authority and that an up to date copy must be made available
on request at the authority's offices.
New section 170E states that once an authority has adopted a
plan it must implement the plan immediately.
New section 170F provides for the penalty of the contravention
of a permanent water saving plan of 10 penalty units for a first
offence and 20 penalty units for a subsequent offence.
New section 170G provides for a restriction or prohibition made
under a drought response plan will prevail over one made under a
permanent water saving plan in the event of any inconsistency.
Clause 7 amends section 296 of the Water Act 1989 to provide that an
employee of the holder of a licence under section 17(1) of the
Water Industry Act 1994 may prosecute offences under
sections 288(1), 289(1) and 290(1) including interference with
property, wrongful taking of water and uncovering or exposing
works.
Clause 8 amends the Water Industry Act 1994 to the same effect as
clause 3 by providing for the Victorian Civil and Administrative
Tribunal to make an order for interest by way of damages in
proceedings under the Water Industry Act 1994 and in doing so
that it may base the amount awarded on the interest rates fixed
under section 2 of the Penalty Interest Rates Act 1983 or any
lesser rate it considers appropriate.
Clause 9 amends the Water Industry Act 1994 to provide for an increase
in the penalty set out in section 78H for breach of a restriction or
prohibition under a drought response plan. Currently, the penalty
is 20 penalty units or 3 months imprisonment for a first offence
and 40 penalty units or 6 months imprisonment for a subsequent
offence. The increase will provide for a doubling of the financial
penalty to 40 penalty units for a first offence and to 80 penalty
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units for a subsequent offence. The maximum custodial sentence
will remain as currently provided for in the Act.
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An additional penalty not exceeding 5 penalty units will apply in
the case of a continuing contravention as is currently the case but
a cap of 20 penalty units will apply after service of notice of
contravention.
Clause 10 inserts a new Division into the Water Industry Act 1994 to
provide for a licensee who is the holder of a water licence or
water and sewerage licence to prepare and adopt a permanent
water saving plan. The provisions under the new Division are
similar to the amendments to the Water Act 1989 that require a
water authority to create a permanent water saving plan.
Clause 11 provides that an authorised officer of the holder of a water
licence or water and sewerage licence may bring proceedings
for an alleged breach of a restriction or prohibition under a
drought response plan and would be able to take action for
alleged breach under the new permanent water saving plan.
At present, unlike an officer of a water authority under the Water
Act 1989, these licensees are unable to bring proceedings in such
cases. The Victoria Police has been pursuing these cases when
required. However, the licensees gather the evidence and it is
appropriate that they also be able to pursue alleged breaches
through the courts.
Clause 12 repeals section 295(1)(g) of the Water Act 1989. Following an
amendment to the Act in 2002 repealing section 80(4), section
295(1)(g) no longer applies.
Clause 13 amends the Water Industry Act 1994 to provide for the
insertion a definition of the "Victorian Civil and Administrative
Tribunal" into section 3 and changes various references in that
Act to the "Administrative Appeals Tribunal" to the "Victorian
Civil and Administrative Tribunal". Sub-section (3) also changes
a reference from "the Office" to "the Commission" to reflect the
change from the Officer of Regulator-General to the Essential
Services Commission.
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