Untitled document
Water Amendment (Entitlements) Act 2010
No. 32 of 2010
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendments to the Water Act 1989
3Definitions
4Private rights to water
5Authority rights to water
6New section 33AAD inserted
33AADConditions on certain qualifications
7Nature of water shares
8Transfer of ownership of water share
9Effect of transfer of limited term transfer
10Assignment of water allocation
11Further assignment of water allocation
12Ministerial approval for transfers and assignments of water shares
13Application of limited term transfer to division of water share
14Water allocations for water shares
15Section 33AD substituted
33ADDeclaration for taking of water allocation under water share in subsequent water season
16Application for determination of cessation as associated water share
17Effect of death of mortgagee
18Definitions in Division 1 of Part 4
19New sections inserted after section 34
34AGrant of bulk entitlement
34BAuthorisation of entitlement
20Conversion of pre-existing entitlements
21Application for bulk entitlement
22Repeal of referral of bulk entitlement to Governor in Council
23Advertisement of application
24Appointment of panel
25Matters to be taken into account in determining application
26Deferral of applications for bulk entitlements
27Determination of application for bulk entitlement
28Order granting bulk entitlement
29Amendment of bulk entitlement by Order
30Section 45 substituted
45Minor amendment of bulk entitlement by notice
31Transfers or assignments of bulk entitlements
32Transfers or assignments of bulk entitlements to irrigators
33Assignments of water allocations to persons outside Victoria
34Compliance with terms of bulk entitlement
35Conversion of licences, water shares or water rights to bulk entitlements
36Minister may sell unallocated water
37New section inserted after section 47D
47DADeclaration for taking of water allocation under bulk entitlement in subsequent water season
38Repeal of redundant requirement to keep register
39Authorisation of entitlement
40New section inserted after section 48M
48MADeclaration for taking of water allocation under environmental entitlement in subsequent water season
41Power of environment Minister to delegate
42Amendment of licence on motion of Minister
43New sections inserted after section 59
59AAmendment of licence issued under section 51 on application of licence holder
59BProcedure applying to application
59CMinisterial consideration of application
44New section 62A inserted
62ADeclaration for taking of water under a licence in subsequent water season
45Review of decisions
46Repeal of provision as to periodic amendment of bulk
entitlement47Seasonal determinations
48Notification of determination
49Notification of determination as to standard water use
conditions50Variation of conditions of water-use applications
51Responsibilities for water register
52Form and manner of keeping water register
53Disclosure of information
54New Division 1A of Part 5A inserted
Division 1A—Minister's functions
84EAFunctions of Minister as to water register
55Registrar's functions
56Registrar's power of delegation
57Recording of transfers
58Substitution of section 84K
84KRecording of legal personal representatives
59Substitution of section 84L
84LRecording of survivor of joint ownership or holding
60Priority of recordings
61Information available from water register
62Consideration for transfer
63Giving of notices
64Corporate plans of water corporations
65Application of proceeds of sale of water share
66Sale or transfer of water share cancels encumbrances
67Power to incorporate documents in certain instruments
68Minister's power of delegation
69Power of Minister to give directions
70Regulation making powers
71Repeal of spent provisions
72Repeal of savings and transitional provisions
73Insertion of new section 334
334Certificate as to land taken over by another body
74Recording of discharge of mortgage
75Section 33AV(4) not to apply to converted life tenancies
76Dealings in unconfirmed water shares
77Amendments to the Water Act 1989 in the Schedule
Part 3—Amendments to the Residential Tenancies Act 1997
78Amendment of the definition section in the Residential Tenancies Act 1997
79Substitution of references to A rating in Residential Tenancies Act 1997
Part 4—Repeal
80Repeal of Act
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SCHEDULE—Minor and Consequential Amendments to the Water Act 1989
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Endnotes
Water Amendment (Entitlements) Act 2010
No. 32 of 2010
[Assented to 8 June 2010]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Water Act 1989—
(i)to make further provision as to rights to water in publicly accessible waterways; and
(ii)to make provision as to the assignment of water allocations under bulk entitlements and make other amendments to the provisions as to bulk entitlements; and
(iii)to alter the meaning of water allocation; and
(iv)to provide for various matters relating to environmental entitlements; and
(v)to provide for various matters relating to the provisions for water shares and the water register; and
(vi)to provide for other minor matters relating to the operation of the Act; and
(b)to amend the Residential Tenancies Act 1997, to make further provision for rating standards for water appliances in premises to which the Act applies.
2Commencement
(1)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 2011, it comes into operation on that day.
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Part 2—Amendments to the Water Act 1989
3Definitions
(1)For the definition of bulk entitlement in section 3(1) of the Water Act 1989 substitute—
"bulk entitlement means an entitlement granted under Division 1 of Part 4;".
(2)For the definition of person in section 3(1) of the Water Act 1989 substitute—
"person—
(a)in Part 3A, Division 1A of Part 4, Part 4B, Part 5A and Schedule 12A, means an individual or an incorporated body;
(b)in any other part of the Act, means an individual, a body or an association (incorporated or unincorporated) or a partnership;".
(3)For the definition of water allocation in section 3(1) of the Water Act 1989 substitute—
"water allocation—
(a)in relation to an environmental entitlement means—
(i)the volume of water determined under a seasonal determination to be available for the entitlement; or
(ii)if no seasonal determination is made for the entitlement, the water that is available to be taken in any water season, under the terms of the entitlement; or
(b)in relation to a bulk entitlement means—
(i)the volume of water determined under a seasonal determination to be available for the entitlement; or
(ii)if no seasonal determination is made for the entitlement, the water that is available to be taken in any water season, under the terms of the entitlement; or
(c)in relation to a water share, means the amount of water allocated to the water share at any particular time, in accordance with Division 7 of Part 3A;".
4Private rights to water
For section 8(3) of the Water Act 1989 substitute—
"(3)A person has the right to use water taken by that person from a waterway under subsection (1)(a), if the water is being used at the place at which it is taken.
(3A)A person has the right to use water taken by that person from a waterway under subsection (1)(b), (c) or (d).
(3B)A person has the right to use water taken by that person from a bore under subsection (1).
(3C)A person has the right to use, while it is within the waterway or bore, water which that person has the right to take under subsection (1).".
5Authority rights to water
(1)For section 9(1)(a) of the Water Act 1989 substitute—
"(a)under a bulk entitlement; or".
(2)For section 9(2)(b) of the Water Act 1989 substitute—
"(b)in the case of a generation company within the meaning of the Electricity Industry Act 2000, for any purpose connected with the exercise of its functions or powers;".
(3)Sections 9(2)(c) and 9(2)(e) of the Water Act 1989 are repealed.
(4)In section 9(2)(d) of the Water Act 1989—
(a)for "paragraph (e) or (f)" substitute "paragraph (d)";
(b)for "public purpose;" substitute "public purpose.".
6New section 33AAD inserted
After section 33AAC of the Water Act 1989 insert—
"33AAD Conditions on certain qualifications
(1)If a bulk entitlement has been qualified under this Division, the Minister may impose conditions or duties as to one or more of the following matters on the holder of the bulk entitlement—
(a)monitoring the impacts of the qualification and advising the Minister of the outcomes of the monitoring;
(b)requiring any program of works or actions to be carried out by the holder of the bulk entitlement for the purpose of mitigating any adverse effect or the risk of any adverse effect—
(i)on the maintenance of the environmental water reserve in accordance with the environmental water reserve objective; or
(ii)on the holder of any other entitlement, licence or right under this Act;
(c)requiring payments to be made to other Authorities for the purposes specified in the notice of qualification under section 33AAC, including conditions as to—
(i)if any program of works is carried out by another Authority for a purpose specified in paragraph (b), payments that are to be made to reimburse the cost of the carrying out of the program; and
(ii)the manner in which any payments are to be made;
(d)operating arrangements that are required as a result of the qualification.
(2)A condition or duty imposed on the holder of a bulk entitlement under subsection (1) must be set out in the notice of the qualification under section 33AAC.".
7Nature of water shares
(1)In section 33F(2) of the Water Act 1989—
(a)for "A water share" substitute "Subject to this Act, a water share";
(b)omit "or, with the approval of the Minister, in a subsequent season".
(2)At the foot of section 33F(2) of the Water Act 1989 insert—
"Note
The operation of some provisions of this Act affects the taking or use of water under a water share. Section 33AD is an example of such a provision.".
8Transfer of ownership of water share
In section 33S(1) of the Water Act 1989, for "another" substitute "a".
9Effect of transfer of limited term transfer
For section 33T(3) of the Water Act 1989 substitute—
"(3)A transfer under this section entitles the holder of the transfer to take water under future water allocations under the water share—
(a)from the date on which the transfer is recorded in the water register; or
(b)if a later date is specified in the transfer, that date.".
10Assignment of water allocation
(1)In section 33U(3) of the Water Act 1989, for "receive" substitute "take".
(2)In section 33U(4) of the Water Act 1989, for "received" substitute "taken".
11Further assignment of water allocation
In section 33V(3) of the Water Act 1989, for "receive" substitute "take".
12Ministerial approval for transfers and assignments of water shares
For section 33X(3) of the Water Act 1989 substitute—
"(3)The Minister must not—
(a)give an approval under subsection (1)(a)—
(i)if any fee under Division 9 that is payable in relation to the share is outstanding; or
(ii)for any other prescribed reason; or
(b)give an approval under subsection (1)(b) or (c) for any prescribed reason.".
13Application of limited term transfer to division of water share
After section 33Y(3) of the Water Act 1989 insert—
"(4)On the division of a water share under subsection (1), any limited term transfer that applied to the water share immediately before that division is, on and from that division, deemed to apply—
(a)in the case of the cancellation of the old share under subsection (1)(a), to each new share that is issued; or
(b)in the case of the variation of one share and the issue of one or more new shares under subsection (1)(b), to the share that is varied and to each new share that is issued.".
14Water allocations for water shares
In section 33AC(2) of the Water Act 1989, after "the water allocation" insert " that may be taken in a water season".
15Section 33AD substituted
For section 33AD of the Water Act 1989 substitute—
"33AD Declaration for taking of water allocation under water share in subsequent water season
(1)The Minister may make a declaration in respect of water shares, authorising the taking of water that is entitled to be taken under any water allocation for the water shares in a subsequent water season.
(2)A declaration under subsection (1) may apply to—
(a)water shares in a water system or part of a water system; or
(b)a class or classes of water shares in a water system or part of a water system.
(3)Any taking of water under a declaration under subsection (1) is subject to any terms and conditions specified by the Minister in the declaration.
(4)The Minister must cause notice of the making of a declaration under subsection (1) to be published—
(a)in the Government Gazette; and
(b)in a newspaper circulating generally in the area to which the declaration applies.
(5)A declaration under subsection (1) has effect on the publication of notice of the making of the declaration in the Government Gazette.".
16Application for determination of cessation as associated water share
After section 33AQ(2) of the Water Act 1989 insert—
"(2A)The owner of an associated water share may apply to the Minister for a determination under section 33AN.".
17Effect of death of mortgagee
(1)For the heading to section 33AV of the Water Act 1989 substitute—
"Effect of death of owner or holder of certain other interests".
(2)After section 33AV(6) of the Water Act 1989 insert—
"(7)On the death of a person who holds a mortgage over a water share, the mortgage forms part of the estate of that person.
(8)On the death of a person who holds a mortgage over a water share as a joint tenant with other persons, the remaining holders of the mortgage become the joint holders of the mortgage.
(9)On the death of a person who holds a mortgage over a water share as tenant in common with other persons, that person's portion of the mortgage becomes part of the estate of that person.".
18Definitions in Division 1 of Part 4
(1)For section 34(1) of the Water Act 1989 substitute—
"(1)In this Division Authority means—
(a)any water corporation empowered to carry out any function under this Act in relation to water supply or irrigation; or
(b)a person holding—
(i)a water licence; or
(ii)a water and sewerage licence—
issued under Division 1 of Part 2 of the Water Industry Act 1994; or
(c)a generation company within the meaning of the Electricity Industry Act 2000; or
(d)the Minister administering the Conservation, Forests and Lands Act 1987.".
(2)In section 34(2) of the Water Act 1989, omit "or Division 3".
19New sections inserted after section 34
After section 34 of the Water Act 1989 insert—
"34A Grant of bulk entitlement
The Minister may by Order published in the Government Gazette grant a bulk entitlement to water to an Authority, on approving an application under section 42(1)(c).
34BAuthorisation of entitlement
Subject to this Act, a bulk entitlement authorises the holder to take and use water in accordance with the terms of the entitlement.
Note
The operation of some provisions of this Act affects the taking and use of water under a bulk entitlement. Section 47DA is an example of such a provision.".
20Conversion of pre-existing entitlements
(1)Insert the following heading to section 35 of the Water Act 1989—
"Applications for conversion of pre-existing entitlements".
(2)Section 35(1) of the Water Act 1989 is repealed.
21Application for bulk entitlement
Section 36(2)(b) of the Water Act 1989 is repealed.
22Repeal of referral of bulk entitlement to Governor in Council
Section 37 of the Water Act 1989 is repealed.
23Advertisement of application
In section 38(2) of the Water Act 1989 omit "or Governor in Council (as the case requires)" (wherever occurring).
24Appointment of panel
(1)In section 39(1) of the Water Act 1989 omit "or Governor in Council (as the case requires)".
(2)In section 39(2) of the Water Act 1989 omit "or Governor in Council".
(3)In section 39(4) of the Water Act 1989, omit "or Governor in Council (as the case requires)".
(4)For section 39(5) of the Water Act 1989 substitute—
"(5)In considering the matter before it, a panel must have regard to—
(a)all submissions referred to it that were made in accordance with a notice under section 38(1)(a) in the manner and within the period specified in the notice; and
(b)all submissions made to the panel in the manner and within the period specified by the panel; and
(c)any further information provided to the Minister under section 38(2)(b)(i); and
(d)the results of any investigation carried out by the Minister under section 38(2)(b)(ii).
(5A)The panel must report its findings to the Minister within the period specified by the Minister.".
(5)In section 39(7) of the Water Act 1989 for "Governor in Council" substitute "Minister".
25Matters to be taken into account in determining application
(1)In section 40(1) of the Water Act 1989—
(a)omit "or Governor in Council (as the case requires)";
(b)after paragraph (a) insert—
"(ab)all submissions received by the Minister that were made in accordance with a notice under section 38(2)(a) in the manner and within the period specified in the notice;";
(c)paragraph (f) is repealed;
(d)in paragraphs (n) and (o), omit "or Governor in Council".
(2)In section 40(2) of the Water Act 1989, omit "or Governor in Council (as the case requires)".
26Deferral of applications for bulk entitlements
In section 41 of the Water Act 1989, omit "or Governor in Council (as the case requires)".
27Determination of application for bulk entitlement
(1)In section 42(1) of the Water Act 1989—
(a)omit "or Governor in Council (as the case requires)";
(b)paragraph (b) is repealed;
(c)in paragraph (c), omit "and grant the entitlement by Order published in the Government Gazette".
(2)In section 42(2) of the Water Act 1989, omit "or Governor in Council (as the case requires)".
(3)Sections 42(3), 42(4), 42(5) and 42(6) of the Water Act 1989 are repealed.
28Order granting bulk entitlement
In section 43 of the Water Act 1989—
(a)paragraph (bb) is repealed;
(b)in paragraph (e), omit "or to the holder of a licence issued under section 51 or 52".
29Amendment of bulk entitlement by Order
(1)For section 44(1) of the Water Act 1989 substitute—
"(1)The Minister may amend a bulk entitlement, or an entitlement to which section 35(2) applies by Order published in the Government Gazette.".
(2)After section 44(3) of the Water Act 1989 insert—
"(4)In this section amend, in relation to an entitlement to which this section applies, includes the consolidation of the entitlement with another such entitlement.".
30Section 45 substituted
For section 45 of the Water Act 1989 substitute—
"45 Minor amendment of bulk entitlement by notice
(1)The Minister may amend a bulk entitlement by notice given to the holder of the entitlement.
(2)The Minister must not amend a bulk entitlement under subsection (1) unless—
(a)the Authority holding the entitlement has applied to the Minister for the amendment; or
(b)the Minister has consulted with the Authority holding the entitlement about the amendment before making the amendment.
(3)In making an amendment under subsection (1), the Minister must be of the opinion that the amendment is necessary—
(a)to correct a mistake in the description of any element of the entitlement; or
(b)to make a minor variation arising from practical operations (including any dealing in a right or entitlement under this Act); or
(c)to vary an obligation or impose a new obligation on a resource manager, storage manager or environmental manager; or
(d)to make any other amendment to the entitlement that does not impact on another person's entitlement to water and does not adversely affect the environmental water reserve.
(4)An amendment to a bulk entitlement that is made by notice under subsection (1) does not have effect until notice of the making of the amendment has been published in the Government Gazette.".
31Transfers or assignments of bulk entitlements
(1)Insert the following heading to section 46 of the Water Act 1989—
"Transfers or assignments of bulk entitlements".
(2)In section 46(1) of the Water Act 1989, after "be transferred" insert ", or a water allocation under the entitlement may be assigned,".
(3)For section 46(2) of the Water Act 1989 substitute—
"(2)An assignment of water allocation under this section authorises the person to whom the water allocation has been assigned to take water under the water allocation under the bulk entitlement from the date specified in the assignment.".
(4)In section 46(3) of the Water Act 1989, for "of the transfer" substitute "to transfer the entitlement or assign a water allocation under the entitlement".
(5)In section 46(5) of the Water Act 1989—
(a)in paragraph (a)(i), after "transfer" insert
"or assignment";
(b)in paragraph (a)(ii), after "transferred" insert "or assigned";
(c)in paragraph (a), after "to approve the transfer" insert "or assignment";
(d)in paragraph (b)(i), after "transfer" insert
"or assignment";
(e)in paragraph (b)(ii), after "transfer" insert "or assignment".
(6)In section 46(8) of the Water Act 1989—
(a)after "transfers" insert "or assignments";
(b)after "bulk entitlement" (wherever occurring) insert "or water allocation".
(7)For section 46(9) of the Water Act 1989 substitute—
"(9)If an Authority proposes to transfer the whole or a part of a bulk entitlement under this section by selling the bulk entitlement or part, 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 part, is available for purchase; and
(b)giving details of the method by which the bulk entitlement or part is to be sold.".
32Transfers or assignments of bulk entitlements to irrigators
(1)For the heading to section 46A of the Water Act 1989 substitute—
"Transfers or assignments of bulk entitlements to irrigators".
(2)After section 46A(1) of the Water Act 1989 insert—
"(1A)An Authority holding a bulk entitlement may assign the whole or a part of any water allocation under the entitlement to a person who is—
(a)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.".
(3)In section 46A(2) of the Water Act 1989, after "transfer" insert "or assignment".
(4)After section 46A(2) of the Water Act 1989 insert—
"(3)An assignment of water allocation under this section authorises the person to whom the water allocation has been assigned to take water under the water allocation under the bulk entitlement from the date specified in the assignment.".
(5)Section 46A(3A) of the Water Act 1989 is repealed.
(6)In section 46A(4) of the Water Act 1989—
(a)for "A temporary transfer" substitute
"An assignment";
(b)in paragraphs (a) and (b), for "transfer" (wherever occurring) substitute "assignment".
(7)In section 46A(5) of the Water Act 1989—
(a)after "transferee" insert "or assignee";
(b)after "transfer" insert "or assignment".
(8)In section 46A(6) of the Water Act 1989, after "transfer" insert "or assignment".
(9)In section 46A(7) of the Water Act 1989—
(a)after "transfers" insert "or assignments";
(b)after "bulk entitlement" (wherever occurring) insert "or water allocation".
(10)For section 46A(8) of the Water Act 1989—
"(8)If an Authority proposes to transfer the whole or a part of a bulk entitlement under this section by selling the bulk entitlement or part, 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 part, is available for purchase; and
(b)giving details of the method by which the bulk entitlement or part is to be sold.".
(11)In section 46A(9) of the Water Act 1989, omit "permanent".
33Assignments of water allocations to persons outside Victoria
(1)Insert the following heading to section 46B of the Water Act 1989—
"Assignments of water allocations to persons outside Victoria".
(2)In section 46B(1) of the Water Act 1989—
(a)for "transfer" substitute "assign";
(b)for "that entitlement" substitute "any water allocation under that entitlement".
(3)After section 46B(1) of the Water Act 1989 insert—
"(1A)An assignment of water allocation under this section authorises the person to whom the water allocation has been assigned to take water under the water allocation under the bulk entitlement from the date specified in the assignment.".
(4)In section 46B(2) of the Water Act 1989, for "A transfer" substitute "An assignment".
(5)In section 46B(5) of the Water Act 1989—
(a)for "a transfer" substitute "an assignment";
(b)in paragraph (a)(i), for "the transfer" substitute "the assignment";
(c)for paragraph (a)(ii) substitute—
"(ii)the water allocation or part to be assigned is not surplus to the obligations of the Authority to supply water—";
(d)in paragraph (a), for "to approve the transfer" substitute "to approve the assignment";
(e)in paragraph (b) for "the transfer" (wherever occurring) substitute "the assignment".
(6)In section 46B(8) of the Water Act 1989—
(a)for "transfers" substitute "assignments";
(b)for "bulk entitlement" (wherever occurring) substitute "water allocation".
(7)In section 46B(9) of the Water Act 1989, for "bulk entitlement" substitute "water allocation".
34Compliance with terms of bulk entitlement
For section 47A(1) of the Water Act 1989 substitute—
"(1)An Authority referred to in section 34(1)(c) must comply with the specifications of an Order granting a bulk entitlement to it.".
35Conversion of licences, water shares or water rights to bulk entitlements
(1)In section 47C(1) of the Water Act 1989, omit "or water rights made available under section 222(1)(b)".
(2)In section 47C(2) of the Water Act 1989, for "any licences, water shares or water rights" substitute "any licences or water shares".
(3)In section 47C(3) of the Water Act 1989, for "such licences, water shares or water rights" substitute "such licences or water shares".
(4)For section 47C(4)(b) of the Water Act 1989 substitute—
"(b)contain any information that is required by the Minister; and".
(5)In section 47C(9)(b) of the Water Act 1989, for "and section 62 or 226" substitute "and section 33S or 62".
(6)In section 47C(10) of the Water Act 1989—
(a)omit "or water rights";
(b)in paragraph (a) omit "in the case of a licence,";
(c)in paragraph (b)(i) omit "or the amount of water that is specified in the register in respect of the holding";
(d)in paragraph (b)(ii) omit "or amounts".
(7)In section 47C(10A) of the Water Act 1989—
(a)in paragraph (b), for "water share." substitute "water share; or";
(b)after paragraph (b) insert—
"(c)cancel the water share.".
(8)Section 47C(11) of the Water Act 1989 is repealed.
36Minister may sell unallocated water
For section 47D(5)(d) of the Water Act 1989 substitute—
"(d)ensure that details of the sale are given to the relevant Authority for entry on the water register.".
37New section inserted after section 47D
After section 47D of the Water Act 1989 insert—
"47DA Declaration for taking of water allocation under bulk entitlement in subsequent water season
(1)The Minister may make a declaration in respect of a bulk entitlement to take water in a water system, authorising the taking of water that is entitled to be taken under any water allocation for the bulk entitlement in a subsequent water season.
(2)A declaration under subsection (1) may apply to—
(a)bulk entitlements in a water system or part of a water system; or
(b)a class or classes of bulk entitlements in a water system or part of a water system.
(3)Any taking of water under a declaration of the Minister under subsection (1) is subject to—
(a)the terms and conditions of the bulk entitlement to which the water allocation applies; and
(b)any terms and conditions specified by the Minister in the declaration.
(4)The Minister must cause notice of the making of a declaration under subsection (1) to be published—
(a)in the Government Gazette; and
(b)in a newspaper circulating generally in the area to which the declaration applies.
(5)A declaration under subsection (1) has effect on the publication of notice of the making of the declaration in the Government Gazette.".
38Repeal of redundant requirement to keep register
Section 48 of the Water Act 1989 is repealed.
39Authorisation of entitlement
In section 48BA of the Water Act 1989—
(a)for "An environmental entitlement" substitute "Subject to this Act, an environmental entitlement";
(b)at the foot of the section insert—
"Note
The operation of some provisions of this Act affects the application of water under an environmental entitlement. Section 48MA is an example of such a provision.".
40New section inserted after section 48M
After section 48M of the Water Act 1989 insert—
"48MA Declaration for taking of water allocation under environmental entitlement in subsequent water season
(1)The Minister may make a declaration in respect of an environmental entitlement to apply water in a water system, authorising the application of water available to be applied under any water allocation for the environmental entitlement in a subsequent water season.
(2)A declaration under subsection (1) may apply to—
(a)environmental entitlements in a water system or part of a water system; or
(b)a class or classes of environmental entitlements in a water system or part of a water system.
(3)Any application of water under a declaration of the Minister under subsection (1) is subject to—
(a)the terms and conditions of the environmental entitlement to which the water allocation applies; and
(b)any terms and conditions specified by the Minister in the declaration.
(4)The Minister must cause notice of the making of a declaration under subsection (1) to be—
(a)published in the Government Gazette; and
(b)in a newspaper circulating generally in the area to which the declaration applies.
(5)A declaration under subsection (1) has effect on the publication of notice of the making of the declaration in the Government Gazette.".
41Power of environment Minister to delegate
In section 48PB of the Water Act 1989, after "functions, powers or duties under this Division" insert ", or under a subordinate instrument made under this Division,".
42Amendment of licence on motion of Minister
(1)Insert the following heading to section 59 of the Water Act 1989—
"Amendment of licence issued under section 51 on motion of Minister".
(2)In section 59(1) of the Water Act 1989, after "The Minister" insert ", of the Minister's own motion,".
43New sections inserted after section 59
After section 59 of the Water Act 1989 insert—
"59A Amendment of licence issued under section 51 on application of licence holder
(1)The Minister, on the application of the holder of a licence issued under section 51, may amend the licence.
(2)The holder of a licence issued under section 51 may apply to the Minister for an amendment of the licence under this section.
(3)An application under this section—
(a)must be in a form and made in a manner approved by the Minister; and
(b)contain any information that is required by the Minister; and
(c)be accompanied by the fee fixed by the Minister for that class of application (if any).
59BProcedure applying to application
The procedure that applies under this Division to an application for the issue of a licence under section 51 applies, with any necessary modifications and subject to section 59C, to an application under section 59A for the amendment of such a licence.
59CMinisterial consideration of application
In considering an application under section 59A, the Minister—
(a)must have regard to any matter referred to in section 53(1)(a) to 53(1)(b); and
(b)must give effect to the matters referred to in section 53(2); and
(c)may have regard to any other matter that the Minister thinks fit.".
44New section 62A inserted
After section 62 of the Water Act 1989 insert—
"62A Declaration for taking of water under a licence in subsequent water season
(1)The Minister may make a declaration in respect of licences issued under section 51 to take water in a water system, authorising that holders of the licences may take water that is entitled to be taken under the licences in any particular water season in a subsequent water season.
(2)A declaration under subsection (1) may apply to—
(a)licences in a water system or part of a water system; or
(b)a class or classes of licences in a water system or part of a water system.
(3)Any taking of water under a declaration of the Minister under subsection (1) is subject to—
(a)any terms and conditions of the licence to which the water allocation applies; and
(b)any terms and conditions specified by the Minister in the declaration.
(4)The Minister must cause notice of the making of a declaration under subsection (1) to be—
(a)published in the Government Gazette; and
(b)in a newspaper circulating generally in the area to which the declaration applies.
(5)A declaration under subsection (1) has effect on the publication of notice of the making of the declaration in the Government Gazette.".
45Review of decisions
After section 64(1)(g) of the Water Act 1989 insert—
"(ga)under section 59A(1) or (2) to amend a licence; or".
46Repeal of provision as to periodic amendment of bulk entitlement
Section 64G of the Water Act 1989 is repealed.
47Seasonal determinations
For section 64GB(1)(b) and (c) of the Water Act 1989 substitute—
"(b)for each bulk entitlement in the system in respect of which the water available to be taken, in any water season, under the entitlement is not able to be established from the terms of the entitlement; and
(c)for each environmental entitlement in the system in respect of which the water available to be taken, in any water season, under the entitlement is not able to be established from the terms of the entitlement.".
48Notification of determination
In section 64X(b) of the Water Act 1989, omit "in a newspaper circulating generally throughout the State and".
49Notification of determination as to standard water use conditions
In section 64AC(1)(b) of the Water Act 1989, omit "in a newspaper circulating generally throughout the State and".
50Variation of conditions of water-use applications
In section 64AU(1) of the Water Act 1989, after "the terms" insert "or conditions".
51Responsibilities for water register
For sections 84C(1) and (2) of the Water Act 1989 substitute—
"(1)The Minister is responsible for establishing and maintaining the system for the water register in which is kept records and information referred to in subsections (2), (2A) and (3).
(2)The Minister is responsible for establishing and maintaining records and information in the water register relating to—
(a)water-use licences; and
(b)water-use registrations; and
(c)bulk entitlements; and
(d)environmental entitlements; and
(e)the recording of amounts of water that are to be allocated to each water share under section 33AC; and
(f)works licences under section 67(1) where the licence relates to a declared water system.
(2A)The Registrar is responsible for establishing and maintaining records and information in the water register relating to water shares.".
52Form and manner of keeping water register
(1)In section 84D(1) of the Water Act 1989, for "Registrar" (where twice occurring) substitute "Minister".
(2)In section 84D(2)(a) of the Water Act 1989, for "the Registrar" substitute "the Minister".
53Disclosure of information
(1)For section 84E(1)(b) of the Water Act 1989 substitute—
"(b)the Minister—
(i)to establish and maintain the system of the water register; and
(ii)to carry out the Minister's functions under this Act—".
(2)In section 84E(2) of the Water Act 1989—
(a)for paragraph (a) substitute—
"(a)the Registrar to carry out the Registrar's functions under this Act; or";
(b)for paragraph (c) substitute—
"(c)the Minister—
(i)to establish and maintain the system of the water register; and
(ii)to carry out the Minister's functions under this Act—".
(3)For section 84E(3)(a) of the Water Act 1989 substitute—
"(a)the Registrar to carry out the Registrar's functions under this Act; or".
54New Division 1A of Part 5A inserted
After Division 1 of Part 5A of the Water Act 1989 insert—
"Division 1A—Minister's functions
84EAFunctions of Minister as to water register
(1)The functions of the Minister as to the water register are—
(a)to establish and maintain the system for the water register and ensure the system's integrity, efficiency, viability, compatibility and consistency; and
(b)to consult with other recording bodies about matters relating to the form and operation of the system of the water register and the maintaining of records and information, including alterations, in the water register; and
(c)to create, or enable the creation of, reports derived from records and information in the water register, including reports created in accordance with the direction of the Minister.
(2)The Minister may make a report created under subsection (1)(c) available to the public, if the report does not include the names and addresses of individuals.".
55Registrar's functions
(1)Sections 84G(1)(a), 84G(1)(d) and 84G(1)(f) of the Water Act 1989 are repealed.
(2)Section 84G(2) of the Water Act 1989 is repealed.
56Registrar's power of delegation
For section 84H(1) of the Water Act 1989 substitute—
"(1)The Registrar, by instrument, may delegate any of the Registrar's powers, duties or functions under this Act or under a subordinate instrument made under this Act, other than this power of delegation, to—
(a)a person employed under Part 3 of the Public Administration Act 2004; or
(b)an Authority.".
57Recording of transfers
In section 84J(3) of the Water Act 1989, after "unless the Registrar is satisfied that" insert
", at the time the transfer was lodged for recording,".
58Substitution of section 84K
For section 84K of the Water Act 1989 substitute—
"84K Recording of legal personal representatives
(1)A legal personal representative may lodge a document with the Registrar for the recording of the transmission to the legal personal representative of—
(a)the ownership of a water share owned by a deceased person represented by the legal personal representative; or
(b)the holding of a limited term transfer held by a deceased person represented by the legal personal representative; or
(c)a deceased person's interest as a mortgagee of a water share, where the deceased person is represented by the legal personal representative.
(2)A document under subsection (1) must be in the approved form.
(3)On being satisfied as to the legal personal representative's authority to be recorded under this section, the Registrar may make a recording of—
(a)the appointment of that legal personal representative; and
(b)the date of death of the person represented by the legal personal representative.
(4)On the making of a recording under this section in a case where subsection (1)(a) applies—
(a)the legal personal representative becomes the owner of the water share in respect of the interest of the deceased owner of the water share; and
(b)the legal personal representative holds the water share subject to all equities to which the deceased owner was subject in relation to the water share, but for the purpose of any dealing with the water share under this Act, is the owner of the water share; and
(c)the status of the legal personal representative as owner of the water share relates back to, and is deemed to have arisen on, the death of the owner of the water share as if there has been no interval of time between the death and the recording.
(5)On the making of a recording under this section in a case where subsection (1)(b) applies—
(a)the legal personal representative becomes the holder of the limited term transfer in respect of the deceased holder of the limited term transfer; and
(b)the status of the legal personal representative as holder of the limited term transfer relates back to, and is deemed to have arisen on, the death of the holder of the limited term transfer as if there has been no interval of time between the death and the recording.
(6)On the making of a recording under this section in a case where subsection (1)(c) applies—
(a)the legal personal representative becomes the mortgagee in respect of the deceased mortgagee; and
(b)the status of the legal personal representative as mortgagee relates back to, and is deemed to have arisen on, the death of the deceased mortgagee as if there has been no interval of time between the death and the recording.".
59Substitution of section 84L
For section 84L of the Water Act 1989 substitute—
"84L Recording of survivor of joint ownership or holding
(1)Subject to this Act, on the death of a person recorded in the water register with any other person as—
(a)joint owners of a water share; or
(b)joint holders of a limited term transfer; or
(c)joint holders of a mortgagee interest in a water share—
the survivor may lodge a document with the Registrar for a recording to be made in the water register of the transmission to the survivor of the deceased person's ownership or holding.
(2)A document lodged under subsection (1) must be in the approved form.
(3)The Registrar may make a recording of the transmission by survivorship of the joint ownership of a water share or the joint holding of a limited term transfer on being satisfied as to proof of the death of the joint owner or joint holder (as the case requires).".
60Priority of recordings
(1)After section 84Q(1) of the Water Act 1989 insert—
"(1A)If two or more documents for the making of a recording in relation to the same water share are lodged and are waiting recording, the Registrar may make the recordings in the water register arising from those documents in the order which will give effect to the intentions of all the parties, as expressed in or apparent to the Registrar from those documents.".
(2)In section 84Q(2) of the Water Act 1989, for "The priority" substitute "Subject to subsection (1A), the priority".
61Information available from water register
Section 84X(2) of the Water Act 1989 is repealed.
62Consideration for transfer
In section 84ZG of the Water Act 1989, before "must state the monetary consideration in relation to the transfer" insert "must state whether or not the transfer is for monetary consideration and, if the transfer is for monetary consideration,".
63Giving of notices
(1)For the heading to section 84ZH of the Water Act 1989 substitute—
"Method of giving of notices".
(2)In section 84ZH(1) of the Water Act 1989—
(a)omit "served or";
(b)for paragraph (a) substitute—
"(a)by being sent by letter posted to the person concerned at the address of the person recorded in the water register, which may be a post office box; or";
(c)in paragraph (c) omit "if that person has no address for service within the meaning of this section,".
(3)Section 84ZH(2) of the Water Act 1989 is repealed.
(4)In section 84ZH(4) of the Water Act 1989, for "at that person's address for service" substitute "at the address recorded in the water register under subsection (1)(a)".
(5)Section 84ZH(5) of the Water Act 1989 is repealed.
64Corporate plans of water corporations
In section 247(1) of the Water Act 1989, for
"An Authority" substitute "A water corporation".
65Application of proceeds of sale of water share
For section 287C(1)(c) of the Water Act 1989 substitute—
"(c)thirdly, in discharging any recorded mortgages of which the Authority has notice, according to the priority of those mortgages.".
66Sale or transfer of water share cancels encumbrances
(1)In section 287D(a) of the Water Act 1989, omit "over which the Authority's charge has priority".
(2)At the end of section 287D of the Water Act 1989 insert—
"(2)The application of this section to the sale or transfer of water share is not to be taken to affect the rights of any holder of a limited term transfer under the water share.".
67Power to incorporate documents in certain instruments
In section 305C(2) of the Water Act 1989—
(a)after paragraph (ha) insert—
"(i)section 35;
(j)section 44;
(k)section 48B;
(l)section 48K;";
(b)paragraph (n) is repealed;
(c)in paragraph (r), for "202" substitute "201".
68Minister's power of delegation
In section 306(1) of the Water Act 1989—
(a)after "under this or any other Act" insert
"or under any subordinate instrument made under this Act";
(b)in paragraph (b), for "62(9)" substitute "33AD, 47DA, 48MA, 62A".
69Power of Minister to give directions
For section 307(1) of the Water Act 1989 substitute—
"(1)The Minister, after consulting with the Treasurer, may give a written direction to an Authority in relation to the performance of any of its functions or the exercise of any of its powers.
(1AA)Without limiting subsection (1), a direction may be given in relation to—
(a)compliance with the specifications of or the conditions in a bulk entitlement; or
(b)compliance with—
(i)any conditions in; or
(ii)any duties imposed by the Minister on imposing—
a qualification on the holder of a bulk entitlement under Division 4 of Part 3.".
70Regulation making powers
(1)In section 324(1)(ab) of the Water Act 1989, for "or transfer" substitute ", transfer or assignment".
(2)For section 324(1A) of the Water Act 1989 substitute—
"(1A)Regulations fixing fees under subsection (1)(ad), Part 3A or Part 4B may provide for the waiver, in whole or in part of the fees.
(1B)A power conferred under this Act to make regulations fixing fees may be exercised by fixing one fee for two or more matters in respect of which fees are required to be paid under this Act.".
71Repeal of spent provisions
(1)Section 325 of the Water Act 1989 is repealed.
(2)Schedule 13 to the Water Act 1989 is repealed.
72Repeal of savings and transitional provisions
(1)Section 326(1) and section 326(2) of the Water Act 1989 are repealed.
(2)Schedule 14 to the Water Act 1989 is repealed.
73Insertion of new section 334
After section 333 to the Water Act 1989 insert—
"334 Certificate as to land taken over by another body
(1)If a body—
(a)has taken over land under an Order under section 98 (as in force before the commencement of section 54 of the Water (Governance) Act 2006); or
(b)is the successor in law of a body that has so taken over land—
the chief executive officer (however described) of the body may apply to the Registrar of Titles to have the Register amended.
(2)An application under subsection (1) must be accompanied by—
(a)a certificate, signed by the chief executive officer, certifying that the land specified in the certificate is land that has been taken over by that body under any such Order with effect from the coming into operation of the Order; and
(b)any relevant certificate of title.
(3)On receiving a certificate under subsection (2) and any relevant certificate of title, the Registrar of Titles must make any amendments in the Register that are necessary because of the operation of the Order specified in the certificate.".
74Recording of discharge of mortgage
For clause 10(1) of Schedule 12A to the Water Act 1989 substitute—
"(1)A person may lodge with the Registrar a discharge of mortgage signed by the mortgagee, for the Registrar to record in the water register the discharge of the recorded mortgage from the water share.
(1A)On a discharge being lodged under subsection (1), the Registrar—
(a)may make a recording in the water register discharging the mortgage; and
(b)on the making of that recording, the water share ceases to be subject to, or liable for, the money secured by the mortgage.".
75Section 33AV(4) not to apply to converted life tenancies
After clause 9(2) of Schedule 15 to the Water Act 1989 insert—
"(2A)Section 33AV(4) does not apply to a limited term transfer under subclause (1).".
76Dealings in unconfirmed water shares
(1)In clause 32(1) of Schedule 15 to the Water Act 1989—
(a)in paragraph (c), for "water share." substitute "water share;";
(b)after paragraph (c) insert—
"(d)assignment of a water allocation under the water share under section 33U or 33V;
(e)surrender of the water share under section 33AA;
(f)surrender of limited term transfer under section 33T(5).".
(2)After clause 32(2) of Schedule 15 to the Water Act 1989 insert—
"(3)In the case of an assignment of a water allocation under a water share to which subclause (1)(d) applies, all persons who own the water share, in whole or in part, and all persons who have limited term transfers under the water share, in whole or in part are to be taken to be the holder of the water share.".
77Amendments to the Water Act 1989 in the Schedule
The Water Act 1989 is further amended as set out in the Schedule.
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Part 3—Amendments to the Residential Tenancies Act 1997
78Amendment of the definition section in the Residential Tenancies Act 1997
(1)In section 3(1) of the Residential Tenancies Act 1997, the definition of A rating is repealed.
(2)Insert the following definition in section 3(1) of the Residential Tenancies Act 1997—
"prescribed rating system, in relation to water appliances, fixtures and fittings, means a system of rating the water efficiency of water appliances, fixtures and fittings that is prescribed;".
79Substitution of references to A rating in Residential Tenancies Act 1997
(1)Insert the following heading to section 69 of the Residential Tenancies Act 1997—
"Landlord must ensure rating compliance for replacement water appliances".
(2)In section 69 of the Residential Tenancies Act 1997, for "an A rating" substitute "a prescribed level of rating in a prescribed rating system".
(3)For section 72(3) of the Residential Tenancies Act 1997 substitute—
"(3)If urgent repairs are required to an item that uses or supplies water and that item does not have at least a prescribed level of rating in a prescribed rating system, and that item cannot be repaired, the tenant may replace it with an item that has a rating that is of or above a prescribed level of rating in a prescribed rating system.".
(4)In section 181 of the Residential Tenancies Act 1997, for "an A rating" substitute "a prescribed level of rating in a prescribed rating system".
(5)For section 188(3) of the Residential Tenancies Act 1997 substitute—
"(3)If urgent repairs are required to an item that uses or supplies water and that item does not have at least a prescribed level of rating in a prescribed rating system, and that item cannot be repaired, the resident may replace it with an item that has a rating that is of or above a prescribed level of rating in a prescribed rating system.".
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Part 4—Repeal
80Repeal of Act
This Act is repealed on the 1 January 2012.
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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SCHEDULE
Section 78
Minor and Consequential Amendments to the Water Act 1989
In section 22C(1)(e), before "include" insert "to".
In section 43A(1), omit "or Division 3".
In section 48K(4), for "subsection (3)(b)" substitute "this section".
In sections 53(1) and 53(2), omit "or 52".
In section 54—
(a)in subsection (1)(b)(i), omit "or 52";
(b)in subsection (1)(b)(ii), omit "or 52";
(c)in subsection (2)(c), omit "or 52";
(d)in subsection (2)(d), omit "or 52".
In section 55(1) omit "or 52".
In section 56—
(a)in subsection (1), omit "or 52";
(b)in subsection (3), omit "or 52".
In section 57—
(a)in subsection (1) omit "or 52";
(b)in subsection (3) omit "or 52 (as the case requires)".
In section 58—
(a)in subsection (1) omit "or 52";
(b)in subsection (3) omit "or 52";
(c)in subsection (6) omit "or 52".
In section 60 (1), omit "or 52".
In section 61(1), omit "or 52".
In section 62—
(a)in subsection (1), omit "or 52";
(b)in subsection (6)(b)(ii), omit "subject to subsection (9),".
In section 64—
(a)in subsection (1)(a) omit "or 52";
(b)in subsection (1)(b) omit "or 52".
In section 74AA(1)(b), for "relates" substitute "relate".
In section 100(1)(b), omit "(".
In section 170D(3), for "licensee" substitute "Authority".
In section 203(1), for "202(b)" substitute "202(1)(b)".
In section 208(1), for "202(d)" substitute "202(1)(d)".
In section 209(1), for "202(d)" substitute "202(1)(d)".
In section 247—
(a)in subsection (2A), for "the Authority" (wherever occurring) substitute "the water corporation";
(b)in subsection (3), for "An Authority" substitute "A water corporation";
(c)in subsection (5), for "the Authority" substitute "the water corporation";
(d)in subsection (6), for "An Authority" substitute "A water corporation";
(e)in subsection (8), for "an Authority" substitute "a water corporation".
In section 248, for "the Authority" (wherever occurring) substitute "the water corporation".
In section 249, for "An Authority" substitute
"A water corporation".
In section 250—
(a)for "an Authority" substitute "a water corporation";
(b)in paragraph (a), for "the Authority" substitute "the water corporation".
In section 251(1)—
(a)for "an Authority" substitute "a water corporation";
(b)for "the Authority" substitute "the water corporation".
In section 287B(6)(b), for "limited terms transfer" substitute "limited term transfer".
Insert the following heading to section 309—
"Powers of the Minister in enforcing certain Parts of this Act".
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Endnotes
Minister's second reading speech—
Legislative Assembly: 25 November 2009
Legislative Council: 10 December 2009
The long title for the Bill for this Act was "A Bill for an Act to amend the Water Act 1989 and the Residential Tenancies Act 1997 and for other purposes."
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