Untitled document
Water Amendment (Victorian Environmental Water Holder) Act 2010
No. 50 of 2010
table of provisions
Section Page
1Purpose
2Commencement
3Definitions
4New Part 3AA inserted
Part 3AA—Victorian Environmental Water Holder
Division 1—Establishment of the Water Holder
33DADefinitions
33DBVictorian Environmental Water Holder
Division 2—Objectives, functions and powers of the Water Holder
33DCObjectives of the Water Holder
33DDFunctions of the Water Holder
33DEPowers of the Water Holder
Division 3—Governance of the Water Holder
33DFConstitution of the Water Holder
33DGTerms and conditions of appointment
33DHRemoval of Commissioners
33DIActing Commissioners
33DJDeclaration of pecuniary interests
33DKPayment of Commissioners
33DLMeetings of the Water Holder
33DMStaff
33DNConsultants
33DOWater Holder Trust Account
33DPDelegation
33DQApplication of Public Administration Act 2004
33DRApplication of Financial Management Act 1994
Division 4—Accountability of the Water Holder
33DSMinisterial directions
33DTReporting requirements
33DURecording requirements
Division 5—Planning by the Water Holder
33DVPreparation of corporate plan
33DWVariation of corporate plan during operation of plan
33DXSeasonal watering plans
33DYSeasonal watering statements
33DZWater Holder may request information relating to
water season
Division 6—Ministerial rules relating to Water Holder
33DZAMinisterial rules relating to Water Holder
5Limited term transfers
6Assignment of water allocation
7Further assignment of water allocation
8Amendment of definition of Authority in relation to bulk entitlements
9Advertisement etc. of application
10Order granting entitlement
11Sections 46, 46A and 46B substituted
46Assignment of water allocation
46AFurther assignment of water allocation
46BOffence to give an assignment without Ministerial approval
46CMinisterial approval
46DTransfer of bulk entitlement
46EMinisterial approval for transfer
46FSale of bulk entitlement
46GEffect of transfer of bulk entitlement
12Section 47C substituted
47CApplication for conversion of licences or water shares
to bulk entitlements47CAMinister may convert licence or water share to bulk entitlement
47CBEffect of conversion
13Amendment of references to environment Minister
14Advertisement etc. of request
15Amendment of entitlement by the Minister
16Water allocations may be applied for other environmental entitlements
17Assignment of water allocation
18Further assignment of water allocation
19Ministerial approval
20Insertion of new sections to follow section 48O
48OATransfer of environmental entitlement
48OBMinisterial approval for transfer
48OCSale of environmental entitlement
48ODEffect of transfer of environmental entitlement
48OEApplication for conversion of licences or water shares
to environmental entitlements48OFMinister may convert licence or water share to environmental entitlement
48OGEffect of conversion
21Applications under the Division
22Repeal of certain register, delegation powers etc.
23Further offence for use of water in certain cases
24New section 64APAA inserted
64APAADefinition
25Power to register water uses
26Applications for water-use registration
27Section 64AS substituted
64ASChange of ownership of land specified in registration
28Functions of Authorities
29New sections 190 to 192A inserted
190Preparation of regional waterway strategies
191Approval of regional waterway strategies
192Variation of regional waterway strategies during operation of strategy
192ASeasonal watering proposals
30New section 197A inserted
197AMinisterial rules for regional waterway strategies and seasonal proposals
31New Schedule inserted
SCHEDULE 4—Transitional Arrangements Water Amendment (Victorian Environmental Water Holder) Act 2010
1Definition
2Bulk entitlements
3Environmental entitlements
4Take and use licences
5Water shares
6Amendment of entitlements
7Ministerial determination
32Repeal of amending Act
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EndnoteS
Water Amendment (Victorian Environmental Water Holder) Act 2010
No. 50 of 2010
[Assented to 24 August 2010]
The Parliament of Victoria enacts:
1Purpose
The main purpose of this Act is to amend the Water Act 1989 to—
(a)establish the Victorian Environmental Water Holder as a body corporate responsible for managing the State's environmental water holdings; and
(b)provide for the role of waterway managers in environmental water management; and
(c)otherwise improve the management of environmental water in the State; and
(d)make further provision as to rights and entitlements to water under that Act; and
(e)otherwise provide for matters under that Act.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 January 2012, it comes into operation on that day.
3Definitions
(1)In section 3(1) of the Water Act 1989 insert the following definitions—
"Commonwealth Environmental Water Holder means the Commonwealth Environmental Water Holder established under section 104 of the Water Act 2007 of the Commonwealth;
Victorian Environmental Water Holdings means—
(a)any environmental entitlements allocated to the Water Holder; and
(b)any interests in water shares held by the Water Holder; and
(c)any licences to take and use water under section 51 held by the Water Holder; and
(d)any other rights under this Act held by the Water Holder; and
(e)any agreements between the Water Holder and any other person to supply water to the Water Holder; and
(f)any bulk entitlement that is taken to be granted to the Water Holder by the operation of Schedule 4;
Water Holder means the Victorian Environmental Water Holder established under section 33DB(1);
Water Holdings means the Victorian Environmental Water Holdings;".
(2)After section 3(3) of the Water Act 1989 insert—
"(4)In the case of land specified in a water-use registration, occupier includes any person within the definition of occupier set out in section 64APAA.".
4New Part 3AA inserted
After Part 3 of the Water Act 1989 insert—
"Part 3AA—Victorian Environmental Water Holder
Division 1—Establishment of the Water Holder
33DADefinitions
(1)In this Part—
acting Commissioner means a person appointed to act as a Commissioner under section 33DI;
Chairperson means the Commissioner appointed as the Chairperson of the Water Holder under section 33DF(1)(a);
Commissioner means a person appointed as a Commissioner under section 33DF(1);
corporate plan means a plan made under section 33DV or varied under section 33DW;
Deputy Chairperson means the Commissioner appointed as the Deputy Chairperson of the Water Holder under section 33DF(1)(b);
public entity has the same meaning as in the Public Administration Act 2004;
seasonal watering plan means a plan made under section 33DX;
seasonal watering statement means a statement issued under section 33DY.
(2)A reference in sections 33DF(4), 33DJ, 33DK and 33DL to a Commissioner includes a reference to an acting Commissioner.
33DBVictorian Environmental Water Holder
(1)There is established a body corporate called the Victorian Environmental Water Holder.
(2)The Water Holder—
(a)has perpetual succession; and
(b)has an official seal; and
(c)may sue or be sued in its corporate name; and
(d)may acquire, hold and dispose of real and personal property; and
(e)may do and suffer all acts and things that a body corporate may by law do and suffer.
(3)All courts must take judicial notice of the Water Holder's official seal affixed to a document and, until the contrary is proved, must presume the seal was duly affixed.
(4)The official seal of the Water Holder must be kept in the custody that is directed by the Water Holder and must not be used except as authorised by the Water Holder.
Division 2—Objectives, functions and powers of the Water Holder
33DCObjectives of the Water Holder
The objectives of the Water Holder are to manage the Water Holdings for the purposes of—
(a)maintaining the environmental water reserve in accordance with the environmental water reserve objective; and
(b)improving the environmental values and health of water ecosystems, including their biodiversity, ecological functioning and water quality, and other uses that depend on environmental condition.
33DDFunctions of the Water Holder
The functions of the Water Holder are to do the following in accordance with the objectives of the Water Holder—
(a)apply and use water in the Water Holdings and otherwise exercise rights in the Water Holdings in accordance with this Act;
(b)acquire and purchase rights and entitlements for the Water Holdings and dispose of and otherwise deal in rights and entitlements in the Water Holdings in accordance with this Act;
(c)plan for the purposes of paragraphs (a) and (b);
(d)enter into any agreements for the purposes of paragraphs (a) and (b);
(e)enter into any agreements for the purposes of the co-ordination of the exercise of rights under any water right or entitlement held by another person, including the Commonwealth Environmental Water Holder;
(f)enter into any agreements with any person for the provision of works by that person to enable the efficient application or use of water in the Water Holdings.
33DEPowers of the Water Holder
The Water Holder has the power to do all things necessary or convenient to be done for, or in connection with, or incidental to, the performance of its functions, powers and duties.
Division 3—Governance of the Water Holder
33DFConstitution of the Water Holder
(1)The Water Holder consists of—
(a)one full-time or part-time Commissioner who is the Chairperson of the Water Holder; and
(b)at least two full-time or part-time Commissioners, one of whom is the Deputy Chairperson of the Water Holder; and
(c)any further full-time or part-time Commissioners—
appointed by the Governor in Council on the recommendation of the environment Minister.
(2)The environment Minister must not recommend a person for appointment under subsection (1) unless that person has knowledge of, or experience in, one or more of the following fields—
(a)environmental management;
(b)sustainable water management;
(c)economics;
(d)public administration.
(3)In addition to the requirement set out in subsection (2), the environment Minister must not recommend a person for appointment under subsection (1)(c) unless the environment Minister considers the appointment necessary to enable the Water Holder to perform its functions.
(4)An act or decision of the Water Holder is not invalid merely because of a defect or irregularity in the appointment of a Commissioner.
33DGTerms and conditions of appointment
(1)A Commissioner is appointed for the period, not exceeding 5 years, that is specified in his or her instrument of appointment.
(2)A Commissioner is subject to the terms and conditions specified in his or her instrument of appointment.
(3)A Commissioner is eligible for reappointment.
33DHRemoval of Commissioners
(1)The Governor in Council, on the recommendation of the environment Minister, may remove a Commissioner from office if the Commissioner has—
(a)refused, neglected or failed to carry out the duties of his or her office; or
(b)demonstrated inefficiency or misbehaviour in carrying out the duties of his or her office; or
(c)become an insolvent under administration; or
(d)not complied with any relevant rules made under Division 6; or
(e)been found guilty of an indictable offence.
(2)If a Commissioner is removed from office under subsection (1), the environment Minister must cause the reasons for that removal to be laid before each House of Parliament within 5 sitting days of that House after that removal.
33DIActing Commissioners
(1)The Governor in Council, on the recommendation of the environment Minister, may appoint a person to act as a Commissioner—
(a)during a vacancy in the office of a Commissioner; or
(b)for a period during which a Commissioner is unable to perform the functions of his or her office.
(2)An acting Commissioner is appointed for the period, not exceeding 6 months, specified in his or her instrument of appointment.
(3)An acting Commissioner is subject to the terms and conditions specified in his or her instrument of appointment.
(4)An acting Commissioner is eligible for reappointment.
(5)The Governor in Council, on the recommendation of the environment Minister, may remove an acting Commissioner from office at any time.
33DJDeclaration of pecuniary interests
(1)If a Commissioner has a direct or indirect pecuniary interest in a matter which he or she is considering or is about to consider in the course of performing his or her duties, the Commissioner must as soon as practicable after the Commissioner has become aware of the relevant facts declare the nature of that interest to the other Commissioners.
(2)Subsection (1) does not apply if the interest is as a result of the supply of goods or services that are available to members of the public on the same terms and conditions.
(3)If a Commissioner has made a declaration under this section, the Commissioner must not take any further part in any decision in relation to the matter, unless the environment Minister directs otherwise.
(4)An act or decision of the Water Holder is not invalid merely because of a failure to comply with this section.
33DKPayment of Commissioners
A Commissioner is entitled to be paid any remuneration and any travelling and other allowances that are fixed by the Governor in Council from time to time.
33DLMeetings of the Water Holder
(1)The Chairperson may convene as many meetings of the Water Holder as the Chairperson considers necessary.
(2)The Chairperson must preside at a meeting at which the Chairperson is present.
(3)If the Chairperson is absent, the Deputy Chairperson must preside at the meeting.
(4)If the Chairperson and Deputy Chairperson are absent, the Commissioners present must appoint a Commissioner to preside at the meeting.
(5)The quorum for a meeting is a majority of the Commissioners appointed for the time being.
(6)A question arising at a meeting is determined by a majority of the votes of the Commissioners present and voting on the question.
(7)The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes on any question, a second or casting vote.
(8)Subject to this Act, the Water Holder may regulate its own proceedings.
33DMStaff
(1)The Water Holder may employ any staff that are necessary for the Water Holder to perform its functions, powers or duties under this Act under Part 3 of the Public Administration Act 2004.
(2)The Water Holder may enter into agreements or arrangements for the use of the services of any staff employed under Part 3 of the Public Administration Act 2004 or by an Authority or other public entity.
33DNConsultants
The Water Holder may engage persons with suitable qualifications and experience as consultants on any terms and conditions the Water Holder considers appropriate.
33DOWater Holder Trust Account
(1)There is established in the Trust Fund an account known as the "Water Holder Trust Account".
(2)There may be paid into the Water Holder Trust Account the following—
(a)money donated to the Water Holder;
(b)money paid to the Water Holder by another person, including the Commonwealth Environmental Water Holder, pursuant to an agreement with that person;
(c)any other money received by, or on behalf of, the Water Holder in the performance of its functions, powers and duties.
(3)There must not be paid out of the Water Holder Trust Account any money except for—
(a)the purpose of meeting the objectives of the Water Holder; or
Note
The objectives of the Water Holder are set out in section 33DC.
(b)if the money was received by way of donation, a purpose that is consistent with the purpose for which the money was donated.
33DPDelegation
The Water Holder may delegate any of its functions, powers or duties, except this power of delegation or a prescribed function, power or duty, to—
(a)a member of staff employed under section 33DM; or
(b)a Commissioner; or
(c)an Authority that has a waterway management district; or
(d)any other person, or class of persons, approved by the environment Minister.
33DQApplication of Public Administration Act 2004
The Public Administration Act 2004 applies to the Water Holder as if the Water Holder were a public entity, but not a small entity, within the meaning of that Act.
33DRApplication of Financial Management Act 1994
The Financial Management Act 1994 applies to the Water Holder as if the Water Holder were a public body within the meaning of that Act.
Division 4—Accountability of the Water Holder
33DSMinisterial directions
(1)The environment Minister may give a written direction to the Water Holder in relation to the performance of its functions, powers or duties.
(2)A direction given under subsection (1) must not include a direction relating to—
(a)a particular application or use of water in the Water Holdings or other exercise of rights in the Water Holdings; or
(b)a particular acquisition or purchase of a right or entitlement for the Water Holdings or a particular disposal of or other dealing in a right or entitlement in the Water Holdings—
other than to ensure consistency with a corporate plan or with any relevant rules made under Division 6.
(3)The environment Minister must notify the Water Holder in writing of his or her intention to give a direction under subsection (1) at least 14 days before giving that direction.
(4)As soon as practicable after giving a direction under subsection (1), the environment Minister must publish in the Government Gazette notice of the direction, including a statement or summary of the contents of the direction.
(5)The Water Holder is required to include a statement or summary of the contents of any direction received under subsection (1) in its annual report.
33DTReporting requirements
The Water Holder must include in its annual report information as to the performance of its functions, powers and duties in that year in accordance with any relevant rules made under Division 6.
33DURecording requirements
The Water Holder must keep and maintain records to accurately account for the performance of its functions under section 33DD(a) and (b) in accordance with any relevant rules made under Division 6.
Division 5—Planning by the Water Holder
33DVPreparation of corporate plan
(1)The Water Holder must prepare a corporate plan for each financial year and submit it to the environment Minister at least 2 months before the start of each financial year.
(2)A corporate plan must include the following information in respect of the financial year to which the plan relates and in respect of each of the 3 subsequent financial years—
(a)the strategies and policies the Water Holder will carry out to achieve its objectives, and perform its functions;
(b)governance, funding and reporting arrangements the Water Holder expects to undertake for those strategies and policies;
(c)performance indicators the Water Holder intends to apply to the performance of its functions;
(d)any other information required to be included by any relevant rules made under Division 6.
(3)In preparing a corporate plan, the Water Holder must—
(a)comply with any procedural or consultative requirements under any relevant rules made under Division 6; and
(b)have regard to any matters required under any relevant rules made under Division 6.
(4)The environment Minister may direct the Water Holder in writing, within 2 months after a corporate plan is submitted under subsection (1), to vary the plan as the environment Minister thinks fit.
(5)The environment Minister must publish in the Government Gazette a direction given under subsection (4).
(6)The Water Holder must make a corporate plan publicly available at the office of the Water Holder or on its website.
33DWVariation of corporate plan during operation of plan
(1)A corporate plan may be varied after the start of the financial year to which the plan relates—
(a)at the direction of the environment Minister; or
(b)on the motion of the Water Holder.
(2)The environment Minister must publish in the Government Gazette a direction given under subsection (1)(a).
(3)Before varying a corporate plan under subsection (1)(b), the Water Holder must submit the proposed variation to the environment Minister.
(4)The environment Minister may agree to the proposed variation.
(5)If the Minister does not agree to the proposed variation, the environment Minister must so notify the Water Holder within 30 days of a submission being made under subsection (3).
33DXSeasonal watering plans
(1)The Water Holder must make a seasonal watering plan for the whole of the State for each water season.
(2)For the purposes of subsection (1), the Water Holder may make seasonal watering plans for different parts of the State.
(3)A seasonal watering plan must include the following information in respect of the water season to which the plan relates and in respect of the part of the State to which the plan relates, if the plan is made for a part of the State—
(a)a forecast of climatic conditions; and
(b)priorities for the performance of its functions under section 33DD(a) and (b); and
(c)any other information required to be included by any relevant rules made under Division 6.
(4)A seasonal watering plan may be varied by the Water Holder at any time.
(5)Before making or varying a seasonal watering plan, the Water Holder must—
(a)take into consideration any relevant seasonal proposals prepared by an Authority that has a waterway management district under section 192A; and
(b)ensure the plan is consistent with any requirements set out in a bulk entitlement or an environmental entitlement held by the Water Holder; and
(c)comply with any procedural or consultative requirements under any relevant rules made under Division 6; and
(d)have regard to any matters required under any relevant rules made under Division 6.
(6)The Water Holder must make a seasonal watering plan publicly available at the office of the Water Holder or on its website.
33DYSeasonal watering statements
(1)The Water Holder may issue a seasonal watering statement for any part of the State in respect of the whole or a part of a water season.
(2)A seasonal watering statement may authorise an Authority that has a waterway management district to apply or use water in the Water Holdings or otherwise exercise rights in the Water Holdings within the waterway management district of the Authority on behalf of the Water Holder.
(3)A seasonal watering statement must include, in respect of the part of the State and the water season to which the statement relates—
(a)the Authority that may apply or use water in the Water Holdings or otherwise exercise rights in the Water Holdings on behalf of the Water Holder; and
(b)in respect of water that is to be applied or used, the rights that are to be exercised under the rights or entitlements in the Water Holdings and any other rights in the Water Holdings that are to be exercised; and
(c)the purpose for which, the amounts of which and the circumstances in which water under rights and entitlements referred to in paragraph (b) is to be applied or used; and
(d)any other information required to be included by any relevant rules made under Division 6.
(4)A seasonal watering statement may be made at any time during the water season to which the statement relates.
(5)A seasonal watering statement must be consistent with a seasonal watering plan for the same water season to which the statement relates.
(6)Before making a seasonal watering statement the Water Holder must—
(a)ensure the statement is consistent with any requirements set out in a bulk entitlement or an environmental entitlement held by the Water Holder; and
(b)comply with any procedural or consultative requirements under any relevant rules made under Division 6; and
(c)have regard to any matters required under any relevant rules made under Division 6.
(7)In the event of any inconsistency between seasonal watering statements, the most recent statement is to prevail to the extent of that inconsistency.
(8)The Water Holder must make a seasonal watering statement publicly available at the office of the Water Holder or on its website.
33DZWater Holder may request information relating to water season
The Water Holder, by giving written notice to an Authority that has a waterway management district, may require the Authority to give the Water Holder any information relating to the application or use of water in the Water Holdings or other exercise of rights in the Water Holdings within the waterway management district of the Authority in accordance with a seasonal watering statement.
Division 6—Ministerial rules relating to Water Holder
33DZAMinisterial rules relating to Water Holder
(1)The environment Minister, by Order published in the Government Gazette, may make rules in relation to—
(a)information for the purposes of reporting requirements under section 33DT;
(b)information for the purposes of recording requirements under 33DU;
(c)procedural and consultative requirements relating to the preparation of corporate plans, seasonal watering plans and seasonal watering statements;
(d)matters that the Water Holder must have regard to when preparing corporate plans, seasonal watering plans and seasonal watering statements;
(e)information that must be included in corporate plans, seasonal watering plans and seasonal watering statements;
(f)consultative requirements to be undertaken by the Water Holder with communities and stakeholders;
(g)requirements as to the reporting by the Water Holder to the environment Minister in relation to the performance of its functions, powers and duties;
(h)information that must be made publicly available by the Water Holder relating to the performance of its functions, powers or duties or by Authorities that have waterway management districts relating to the application or use of water in the Water Holdings in the waterway management districts of those Authorities, being information that will not disclose the identity of any other person;
(i)the acquisition, purchase and disposal of, and other dealing in, rights and entitlements in the Water Holdings in accordance with this Act;
(j)requirements as to how the Water Holder is to make decisions as to the priority of addressing seasonal watering proposals prepared under section 192A by Authorities that have waterway management districts.
(2)An Order published under subsection (1) must include the place at which a copy of the rules may be inspected.
(3)The environment Minister must not make any rules in relation to any matter for which the environment Minister may not give a written direction under section 33DS.
(4)The environment Minister must not make, amend or vary any rules unless the environment Minister has given the Water Holder and Authorities that have waterway management districts notice in writing of the proposed rule, amendment or variation, and has considered any written submission made by the Water Holder or an Authority that has a waterway management district in response to that notice.
(5)The Water Holder and Authorities that have waterway management districts must comply with any relevant rules made under this section.
__________________".
5Limited term transfers
In section 33T(1) of the Water Act 1989, after "period to" insert "the Water Holder, or to".
6Assignment of water allocation
(1)In section 33U(1)(e) of the Water Act 1989, for "environment Minister on behalf of the Crown" substitute "Water Holder".
(2)In section 33U(1A)(e) of the Water Act 1989, for "environment Minister on behalf of the Crown" substitute "Water Holder".
7Further assignment of water allocation
In section 33V(1)(e) of the Water Act 1989, for "environment Minister, on behalf of the Crown" substitute "Water Holder".
8Amendment of definition of Authority in relation to bulk entitlements
(1)After section 34(1) of the Water Act 1989 insert—
"(1A)In this Division, Authority, in addition to any other meaning set out in subsection (1), also means the Water Holder to the extent of any bulk entitlement referred to in paragraph (f) of the definition of Victorian Environmental Water Holdings.".
(2)In section 34(5) of the Water Act 1989, for ", 47(4)(b), 47C(10)(b)(i) and (ii) and 64C(1)(b)(i) and (ii)" substitute "and 47(4)(b)".
9Advertisement etc. of application
Section 38(1)(c) of the Water Act 1989 is repealed.
10Order granting entitlement
In section 43(i) of the Water Act 1989, omit "or Governor in Council (as the case requires)".
11Sections 46, 46A and 46B substituted
For sections 46, 46A and 46B of the Water Act 1989 substitute—
"46 Assignment of water allocation
(1)An Authority may, by instrument, assign the whole or a part of a water allocation available under a bulk entitlement held by the Authority under this Division (at the time at which the assignment is made) to—
(a)a person who is the owner or occupier of land specified in a water-use licence or water-use registration; or
(b)the holder of a licence under section 51; or
(c)a person who is the owner or occupier of land in another State or a Territory of the Commonwealth; or
(d)a person who represents the Crown in the right of another State or a Territory of the Commonwealth; or
(e)a person who is the holder of an environmental entitlement; or
(f)a person who is the holder of a bulk entitlement.
(2)The Authority must not assign a water allocation under subsection (1) unless the Authority has first obtained the approval of—
(a)the Minister; and
(b)where the case so requires, any other Authority whose works will be used to deliver the water.
(3)An assignment under this section entitles the holder of the assignment to take and, subject to any other requirements of this Act, use water under the water allocation under the bulk entitlement from the date specified in the assignment.
46AFurther assignment of water allocation
(1)A person to whom the whole or a part of a water allocation has been assigned under section 46, or under this section, may assign the whole of the assigned allocation to another person to whom section 46(1)(a), (b), (c), (d), (e) or (f) applies.
(2)An assignment under this section entitles the holder of the assignment to take and use water under the water allocation under the bulk entitlement from the date specified in the assignment.
46BOffence to give an assignment without Ministerial approval
(1)A generation company, within the meaning of the Electricity Industry Act 2000, must not assign a water allocation under section 46 unless the Minister has approved the assignment.
Penalty:60 penalty units.
(2)A person to whom the whole or a part of a bulk entitlement has been assigned under section 46 or 46A, must not further assign the water allocation under section 46A unless the Minister has approved the assignment.
Penalty:60 penalty units.
46CMinisterial approval
(1)The Minister may—
(a)on a request from the Authority, approve the assigning of a water allocation for the purposes of section 46; or
(b)on an application by a person, approve the assigning of a water allocation for the purposes of section 46A.
(2)The Minister, in deciding whether or not to approve an assignment under subsection (1), must have regard to—
(a)any adverse effect that the assignment is likely to have on—
(i)other persons that take water from the same water system; and
(ii)on the maintenance of the environmental water reserve in accordance with the environmental water reserve objective;
(b)whether the assignment is in accordance with any relevant rules made by the Minister under section 47E;
(c)any other prescribed reason.
(3)Any request or application to the Minister to which subsection (1) applies must—
(a)be made in a form and manner approved by the Minister; and
(b)contain any information that is required by the Minister; and
(c)be accompanied by the prescribed fee, if any for the application.
46DTransfer of bulk entitlement
(1)An Authority that holds a bulk entitlement under this Division may, by instrument, transfer the bulk entitlement, in whole or in part, to any person.
(2)An Authority must not transfer a bulk entitlement under subsection (1) unless the Authority has first applied for and obtained the approval of the Minister.
(3)An application to the Minister under subsection (2) must—
(a)be made in a form and manner approved by the Minister; and
(b)contain any information that is required by the Minister; and
(c)be accompanied by the prescribed fee, if any, for the application.
46EMinisterial approval for transfer
(1)Subject to this section, the Minister, on receiving an application under section 46D(2), may approve a transfer under section 46D.
(2)The Minister must not approve a transfer of the whole or a part of a bulk entitlement held by the Water Holder unless the Minister has first obtained the approval of the environment Minister.
(3)The Minister—
(a)must not approve the transfer if he or she is of the opinion that—
(i)the transfer is likely to have an adverse effect on the maintenance of the environmental water reserve in accordance with the environmental water reserve objective; or
(ii)the entitlement or part to be transferred is not surplus to the needs of the Authority; or
(b)in any other case, the Minister, in considering whether or not to approve the transfer, must have regard to—
(i)any of the matters mentioned in section 40(1); and
(ii)any relevant rules made under section 47E.
(4)In considering whether or not to approve the transfer the Minister must give effect to an approved management plan for any relevant water supply protection area.
(5)The Minister must not deal with a transfer in a way that is inconsistent with anything specified in the Order granting the entitlement under section 43(d).
46FSale of bulk entitlement
(1)For the purposes of transferring a bulk entitlement under section 46D, the Authority has the power to sell the whole or part of the bulk entitlement—
(a)at auction; or
(b)by inviting tenders; or
(c)in any other manner it thinks fit.
(2)If an Authority decides to sell the whole or part of a bulk entitlement under this section, the Authority must cause a notice to be published in the Government Gazette and in a newspaper circulating generally in the area concerned—
(a)declaring that the bulk entitlement, or a part of the bulk entitlement, is available for purchase; and
(b)giving details of the method by which the bulk entitlement or part is to be sold.
46GEffect of transfer of bulk entitlement
(1)For the purposes of the transfer of a bulk entitlement or a part of a bulk entitlement under this Division, the Minister, by notice published in the Government Gazette—
(a)must determine the right or entitlement under this Act that the transferred entitlement is to become; and
(b)may determine any conditions that are to apply to the specified right or entitlement.
(2)The Minister must not determine a right or entitlement under subsection (1) that the person to whom it is being transferred is not otherwise capable of holding.
(3)On the publication of the notice under subsection (1), the entitlement or part that has been transferred becomes the right or entitlement determined by the Minister and is taken to have been granted in accordance with this Act to the person to whom the entitlement has been transferred.
(4)On the publication of the notice under subsection (1), in the case of the transfer of a part of a bulk entitlement, the transfer has, in respect of the bulk entitlement from which it is to be transferred, the effect that the bulk entitlement is taken to be varied in accordance with this Act to remove that part of the entitlement that is transferred.
(5)In making a determination as to a right or entitlement under this section, the Minister is not required to comply with any other provisions of this Act.".
12Section 47C substituted
For section 47C of the Water Act 1989 substitute—
"47C Application for conversion of licences or water shares to bulk entitlements
(1)An Authority that holds a water share or licence under section 51 may apply to the Minister to have the water share or licence converted to a bulk entitlement under this Division.
(2)An Authority that holds a water share or licence under section 51 must apply to the Minister to have the water share or licence converted to a bulk entitlement under this Division, if requested to do so by the Minister.
(3)An application to the Minister under this section must—
(a)be made in a form and manner approved by the Minister; and
(b)contain any information that is required by the Minister; and
(c)be accompanied by the prescribed fee, if any for the application.
47CAMinister may convert licence or water share to bulk entitlement
(1)The Minister may convert a water share or licence under section 51 that is held by an Authority to a bulk entitlement under this Division held by that Authority, on receiving an application from the Authority under section 47C.
(2)In considering an application under section 47C, the Minister must have regard to any matter referred to in section 40(1)(a) to (o).
47CBEffect of conversion
(1)On determining that a licence under section 51 or water share is converted to a bulk entitlement, the Minister must, by notice published in the Government Gazette—
(a)in the case of a licence under section 51, cancel the licence and either—
(i)amend an existing bulk entitlement to add the amount of water that may be taken and used in accordance with the licence; or
(ii)create a new bulk entitlement to the amount of water that may be taken and used in accordance with the licence; or
(b)in the case of a water share, cancel the water share and either—
(i)amend the bulk entitlement to add the maximum volume of the water share; or
(ii)create a new bulk entitlement with the maximum volume of the water share.
(2)The Minister may impose any terms and conditions on the bulk entitlement created or amended under subsection (1) that the Minister thinks fit.
(3)In creating or amending bulk entitlement under this section, the Minister is not required to comply with any other provisions of this Act.".
13Amendment of references to environment Minister
(1)In section 48B(1) of the Water Act 1989, for "environment Minister, on behalf of the Crown" substitute "Water Holder".
(2)In section 48C(1)(b) of the Water Act 1989, for "environment Minister" substitute "Water Holder".
14Advertisement etc. of request
In section 48D(1)(b) of the Water Act 1989, for "environment Minister" substitute "Water Holder".
15Amendment of entitlement by the Minister
(1)In section 48K(1) of the Water Act 1989, for "environment Minister" substitute "Water Holder".
(2)In section 48K(2) of the Water Act 1989—
(a)for "environment Minister" substitute "Water Holder"; and
(b)for "he or she" substitute "the Water Holder".
16Water allocations may be applied for other environmental entitlements
In section 48KA of the Water Act 1989, for "environment Minister" substitute "Water Holder".
17Assignment of water allocation
(1)In section 48L(1) of the Water Act 1989—
(a)for "environment Minister" substitute "Water Holder";
(b)after paragraph (a) insert—
"(ab)a person who is the holder of a licence under section 51; or".
(2)For section 48L(1A) of the Water Act 1989 substitute—
"(1A)The Water Holder must not assign a water allocation under subsection (1) unless the Water Holder has first obtained the approval of—
(a)the Minister; and
(b)any Authority whose works will be used to deliver the water.".
(3)For section 48L(2) of the Water Act 1989 substitute—
"(2)The Minister, in approving an assignment under subsection (1), must have regard to—
(a)any adverse effect that the assignment is likely to have on—
(i)other persons that take water from the same water system; and
(ii)the maintenance of the environmental water reserve in accordance with the environmental water reserve objective; or
(b)whether the assignment is in accordance with any relevant rules made under section 48P.".
18Further assignment of water allocation
In section 48M of the Water Act 1989, for "to another person who is the owner or occupier of land specified in a water-use licence or water-use registration" substitute "to another person to whom section 48L(1)(a), (b), (c) or (d) applies".
19Ministerial approval
In section 48O(1)(a) of the Water Act 1989, for "environment Minister" substitute "Water Holder".
20Insertion of new sections to follow section 48O
After section 48O of the Water Act 1989 insert—
"48OA Transfer of environmental entitlement
(1)The Water Holder may, by instrument, apply to transfer the whole or a part of an environmental entitlement, to any person.
(2)The Water Holder must not transfer an environmental entitlement under subsection (1) unless the Water Holder has first applied for and obtained the approval of the Minister.
48OBMinisterial approval for transfer
(1)Subject to this section, the Minister may, on application by the Water Holder under section 48OA(2), approve a transfer under that section.
(2)The Minister must not approve a transfer of the whole or a part of an environmental entitlement under this section unless the Minister has first obtained the approval of the environment Minister.
(3)The Minister, in considering whether or not to approve the transfer must have regard to—
(a)any of the matters mentioned in section 40(1); and
(b)whether the transfer is in accordance with any relevant rules made under section 48P.
(4)In considering whether or not to approve the transfer the Minister must give effect to an approved management plan for any relevant water supply protection area.
(5)The Minister must not deal with a transfer in a way that is inconsistent with anything specified in the Order allocating the entitlement under this Division.
48OCSale of environmental entitlement
(1)For the purposes of transferring an environmental entitlement under section 48OA, the Water Holder has the power to sell the whole or part of the entitlement—
(a)at auction; or
(b)by inviting tenders; or
(c)in any other manner it thinks fit.
(2)If the Water Holder decides to sell the whole or part of the entitlement under this section, the Water Holder must cause a notice to be published in the Government Gazette and in a newspaper circulating generally in the area concerned—
(a)declaring that the environmental entitlement, or a part of the environmental entitlement, is available for purchase; and
(b)giving details of the method by which the environmental entitlement or part is to be sold.
48ODEffect of transfer of environmental entitlement
(1)For the purposes of the transfer of an environmental entitlement or a part of an environmental entitlement under this Division, the Minister, by notice published in the Government Gazette—
(a)must determine the right or entitlement under this Act that the transferred entitlement is to become; and
(b)may determine any conditions that are to apply to the specified right or entitlement.
(2)The Minister must not determine a right or entitlement under subsection (1) that the person to whom it is being transferred is not otherwise capable of holding.
(3)On the publication of the notice under subsection (1), the entitlement or part that has been transferred becomes the right or entitlement determined by the Minister and is taken to have been granted in accordance with this Act to the person to whom the entitlement has been transferred.
(4)On the publication of the notice under subsection (1), in the case of the transfer of a part of an environmental entitlement, the transfer has, in respect of the environmental entitlement from which it is to be transferred, the effect that the environmental entitlement is taken to be varied in accordance with this Act to remove that part of the entitlement that is transferred.
(5)In making a determination of a right or entitlement under this section, the Minister is not required to comply with any other provisions of this Act.
48OEApplication for conversion of licences or water shares to environmental entitlements
(1)If the Water Holder holds a water share or licence under section 51, the Water Holder may apply to the Minister to have the water share or licence converted to an environmental entitlement under this Division.
(2)The Water Holder must apply to the Minister to have a water share or licence under section 51 converted to an environmental entitlement under this Division, if requested to do so by the Minister.
48OFMinister may convert licence or water share to environmental entitlement
(1)Subject to this section, the Minister may convert a water share or licence under section 51 that is held by the Water Holder to an environmental entitlement under this Division on receiving an application from the Water Holder under section 48OE.
(2)In considering an application for conversion under section 48OE, the Minister may have regard to any matter referred to in section 40(1)(a) to (o).
48OGEffect of conversion
(1)On determining that a licence under section 51 or water share is converted to an environmental entitlement, the Minister must, by notice published in the Government Gazette—
(a)in the case of a licence under section 51, cancel the licence and either—
(i)amend an existing environmental entitlement to add the amount of water that may be taken and used in accordance with the licence; or
(ii)create a new environmental entitlement to the amount of water that may be taken and used in accordance with the licence; or
(b)in the case of a water share, cancel the water share and either—
(i)amend the environmental entitlement to add the maximum volume of the water share; or
(ii)create a environmental bulk entitlement with the maximum volume of the water share.
(2)The Minister may impose any terms and conditions on the environmental entitlement created or amended under subsection (1) that the Minister thinks fit.
(3)In creating or amending an environmental entitlement under this section, the Minister is not required to comply with any other provisions of this Act.".
21Applications under the Division
In section 48PA of the Water Act 1989—
(a)after "An application" insert "to the Minister";
(b)after paragraph (a) insert—
"(ab)must contain any information that is required by the Minister; and".
22Repeal of certain register, delegation powers etc.
(1)Section 48G(b) of the Water Act 1989 is repealed.
(2)Sections 48PB and 48Q of the Water Act 1989 are repealed.
23Further offence for use of water in certain cases
(1)For section 64K(1) of the Water Act 1989 substitute—
"(1)A person must not use water that is authorised to be taken under Part 3A on land specified in a water-use licence or water-use registration unless—
(a)the water is being taken under a water share that is associated with the land specified in the water-use licence or water-use registration; or
(b)the Minister has approved the use of the water on that land.
Penalty:60 penalty units.
(1A)A person must not use water that is authorised to be taken under the assignment of an allocation under section 46, 46A, 48L or 48M on land specified in a water-use licence or water-use registration unless the Minister has approved the use of the water on that land.
Penalty:60 penalty units.
(1B)Subsection (1A) does not apply to any use of water by the Water Holder under an assignment of an allocation under section 46, 46A, 48L or 48M.".
(2)In section 64K(2) and (4) of the Water Act 1989, after "subsection (1)" (wherever occurring) insert "and subsection (1A)".
(3)In section 64K(5) of the Water Act 1989, after "subsection (1)" insert "or subsection (1A)".
24New section 64APAA inserted
Before section 64AP of the Water Act 1989 insert—
"64APAA Definition
In this Division—
occupier, in relation to land, means a prescribed person, or a person of a prescribed class of person, who has a right of access to the land or responsibility for the provision of a service to the land.".
25Power to register water uses
In section 64AP of the Water Act 1989—
(a)after "owner" insert "or occupier"; and
(b)after "owned" insert "or occupied".
26Applications for water-use registration
In section 64AR(1) of the Water Act 1989, after "owner" insert "or occupier".
27Section 64AS substituted
For section 64AS of the Water Act 1989 substitute—
"64AS Change of ownership of land specified in registration
(1)If a person who is the holder of a water-use registration is the owner of the land specified in the registration and that person transfers his or her ownership of the whole of the land so specified to another person, that person is taken to be the holder of the water-use registration.
(2)If a person who is the holder of a water-use registration is the owner of the land specified in the registration and that person transfers his or her ownership of part only of the land so specified to another person, the registration is taken to be cancelled on the day on which the transfer of ownership takes place.".
28Functions of Authorities
After section 189(1) of the Water Act 1989 insert—
"(1A)In addition to the functions under subsection (1), an Authority that has a waterway management district has the following functions—
(a)to identify and plan for State and local community needs relating to the application or use of water in the Water Holdings or other exercise of rights in the Water Holdings within the waterway management district of the Authority; and
(b)to apply or use water in the Water Holdings or otherwise exercise rights in the Water Holdings within the waterway management district of the Authority in accordance with any relevant seasonal watering statement.".
29New sections 190 to 192A inserted
After section 189 of the Water Act 1989 insert—
"190 Preparation of regional waterway strategies
(1)For the purposes of performing its functions under section 189(1) and (1A), an Authority that has a waterway management district must prepare a regional waterway strategy for its waterway management district and submit it to the environment Minister and the Minister administering this Act for approval.
(2)A regional waterway strategy must include the following information in respect of the waterway management district to which the strategy relates—
(a)plans and priorities for performing the Authority's functions;
(b)a program of actions for implementing those plans and priorities;
(c)any other information required to be included by any relevant rules made under section 197A.
(3)In preparing a regional waterway strategy, an Authority must—
(a)take into account any relevant strategy for river health or sustainable water strategy prepared under Part 3; and
(b)take into account any relevant strategy or statement of policy or plan prepared under this Act, the Catchment and Land Protection Act 1994, the Flora and Fauna Guarantee Act 1988, the Heritage Rivers Act 1992, the Planningand Environment Act 1987 and the Environment Protection Act 1970; and
(c)comply with any procedural or consultative requirements under any relevant rules made under section 197A.
(4)In preparing a regional waterway strategy, the Authority may have regard to the aesthetic, recreational and cultural values of waterways within its waterway management district.
(5)The environment Minister or the Minister administering this Act may direct the Authority in writing, before the regional waterway strategy is approved, to vary the plan as the environment Minister or the Minister administering this Act thinks fit.
191Approval of regional waterway strategies
The environment Minister and the Minister administering this Act may approve a regional waterway strategy submitted under section 190 and notify the Authority in writing of its decision.
192Variation of regional waterway strategies during operation of strategy
(1)A regional waterway strategy may be varied after it has been approved under section 191—
(a)at the direction of the environment Minister or the Minister administering this Act; or
(b)on the motion of the Authority.
(2)Before varying a regional waterway strategy under subsection (1)(b), an Authority must—
(a)comply with any procedural or consultative requirements under any relevant rules made under section 197A; and
(b)submit the proposed variation to the environment Minister and the Minister administering this Act.
(3)The environment Minister and the Minister administering this Act must decide whether or not to agree to the proposed variation within 60 days of a submission being made under subsection (2) and notify the Authority in writing of its decision.
192ASeasonal watering proposals
(1)An Authority that has a waterway management district must prepare, for each water season, seasonal proposals for the application or use of water in the Water Holdings or other exercise of rights in the Water Holdings in that water season within its waterway management district.
(2)A proposal prepared by an Authority under subsection (1) must—
(a)be consistent with the Authority's regional waterway strategy approved under section 191; and
(b)comply with any procedural or consultative requirements under any relevant rules made under section 197A.".
30New section 197A inserted
After section 197 of the Water Act 1989 insert—
"197A Ministerial rules for regional waterway strategies and seasonal proposals
(1)The environment Minister, by Order published in the Government Gazette, may make rules in relation to—
(a)procedural and consultative requirements relating to the preparation of regional waterway strategies under section 190;
(b)matters that must be included in regional waterway strategies prepared under section 190;
(c)requirements as to the public availability of regional waterway strategies approved under section 191;
(d)procedural and consultative requirements related to the preparation of seasonal watering proposals under section 192A.
(2)An Order published under subsection (1) must include the place at which a copy of the Ministerial rules may be inspected.
(3)The environment Minister must not make, amend or vary any rules unless the environment Minister has given Authorities that have waterway management districts notice in writing of the proposed rule, amendment or variation, and has considered any written submission made by an Authority that has a waterway management district in response to that notice.".
31New Schedule inserted
After Schedule 3 to the Water Act 1989 insert—
"SCHEDULE 4
Transitional Arrangements Water Amendment (Victorian Environmental Water Holder) Act 2010
1Definition
In this Schedule—
environmental water holder commencement means the commencement of section 4 of the Water Amendment (Victorian Environmental Water Holder) Act 2010;
transferred environmental bulk entitlement means a bulk entitlement to water granted to the environment Minister and in force immediately before the environmental water holder commencement, that is specified in a determination made by the Minister under clause 7;
transferred environmental entitlement means an environmental entitlement allocated to the environment Minister and in force immediately before the environmental water holder commencement, that is specified in a determination made by the Minister under clause 7;
transferred take and use licence means a licence under section 51 issued to the environment Minister and in force immediately before the environmental water holder commencement, that is specified in a determination made by the Minister under clause 7;
transferred water share means a water share granted to the environment Minister and in force immediately before the environmental water holder commencement, that is specified in a determination made by the Minister under clause 7.
2Bulk entitlements
On the environmental water holder commencement, a transferred environmental bulk entitlement is taken to be a bulk entitlement to water granted to the Water Holder under this Act.
3Environmental entitlements
On the environmental water holder commencement, a transferred environmental entitlement is taken to be an environmental entitlement allocated to the Water Holder under section 48B(1).
4Take and use licences
On the environmental water holder commencement, a transferred take and use licence is taken to be a licence issued under section 51 to the Water Holder.
5Water shares
On the environmental water holder commencement, a transferred water share is taken to be a water share granted to the Water Holder under Part 3A.
6Amendment of entitlements
(1)The Minister, by notice in writing, may make any amendments to a bulk entitlement or environmental entitlement that are necessary as a consequence of the environmental water holder commencement.
(2)A notice under this clause must be made before the environmental water holder commencement.
(3)A notice of the making of a notice under this clause must be published in the Government Gazette before or on the environmental water holder commencement.
(4)A copy of a notice under this section must be given to the holder of the bulk entitlement or environmental entitlement before or on the environmental water holder commencement.
7Ministerial determination
(1)The Minister, by determination in writing, may specify any environmental entitlements, bulk entitlements, licences issued under section 51 or water shares held by the environment Minister that are to be transferred to the Water Holder.
(2)A determination under this clause must be made before the environmental water holder commencement.
(3)A notice of the making of a determination under this clause must be published in the Government Gazette before or on the environmental water holder commencement.
__________________".
32Repeal of amending Act
This Act is repealed on 1 January 2013.
Note
The repeal of this Act does 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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EndnoteS
Minister's second reading speech—
Legislative Assembly: 26 May 2010
Legislative Council: 24 June 2010
The long title for the Bill for this Act was "A Bill for an Act to amend the Water Act 1989 to establish the Victorian Environmental Water Holder as a body corporate responsible for managing the environmental water holdings of the State and for other purposes."
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