Water and Catchment Legislation Amendment Act 2021 (Vic)
Water and Catchment Legislation Amendment Act 2021
No. 48 of 2021
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Principal Act
Part 2—Definitions, the water register and related amendments
Division 1—Definitions for Part 2
4Definitions for Part 2
Division 2—Definitions for Part 3
5Definitions for Part 3
6New sections 6B and 6C inserted
Division 3—Serviced property definition
7Serviced property definition
Division 4—The water register and related amendments
8Limited term transfers of rights to future water allocations under water shares
9Standing directions as to future water allocations under water shares
10Ministerial approval of revocation of standing direction
11Assignment of water allocation
12Further assignment of water allocation
13Offence to give transfer etc. without approval
14Ministerial approval
15Offence to take interstate water without approval of Minister
16Approval of Minister to taking of interstate water
17Effect of death of person who holds water allocation
18Application for review of certain Ministerial decisions
19Section 84A substituted
20Purpose of water register
21Section 84C substituted
22Disclosure of information
23Functions of Minister as to water register
24What is recorded in the water register about water shares?
25What is recorded in the water register about licences to take and use water?
26New sections 84VB and 84VC inserted
27What must an Authority record in the part of the water register for which it is responsible?
28What must a Rural Water Authority record in the part of the water register for which it is responsible?
29Section 84WB repealed
30Section 84X substituted
31Suppression of certain personal records and information
Part 3—Places, rates and times of taking water
Division 1—New Part 4AA inserted
32New Part 4AA inserted
33Heading substituted
Division 2—Amendments consequent on the enactment of new Part 4AA
34Section 9 substituted
35Repeal of certain provisions related to water shares
36Limited term transfers of rights to future water allocations under water shares
37Standing assignments of future allocations under water shares
38Assignment of water allocation
39Further assignment of water allocation
40Section 33AH repealed
41Section 33AI repealed
42Division 10 of Part 3A repealed
43Effect of death of person who holds a water allocation
44Application for Tribunal to review certain decisions of the Minister as to water shares
45Rule making powers for water shares
46Definition and disallowance
47Section 34B repealed
48Assignment of water allocation
49Further assignment of water allocation
50Offence to give an assignment without Ministerial approval
51New section 46CA inserted
52Section 48BA substituted
53Assignment of water allocation
54Further assignment of water allocation
55New section 48OAA inserted
56Conditions of licence
57Section 64K repealed
58Application of this Part
59Definitions and application
60Authority to fix terms and conditions for the service of delivering water
Part 4—Further amendment of the Water Act 1989
Division 1—New Division 3 of Part 4 inserted
61New Division 3 of Part 4 inserted
Division 2—Renaming of City West Water Corporation
62Schedule 1—Water Corporations and Former Water Authorities
63Schedule 1A—Metropolitan water corporations—old licensees under the Water Industry Act 1994
Division 3—Amendments consequent on the change of catchment manager for Port Phillip and Westernport Region
64Definition of board of directors
65Appointment of administrator
66Section 124A repealed
67Corporate plans
68Limits on power of certain Authorities to set tariffs
Division 4—Miscellaneous amendment of the Water Act 1989
69Certain provisions to bind Crown
70Powers of Minister in relation to assessment program
71Offence to interfere etc. with State observation bore
72Offences for taking water without a water share
73Compliance with terms of bulk entitlement
74Offence to breach licence conditions
75Offences for taking or using water from a non-declared water system
76Offence to use water for certain purposes on land without licence
77Offence to fail to comply with licence condition
78Offence to breach licence conditions under section 71
79Offences
80Offences as to obstruction of waterways etc.
81Offences as to disposal of matter underground
82Offence not to comply with section 78 direction
83Offence not to comply with section 79 direction
84Offence not to comply with section 80 direction
85New section 81A inserted
86Safety duties in relation to works on or in immediate vicinity of rail infrastructure or rolling stock
87Notification of Authorities before railway operations carried out
88Control over connections
89Offences as to connections and discharges without consent
90Structures over works
91Notice of contravention
92Offence not to comply with notice of contravention
93Notice of contravention for water supply protection
94Protection of sewers
95Works that interfere with designated land or works
96Control over connections and discharges
97Control of works and structures
98Offences as to Authority's property
99Wrongful taking etc. of water
100Offence to interfere with flow of water
101Uncovering or exposing works
102Indictable offences
103Section 297 substituted
104Section 297 amended
105Section 297A amended
106Power of Minister to exempt
107Powers of the Minister in enforcing certain Parts of this Act
Part 5—Transitional provisions for amendment of Water Act 1989
108New Part 17 inserted
Part 6—Amendment of Catchment and Land Protection Act 1994
Division 1—Abolition of the Victorian Catchment Management Council
109Definitions
110Objectives of Act
111Divisions 1 and 1A of Part 2 are repealed
112Functions, powers and duties of Authorities
113New Division 4A of Part 2 inserted
114Guidelines
115Action before recommendation
116Regulations
117Schedule 2—Regional catchment strategies and special area plans
Division 2—Change of catchment manager for Port Phillip and Westernport Region
118Definitions
119Establishment of Authorities
120New section 11A inserted
121Obligations of Catchment Management Authorities in relation to declared areas
122Section 12A repealed
123Section 12B repealed
124Appointment of administrator
125Application of Public Administration Act 2004
126New section 15AA inserted
127Power of the Minister to give directions
128Corporate plans
129Statement of corporate intent: contents
130Power of delegation
131Chief Executive Officer
132Delegation powers of Chief Executive Officer
133Section 27A repealed
134Regulations
135New Division 1 of Part 11 heading inserted
136New Division 2 inserted in Part 11
Division 3—Miscellaneous amendment of Catchment and Land Protection Act 1994
137Boards of Catchment Management Authorities
138Section 19B substituted
Part 7—Amendment of other Acts
Division 1—Amendment of Confiscation Act 1997
139Amendment of the Confiscation Act 1997
Division 2—Amendment of Water Industry Act 1994
140Definitions
Division 3—Amendment of Flora and Fauna Guarantee Act 1988 consequent on the abolition of the Victorian Catchment Management Council
141Definitions
142Advice
143The Committee's final recommendation
Division 4—Amendment of other Acts consequent on the change of the catchment manager of the Port Phillip and Westernport Region
144Climate Change Act 2017
145Conservation, Forests and Lands Act 1987
146Flora and Fauna Guarantee Act 1988
147Planning and Environment Act 1987
148Yarra River Protection (Wilip-gin Birrarung murron) Act 2017
Part 8—Repeal of this Act
149Repeal of this Act
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Endnotes
1 General information
Water and Catchment Legislation Amendment Act 2021
No. 48 of 2021
[Assented to 3 November 2021]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Water Act 1989 to provide for—
(i)recording certain additional information under the Act; and
(ii)the regulation of places, rates and times of taking water; and
(iii)Ministerial powers to deal with taking unauthorised amounts of water from an approved place; and
(iv)renaming City West Water Corporation; and
(v)related and minor matters; and
(b)to amend the Catchment and Land Protection Act 1994 to provide for—
(i)abolition of the Victorian Catchment Management Council; and
(ii)a change of catchment manager for the Port Phillip and Westernport Region; and
(iii)related and minor matters; and
(c)to make consequential and related amendments to other Acts.
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 July 2023, it comes into operation on that day.
3Principal Act
In this Act, the Water Act 1989 is called the Principal Act.
Part 2—Definitions, the water register and related amendments
Division 1—Definitions for Part 2
4Definitions for Part 2
In section 3(1) of the Principal Act—
(a)insert the following definitions—
"approved interstate right means an equivalent interstate right that has been approved under section 33AG as a right under which the holder may take water in Victoria;
equivalent interstate right means a right in another State or Territory of the Commonwealth that is an equivalent right to—
(a)a water share and all water allocations made under that water share; or
(b)a water allocation under a water share;
standing assignment means an assignment of water allocations under section 33TA(1);";
(b)for the definition of recording body substitute—
"recording body means—
(a)in relation to the records and information in the water register relating to the details set out in Division 3 of Part 5A, the Registrar; or
(b)in relation to the records and information in the water register relating to the details set out in Division 4 of Part 5A, the Minister; or
(c)in relation to the records and information in the water register relating to the details set out in Division 5 of Part 5A, to the extent required for an Authority under that Division, that Authority;";
(b)the definition of standing direction is repealed.
Division 2—Definitions for Part 3
5Definitions for Part 3
(1)In section 3(1) of the Principal Act insert the following definitions—
"approved place means a place approved under a general place of take approval as a place from which water may be taken;
Basin Plan has the same meaning as in the Water Act 2007 of the Commonwealth;
Basin water resource plan has the same meaning as water resource plan has in the Water Act 2007 of the Commonwealth;
general place of take approval means an approval given under section 64FC;
generation company has the same meaning as in the Electricity Industry Act 2000;
nominal daily area water take, for a rationing area, means the amount of water that, in the Minister's opinion, can reasonably be delivered to the rationing area on a daily basis;
notional rationing rate, in relation to a general place of take approval means the portion of the nominal daily area water take for the rationing area in which the approved place is situated that is set out in the approval, however the portion is expressed;
notional rationing rate declaration means a declaration under section 64FV;
particular place of take approval means an approval given under section 64FZJ;
rationing area means an area in a declared water system that has been declared by the Minister under section 6C(1) or 64FV to be a rationing area;
relevant water allocation means any water allocation other than a water allocation under a bulk entitlement or environmental entitlement that has not been assigned under this Act;
water system zone, in relation to a declared water system, means an area in that system that has been declared under section 6B(1) to be a zone in that system, or if that area has been amended by a declaration under section 6B(2), the area as amended;".
(2)In section 3(1) of the Principal Act, in the definition of associated water system, after "for which the share is issued" insert "or, if the Minister has determined that the water share is to be converted to a water share with a different associated water system, that water system".
(3)In section 3(1) of the Principal Act, the definition of associated water share is repealed.
(4)In section 3(1) of the Principal Act, in paragraph (a) of the definition of person, after "Part 4," insert "Part 4AA,".
(5)After section 3(4) of the Principal Act insert—
"(5)To avoid doubt, in this Act, unless the context otherwise requires—
(a)a reference to a water share includes the following—
(i)a water share, the ownership of which has been transferred under section 33S;
(ii)a water share in respect of which a limited term transfer under section 33T has been made; and
(b)a reference to a water allocation includes a water allocation that has been assigned under this Act, including by a further assignment or standing assignment under this Act.
Note
See section 33AG(3) and (4) for approved interstate rights that are taken to be water shares or water allocations.".
6New sections 6B and 6C inserted
After section 6A of the Principal Act insert—
6BPower to declare zones in water systems"
(1)On the recommendation of the Minister, the Governor in Council, by Order published in the Government Gazette, may make a declaration that an area in a declared water system becomes a water system zone on the day specified in the declaration.
(2)On the recommendation of the Minister, the Governor in Council, by Order published in the Government Gazette, may make a declaration amending or revoking a declaration made under subsection (1).
(3)If an Order in Council is made amending or revoking a declaration under subsection (1), the Minister, on the Minister's own motion—
(a)may vary or revoke the water system zone applying to the water shares affected by the declaration; and
(b)may vary or revoke the water system zone applying to the general place of take approvals affected by the declaration.
6CPower to declare rationing areas
(1)The Minister may declare an area in one or more declared water systems to be a rationing area.
(2)If the area to be declared under subsection (1) comprises all or part of one or more irrigation districts, section 64FV and the process set out in section 64FW apply.
(3)If subsection (2) does not apply, a declaration under subsection (1) must be made by instrument and published in the Government Gazette.".
Division 3—Serviced property definition
7Serviced property definition
(1)In section 3(1) of the Principal Act, in paragraph (a) of the definition of serviced property, after "or 179" insert ", or by a declaration under 226(5)".
(2)In section 3(1) of the Principal Act, at the foot of the definition of serviced property insert—
"Note
For land that is taken to be serviced property see sections 336 and 348.".
(3)Subsection (1) is taken to have come into operation on 19 March 2020.
Division 4—The water register and related amendments
8Limited term transfers of rights to future water allocations under water shares
In section 33T(3) of the Principal Act, for "entitles" substitute "authorises".
9Standing directions as to future water allocations under water shares
(1)For the heading to section 33TA of the Principal Act substitute—
"Standing assignments of future allocations under water shares".
(2)For section 33TA(1) and (2) of the Principal Act substitute—
"(1)The owner of a water share, after obtaining the approval of the Minister, may assign the whole of the right to future water allocations under that share to another person.".
(3)In section 33TA(3) of the Principal Act—
(a)for "standing direction" substitute "standing assignment";
(b)for "the direction" substitute "the assignment".
(4)In section 33TA(4) of the Principal Act, for "standing direction" substitute "standing assignment".
(5)In section 33TA(5) of the Principal Act, for "standing direction" substitute "standing assignment".
10Ministerial approval of revocation of standing direction
(1)In the heading to section 33TB of the Principal Act, for "standing direction" substitute "standing assignment".
(2)In section 33TB of the Principal Act, for "standing direction" substitute "standing assignment".
11Assignment of water allocation
(1)In section 33U(1) of the Principal Act, after "holder of a water share" insert ", after obtaining the approval of the Minister under section 33X,".
(2)Section 33U(1A) of the Principal Act is repealed.
(3)In section 33U(5) of the Principal Act, in the definition of holder of a water share—
(a)in paragraph (a), for "standing direction" substitute "standing assignment";
(b)for paragraph (c) substitute—
"(c)in the case of a water share in respect of which there is a standing assignment, the person to whom the standing assignment is given; or
(d)a person who, as a result of the operation of section 33S(3), has a water allocation available to them.".
12Further assignment of water allocation
In section 33V of the Principal Act, after "under this section," insert ", after obtaining the approval of the Minister under section 33X,".
13Offence to give transfer etc. without approval
(1)In the heading to section 33W of the Principal Act, for "standing direction" substitute "standing assignment".
(2)In section 33W(1)(d) of the Principal Act, for "standing direction" substitute "standing assignment".
14Ministerial approval
(1)In section 33X(1) of the Principal Act—
(a)in paragraph (ba), for "standing direction" substitute "standing assignment";
(b)for paragraph (c) substitute—
"(c)the assigning or further assigning of the whole or a part of a water allocation under section 33U or 33V.".
(2)In section 33X(4) of the Principal Act, for "must have regard to" substitute "must apply".
15Offence to take interstate water without approval of Minister
In section 33AF of the Principal Act, for "under a right in another State or a Territory of the Commonwealth that is an equivalent right to a water share" substitute "under a right to take water in another State or a Territory of the Commonwealth".
16Approval of Minister to taking of interstate water
(1)In section 33AG(1) of the Principal Act, after "on application" insert "under subsection (1A)".
(2)After section 33AG(1) of the Principal Act insert—
"(1A)The holder of an equivalent interstate right may apply for approval under subsection (1) to take water under that right from a declared water system.".
(3)Section 33AG(2)(d) of the Principal Act is repealed.
(4)After section 33AG(2) of the Principal Act insert—
"(3)An equivalent interstate right that is the equivalent of a water share and that is approved under subsection (1), on approval is taken to be a water share, for the purposes of taking water under water allocations under the water share.
(4)An equivalent interstate right that is the equivalent of a water allocation and that is approved under subsection (1), on approval is taken to be a water allocation issued under a water share.".
17Effect of death of person who holds water allocation
In section 33AVA(1)(a)(ii) of the Principal Act, for "standing direction" substitute "standing assignment".
18Application for review of certain Ministerial decisions
In section 33AX(ea) of the Principal Act, for "standing direction" substitute "standing assignment".
19Section 84A substituted
For section 84A of the Principal Act substitute—
"84AObject of this Part
The object of this Part is to provide for a Victorian water register, being—
(a)records and information kept by various recording bodies relating to water-related rights, entitlements and other authorisations in Victoria; and
(b)a centralised system for the records and information so kept.".
20Purpose of water register
In section 84B of the Principal Act, for paragraphs (a) and (b) substitute—
"(a)facilitating the monitoring of, and reporting in relation to, records and information about—
(i)water-related rights, entitlements and other authorisations; and
(ii)the allocation and use of water resources; and
(b)facilitating a market for water resources and for water-related rights, entitlements and other authorisations by—
(i)providing records and information about ownership and use of water-related rights entitlements and other authorisations; and
(ii)making some of those records and information available to the public.".
21Section 84C substituted
For section 84C of the Principal Act substitute—
"84C Responsibilities for water register
(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), (3) and (4).
(2)The Registrar is responsible for establishing and maintaining records and information in the water register relating to the details set out in Division 3.
(3)The Minister is responsible for establishing and maintaining records and information in the water register relating to the details set out in Division 4.
(4)An Authority is responsible for establishing and maintaining records and information in the water register relating to the details set out in Division 5, to the extent required for that Authority under that Division.".
22Disclosure of information
(1)In section 84E(1) of the Principal Act—
(a)in paragraph (a), after "carry out its functions" insert ", perform its duties or exercise its powers";
(b)in paragraph (b), after "functions" insert ", to perform the Minister's duties or exercise the Minister's powers".
(2)In section 84E(2) of the Principal Act—
(a)in paragraph (a), after "functions" insert ", to perform the Registrar's duties or exercise the Registrar's powers";
(b)in paragraph (b), after "carry out its functions" insert ", perform its duties or exercise its powers";
(c)in paragraph (c), after "functions" insert ", to perform the Minister's duties or exercise the Minister's powers".
(3)In section 84E(3) of the Principal Act—
(a)in paragraph (a), after "functions" insert ", to perform the Registrar's duties or exercise the Registrar's powers";
(b)in paragraph (b), after "carry out its functions" insert ", perform its duties or exercise its powers".
(4)In section 84E(4) of the Principal Act, after "carrying out its functions" insert ", performing its duties or exercising its powers".
23Functions of Minister as to water register
For section 84EA(2) of the Principal Act substitute—
"(2)The Minister may make a report created under subsection (1) available to the public if the report does not include—
(a)the addresses of individuals; and
(b)any records or information in respect of which a recording body has restricted public access under section 84Y or VCAT has restricted public access under a review under 84Z; and
(c)any records or information that are prescribed under section 84X(2)(a) to not be publicly available.".
24What is recorded in the water register about water shares?
In section 84I of the Principal Act—
(a)in paragraph (c), after "water system" insert "and the water system zone";
(b)paragraph (f) is repealed.
25What is recorded in the water register about licences to take and use water?
After section 84VA(a) of the Principal Act insert—
"(ab)if the licence has been temporarily transferred under section 62, the name and address of the person to whom the licence has been transferred;".
26New sections 84VB and 84VC inserted
After section 84VA of the Principal Act insert—
"84VB What is recorded in the water register about place of take approvals under Part 4AA?
(1)The Minister must ensure that the following details are recorded in the water register about general place of take approvals—
(a)the name and address of the holder of the general place of take approval;
(b)a description of the approved place;
(c)whether the approval is indefinite or for a fixed period;
(d)the amount of water that has been approved under any particular place of take approvals to be taken from the approved place during each water season;
(e)the water use licence or water use registration for the land on which the water, taken at the approved place, is authorised to be used;
(f)the notional rationing rate for the approval—
(i)as fixed under Subdivision 2 of Division 2 of Part 4AA; or
(ii)as varied under that Subdivision (if applicable);
(g)any conditions on the approval, including the condition specified in section 64FH;
(h)any other records or information the Minister considers necessary.
(2)The Minister must ensure that the following details are recorded in the water register about particular place of take approvals—
(a)the name and address of the holder of the particular place of take approval;
(b)a description of the approved place;
(c)the amount of water that may be taken under the water allocation to which the particular place of take approval applies;
(d)the water-use licence or water-use registration for the land on which the water, taken under the water allocation, is to be used.
84VCWhat details about the holders of certain water rights must be recorded in the water register?
The Minister must ensure that the following details are recorded in the water register—
(a)the name and address of the holder of an approved interstate right;
(b)the name and address of a person holding a right to take water under a water allocation that has been assigned under this Act, including by a further or standing assignment;
(c)any other information in relation to any of the details required in a paragraph of this section that the Minister considers necessary.".
27What must an Authority record in the part of the water register for which it is responsible?
(1)In section 84W of the Principal Act—
(a)for "must record and maintain the following records and information" substitute "must ensure that the following details are recorded in the water register";
(b)paragraph (b) is repealed;
(c)for paragraphs (ba), (bb) and (bc), substitute—
"(ba)in relation to each water system for which the Authority is responsible for delivering water—
(i)if the water system is a declared water system, any water taken from the water system by a person; and
(ii)if the water system is a non‑declared water system, any water taken from the water system and any water used by a person—
(A)under a licence to take and use water issued under section 51(1); or
(B)under a registration licence; or
(C)that has been otherwise taken from the system; and".
(2)At the foot of section 84W of the Principal Act insert the following note—
"Note
Any recordings made by an Authority under paragraph (ba) may include estimates of water taken and used by persons under section 142A.".
28What must a Rural Water Authority record in the part of the water register for which it is responsible?
In section 84WA(1) of the Principal Act, for "must record and maintain the following records and information" substitute "must ensure that the following details are recorded in the water register".
29Section 84WB repealed
Section 84WB of the Principal Act is repealed.
30Section 84X substituted
For section 84X of the Principal Act substitute—
"84X What information or records are available from the water register?
(1)Subject to subsection (2), all records and information in the water register are publicly available.
(2)The following records and information are not publicly available from the water register—
(a)any records or any information or any class of records or information which is prescribed by the regulations not to be publicly available;
(b)any records or any information in respect of which a recording body has restricted public access under section 84Y or VCAT has restricted public access under a review under section 84Z.".
31Suppression of certain personal records and information
After section 84Y(6) of the Principal Act insert—
"(7)A recording body that makes a suppression decision under this section must record that decision in the part of the register for which the recording body has responsibility.".
Part 3—Places, rates and times of taking water
Division 1—New Part 4AA inserted
32New Part 4AA inserted
After section 64F of the Principal Act insert—
"Part 4AA—Places, rates and times of taking of water
Division 1—Preliminary
64FAInterpretation
In this Part—
Authority means a water corporation empowered to carry out any function in relation to water delivery or irrigation;
maximum rate of take declaration means a declaration under section 64FI;
prohibition determination means a determination made under section 64FZE;
related water-use licence or water-use registration, in relation to a general place of take approval, means a water-use licence or a water-use registration, where the land that is the subject of the licence or registration is land on which it is physically possible to use water taken from the approved place;
restriction determination means a determination made under section 64FZC.
Division 2—General place of take approval
Subdivision 1—General
64FBOffence for general place of take approval
(1)A person must not knowingly take water, under a relevant water allocation from a place in a declared water system unless the person has a general place of take approval to take water, under relevant water allocations held by that person from that place, being a taking that results in—
(a)land, works or water being seriously damaged; or
(b)another person suffering substantial economic loss.
Penalty:For an individual, 10 years imprisonment or 1200 penalty units or both;
For a body corporate, 6000 penalty units.
Note
Section 297 applies to an offence against this subsection.
(2)A person must not recklessly take water, under a relevant water allocation from a place in a declared water system unless the person has approval under a general place of take approval to take water, under relevant water allocations held by that person from that place, being a taking that results in—
(a)land, works or water being seriously damaged; or
(b)another person suffering substantial economic loss.
Penalty:For an individual, 5 years imprisonment or 600 penalty units or both;
For a body corporate, 3000 penalty units.
Note
Section 297 applies to an offence against this subsection.
(3)A person must not take water, under a relevant water allocation, from a place in a declared water system unless the person has approval under a general place of take approval to take water, under relevant water allocations held by that person from that place.
Penalty:For an individual, 240 penalty units;
For a body corporate, 1200 penalty units.
Note
Section 297 applies to an offence against this subsection.
64FCGiving general place of take approval
(1)On application under section 64FD, the Minister may give approval to the applicant to take water, under relevant water allocations that are held or that may be held by that person, from a place in a declared water system.
(2)In giving an approval under subsection (1) the Minister—
(a)must apply any relevant rules made under Division 4; and
(b)may have regard to any other matters that the Minister considers relevant.
64FDApplication for general place of take approval
(1)A person may apply to the Minister for a general place of take approval in relation to water to be taken under relevant water allocations that are or may be held by the applicant.
(2)The applicant must, in the Minister's reasonable belief, be authorised or be likely to be authorised to use water taken from the proposed approved place on land under a related water-use licence or water-use registration because the applicant—
(a)holds or is likely to hold such a related water-use licence or water-use registration; or
(b)has the consent of the holder of such a related water-use licence or water-use registration to so use water.
(3)Subsection (2) does not apply if an applicant under subsection (1) is a person who holds a bulk entitlement or environmental entitlement.
64FECessation of general place of take approval
(1)A general place of take approval remains in force until whichever of the following first occurs—
(a)the end of the period, if any, specified by the Minister in the approval as the period for which the approval remains in force;
(b)the approval is cancelled by the Minister under section 64FR or 64FS;
(c)in relation to the approval—
(i)the holder—
(A)is not the holder of a related water-use licence or water‑use registration that authorises water, taken from the approved place, to be used on the land specified in the licence or registration; or
(B)does not have the consent of the holder of such a water-use licence or water-use registration to so use water; and
(ii)either—
(A)there is no notional rationing rate fixed to the approval; or
(B)the notional rationing rate fixed to the approval is zero.
(2)Subsection (1)(c) does not apply if the person holding the approval is the holder of a bulk entitlement or an environmental entitlement.
64FFConditions on general place of take approval
(1)A general place of take approval is subject to—
(a)the conditions set out in this Part; and
(b)any conditions fixed by the Minister; and
(c)any prescribed conditions.
(2)If there is any inconsistency between the terms and conditions of any licence under section 67 that the holder of a general place of take approval is relying on to take water from the approved place and the terms and conditions of the approval, the terms and conditions of the approval prevail.
64FGOffence to fail to comply with a condition of a general place of take approval
The holder of a general place of take approval must not fail to comply with any condition that applies to the general place of take approval.
Penalty:For an individual, 120 penalty units;
For a body corporate, 600 penalty units.
Note
Section 297 applies to an offence against this subsection.
64FHMaximum rate of take condition
(1)A general place of take approval is subject to the condition that the holder of the approval must not take water at a rate that exceeds the maximum rate of take for the approval.
(2)In this section—
maximum rate of take, in relation to a general place of take approval, means the maximum rate at which the holder of the approval can take water from the approved place as fixed under a declaration under section 64FI, or as varied under section 64FM or varied as a result of a transfer under section 64FN.
64FIMaximum rate of take declaration
(1)The Minister, by declaration, may fix—
(a)a maximum rate at which water may be taken under each general place of take approval in the water system or the part of the water system specified in the declaration; or
(b)a variation of a maximum rate that applies under paragraph (a).
(2)A declaration under subsection (1) must specify the water system or the part of the water system to which it applies.
(3)In making a declaration under subsection (1), the Minister must apply any relevant rules made under Division 4.
64FJDetermination of maximum rate of take
The maximum rate of take determined under a declaration under section 64FI(1) may be either or both of the following—
(a)a maximum rate that water can be taken on a daily basis;
(b)a maximum rate that water can be taken over any period determined by the Minister.
64FKProcess for maximum rate of take declaration
(1)A maximum rate of take declaration must be published in the Government Gazette.
(2)The Minister must give a copy of a maximum rate of take declaration to the Authority responsible for the area to which the declaration applies.
(3)The Authority responsible for the area to which the declaration applies must give a copy of the declaration to each person holding a general place of take approval to which the declaration applies.
(4)A maximum rate of take declaration may be made by reference to individual general place of take approvals or by reference to a class of general place of take approval.
(5)A maximum rate of take declaration has effect on the day specified by the Minister in the declaration, which must not be earlier than 14 days after the declaration is made.
64FLProcess before making maximum rate of take declaration
If the Minister proposes to make a maximum rate of take declaration the Minister must—
(a)at least 28 days before making the declaration, cause notice of the proposal to be published on the Department's Internet site; and
(b)require the Authority responsible for the area to which the proposed declaration will apply, at least 28 days before the Minister makes the declaration, to publish notice of the proposal on the Authority's Internet site.
64FMVariation of maximum rate of take on application by approval holder
(1)On receiving an application under this section, the Minister may vary all or part of the maximum rate of take that applies to a general place of take approval held by the applicant.
(2)In deciding whether to make a variation under subsection (1), the Minister—
(a)must apply any relevant rules made under Division 4; and
(b)may have regard to any other matter the Minister considers relevant.
(3)The holder of general place of take approval may apply to the Minister to vary the maximum rate of take under subsection (1).
64FNTransfer of maximum rate of take on application by approval holders
(1)On receiving an application under this section, the Minister may transfer all or part of the maximum rate of take that applies to a general place of take approval held by one applicant to a general place of take approval held by the other applicant.
(2)The holders of general place of take approvals may apply to the Minister to transfer under subsection (1) all or part of the maximum rate of take of one approval to another approval.
(3)In deciding whether to transfer a maximum rate of take under subsection (1), the Minister—
(a)must apply any relevant rules made under Division 4; and
(b)may have regard to any other matter the Minister considers relevant.
64FOTransfer of general place of take approval to another person
(1)On receiving an application under this section, the Minister may transfer a general place of take approval from the holder to another person.
(2)In deciding whether to transfer a general place of take approval under subsection (1), the Minister—
(a)must apply any relevant rules made under Division 4; and
(b)may have regard to any other matter the Minister considers relevant.
(3)The holder of a general place of take approval may apply to the Minister for a transfer under subsection (1).
(4)If the person to whom the approval is to be transferred is not the holder of a bulk entitlement or an environmental entitlement, the person must satisfy the requirements of section 64FD(2).
64FPVariation of general place of take approval
(1)On receiving an application under this section, the Minister may vary a general place of take approval, other than the notional rationing rate fixed under Subdivision 2.
Note
For variation of the notional rationing rate on application, see section 64FY.
(2)In deciding whether to make a variation under subsection (1), the Minister—
(a)must apply any relevant rules made under Division 4; and
(b)may have regard to any other matter the Minister considers relevant.
(3)The holder of a general place of take approval may apply to the Minister for a variation under subsection (1).
64FQApproved place must not be changed
To avoid doubt, nothing in this Part is to be taken to empower a change (whether by way of transfer, variation or otherwise) of the approved place for a general place of take approval to another place.
64FRCancellation of general place of take approval on application
(1)On receiving an application under this section, the Minister may cancel a general place of take approval.
(2)The holder of a general place of take approval may apply to the Minister for cancellation of the approval.
64FSCancellation of general place of take approval on Minister's own motion
(1)The Minister, on the Minister's own motion, may cancel a general place of take approval if the Minister reasonably believes that the holder of the approval has not taken water from the approved place under the approval for—
(a)a period of 10 or more years; or
(b)if a lesser period is prescribed, that period.
(2)The Minister, on the Minister's own motion, may cancel a general place of take approval, if the Minister reasonably believes that the holder of the approval is not authorised to use water taken from the approved place on land under a related water-use licence or water-use registration because the holder—
(a)does not hold such a related water-use licence or water-use registration; and
(b)does not have the consent of the holder of such a related water-use licence or water-use registration to so use water.
(3)Subsection (2) does not apply if the holder of the approval is the holder of a bulk entitlement or an environmental entitlement.
(4)When deciding whether or not to cancel a general place of take approval, the Minister—
(a)must have regard to any submissions made under section 64FT(3) within the required time; and
(b)must apply any relevant rules made under Division 4; and
(c)may have regard to any other matter the Minister considers relevant.
(5)The Minister must notify the holder of the approval of the Minister's decision as to whether or not to cancel the approval.
64FTProcess before cancelling approval
(1)If the Minister proposes to cancel a general place of take approval under section 64FS, before cancelling the approval, the Minister must give notice of the proposal to cancel the approval to the holder of the approval.
(2)The notice under subsection (1)—
(a)must set out the reason for proposing to cancel the approval; and
(b)invite written submissions to be made to the Minister within the time specified in subsection (3).
(3)A person who has received notice under subsection (1) may make written submissions to the Minister on the proposal within 35 days of receiving the notice.
Subdivision 2—Notional rationing rate
64FUFixing a notional rationing rate when giving approval
(1)The Minister must fix a notional rationing rate for a general place of take approval on giving the approval, if the approval is for a place to which either of the following applies—
(a)the place is not in an irrigation district;
(b)the place is in a rationing area.
(2)In fixing a notional rationing rate under subsection (1) the Minister—
(a)must apply any relevant rules made under Division 4; and
(b)may fix a notional rationing rate of zero.
(3)The Minister must specify the notional rationing rate fixed under subsection (1) in the approval.
64FVFixing notional rationing rates in irrigation districts
(1)The Minister, by declaration, may—
(a)declare all or part of one or more declared water systems that wholly or partly comprise irrigation districts to be a rationing area; and
(b)vary all general place of take approvals in an area declared under paragraph (a) by fixing a notional rationing rate for each approval.
(2)A declaration under subsection (1) must be published in the Government Gazette.
(3)The Minister must give a copy of a declaration under subsection (1) to the Authority responsible for the area to which the declaration applies.
(4)The Authority responsible for the area to which the declaration applies must give notice of the declaration to each person holding a general place of take approval in the area.
(5)A variation under subsection (1) may be made by reference to individual approvals or by reference to a class of approval.
(6)A declaration under this section has effect on the day specified by the Minister in the declaration, which must not be earlier than 14 days after the declaration is made.
64FWProcess before making a notional rationing rate declaration
(1)If the Minister proposes to make a notional rationing rate declaration, before making the declaration, the Minister must consult with the Authority responsible for the area to which the proposed declaration will apply.
(2)After consulting with the Authority, the Minister must—
(a)cause notice of the proposal to be published on the Department's Internet site; and
(b)require the Authority—
(i)to publish notice of the proposal on the Authority's Internet site; and
(ii)to give notice of the proposal to each person holding a general place of take approval in the area.
(3)A notice under subsection (2)—
(a)must invite written submissions to be made to the Minister within the time specified in subsection (4); and
(b)for notice given under subsection (2)(b), must set out details of the proposal, in particular details of the notional rationing rate that is proposed to be fixed to each general place of take approval in the area.
(4)A person affected by the proposal may make written submissions to the Minister on the proposal within 35 days of receiving the notice.
(5)Before making a notional rationing rate declaration, the Minister must have regard to any submissions made under subsection (4) within the required time.
64FXTransfer of notional rationing rate on application by approval holders
(1)On receiving an application under this section, the Minister may transfer all or part of the notional rationing rate that applies to a general place of take approval held by one applicant to a general place of take approval held by the other applicant.
(2)In deciding whether to transfer a notional rationing rate under subsection (1), the Minister—
(a)must apply any relevant rules made under Division 4; and
(b)may have regard to any other matter the Minister considers relevant.
(3)The holders of general place of take approvals may apply to the Minister to transfer the notional rationing rate under subsection (1).
(4)A transfer under this section may be for a limited or an unlimited period and the transfer must specify the period that it is for.
64FYVariation of notional rationing rate on application by approval holder
(1)On receiving an application under this section, the Minister may vary all or part of the notional rationing rate that applies to a general place of take approval held by the applicant.
(2)In deciding whether to vary a notional rationing rate under subsection (1), the Minister—
(a)must apply any relevant rules made under Division 4; and
(b)may have regard to any other matter the Minister considers relevant.
(3)The holder of a general place of take approval may apply to the Minister to vary the notional rationing rate under subsection (1).
64FZVariation of notional rationing rates by the Minister
(1)The Minister, by declaration, may vary all general place of take approvals in a rationing area by reducing the notional rationing rate for each approval in the area, if the Minister has, under the rules, set an upper limit on the notional rationing rates for those approvals.
(2)The Minister must ensure that the variation of each notional rationing rate under the declaration under subsection (1) is in the same proportion.
(3)A declaration under subsection (1) must be published in the Government Gazette.
(4)The Minister must give a copy of a declaration under subsection (1) to the Authority responsible for the rationing area.
(5)The Authority responsible for the rationing area must give a copy of the declaration to each person holding a general place of take approval that is affected by the declaration.
(6)A declaration under subsection (1) may be made by reference to individual approvals or by reference to a class of approval.
(7)A declaration under subsection (1) has effect on the day specified by the Minister in the declaration, which must not be earlier than the day on which the declaration is made.
64FZAProcess before making a declaration varying notional rationing rates
(1)If the Minister proposes to make a variation of notional rationing rate under section 64FZ the Minister must, at least 28 days before making the declaration—
(a)cause notice of the proposal to be published on the Department's Internet site; and
(b)require the Authority responsible for the rationing area to publish notice of the proposal on the Authority's Internet site.
(2)The notice under subsection (1) must set out details of the proposal, in particular details of the method by which notional rationing rates to which the proposal applies will be varied.
Subdivision 3—Restriction determinations and prohibition determinations
64FZBOffence for contravening a determination under this Subdivision
(1)A person to whom a determination under this Subdivision applies must not knowingly contravene the determination, being a contravention that results in—
(a)land, works or water being seriously damaged; or
(b)another person suffering substantial economic loss.
Penalty:For an individual, 10 years imprisonment or 1200 penalty units or both;
For a body corporate, 6000 penalty units.
Note
Section 297A applies to an offence against this subsection.
(2)A person to whom a determination under this Subdivision applies must not recklessly contravene the determination, being a contravention that results in—
(a)land, works or water being seriously damaged; or
(b)another person suffering substantial economic loss.
Penalty:For an individual, 5 years imprisonment or 600 penalty units or both;
For a body corporate, 3000 penalty units.
Note
Section 297A applies to an offence against this subsection.
(3)A person to whom a determination under this Subdivision applies must not contravene the determination.
Penalty:For an individual, 240 penalty units;
For a body corporate, 1200 penalty units.
Note
Section 297A applies to an offence against this subsection.
64FZCMaking a restriction determination
(1)The Minister may make a determination that restricts each holder of a general place of take approval in a rationing area from taking water under relevant water allocations from the approved place at a rate that exceeds the rate determined in accordance with the determination.
(2)A restriction under a determination under subsection (1) applies for either or both of the following—
(a)the period or periods of time specified in the determination, which may be specified as the dates between which the period or periods begin and end;
(b)in the circumstances specified in the determination, which may be specified by reference to when the circumstances begin and end.
(3)A restriction under a determination under subsection (1) may apply differently for different periods of time or in different circumstances.
(4)If a restriction under a determination under subsection (1) applies for one or more periods of time, the restriction must not apply for more than one water season.
(5)For the purposes of subsection (1) if the general place of take approvals are subject to a notional rationing rate, the restriction must be expressed as limiting the rate at which water may be taken either—
(a)to the full amount of the notional rationing rate; or
(b)to the portion of the notional rationing rate set out in the determination.
64FZDMatters that apply to restriction determinations
(1)The Minister must not make a restriction determination unless the Minister reasonably believes that—
(a)the amount of water that can be delivered to a rationing area on a daily basis or throughout a water season is not enough, or soon will not be enough to meet all or any of the following—
(i)the demand to take water from the approved places in the rationing area;
(ii)the commitments to deliver water downstream of the area;
(iii)any water system management requirements; or
(b)the prescribed circumstances exist.
(2)In deciding whether to make a determination under subsection (1), the Minister must apply any relevant rules made under Division 4.
(3)A restriction determination must specify any period or circumstance when it applies.
(4)A restriction determination must specify the rationing area to which the restriction applies.
64FZEMaking a prohibition determination
(1)The Minister may make a determination that prohibits each holder of a general place of take approval in the area specified in the determination from taking water from the approved place under any relevant water allocations held by the holder.
(2)A determination under subsection (1) applies to—
(a)the whole or the part of a declared water system specified in the determination; and
(b)all holders of general place of take approvals in the area specified in the determination, or that class of such holders that is specified in the determination.
(3)A prohibition under a determination under subsection (1) applies for either or both of the following—
(a)the period or periods of time specified in the determination, which may be specified as the dates between which the period or periods begin and end;
(b)in the circumstances specified in the determination, which may be specified by reference to when the circumstances begin and end.
(4)A prohibition under a determination under subsection (1) may apply differently for different periods of time or in different circumstances.
(5)If a prohibition under a determination under subsection (1) applies for one or more periods of time, the prohibition must not apply for more than one water season.
64FZFMatters that apply to prohibition determinations
(1)The Minister must not make a prohibition determination unless the Minister reasonably believes that the prescribed circumstances exist.
(2)In deciding whether to make a prohibition determination, the Minister must apply any relevant rules made under Division 4.
(3)A prohibition determination must specify the water system or the part of the water system to which the prohibition applies.
(4)A prohibition determination must specify any period or circumstance when it applies.
64FZGPublication and period of operation of determinations
(1)A determination under this Subdivision must be in writing and must be published—
(a)on the Internet sites of the Department and the Authority responsible for the area to which the determination applies; and
(b)in the Government Gazette.
(2)A determination under this Subdivision comes into operation on the day specified in the determination which must be after the day on which it is published in the Government Gazette.
(3)A determination under this Subdivision—
(a)remains in operation until it is revoked; and
(b)must be revoked in the same manner as that in which it is made.
64FZHNon-application of determination
A determination under this Subdivision may specify persons or classes of person to whom the determination does not apply.
Division 3—Particular place of take approval
64FZIOffence for particular place of take approval
(1)A person must not knowingly take water under a relevant water allocation from an approved place in a declared water system unless the person has a particular place of take approval to take water under that relevant water allocation from that place, being a taking that results in—
(a)land, works or water being seriously damaged; or
(b)another person suffering substantial economic loss.
Penalty:For an individual, 10 years imprisonment or 1200 penalty units or both;
For a body corporate, 6000 penalty units.
Note
Section 297A applies to an offence against this subsection.
(2)A person must not recklessly take water under a relevant water allocation from an approved place in a declared water system unless the person has a particular place of take approval to take water under that relevant water allocation from that place, being a taking that results in—
(a)land, works or water being seriously damaged; or
(b)another person suffering substantial economic loss.
Penalty:For an individual, 5 years imprisonment or 600 penalty units or both;
For a body corporate, 3000 penalty units.
Note
Section 297A applies to an offence against this subsection.
(3)A person must not take water under a relevant water allocation from an approved place in a declared water system unless the person has a particular place of take approval to take water under that relevant water allocation from that place.
Penalty:For an individual, 240 penalty units;
For a body corporate, 1200 penalty units.
Note
Section 297A applies to an offence against this subsection.
64FZJGiving particular place of take approval
(1)On application under section 64FZK, the Minister may give approval to the holder of a relevant water allocation, or a class of relevant water allocation, to take water under that water allocation or class of water allocation from a place in a declared water system.
(2)The Minister must not give an approval under subsection (1) unless the holder of the relevant water allocation also holds a general place of take approval for that place.
(3)In giving an approval under subsection (1) the Minister—
(a)must apply any relevant rules made under Division 4; and
(b)may have regard to any other matters that the Minister considers relevant.
64FZKApplication for particular place of take approval
The holder of a relevant water allocation may apply to the Minister for a particular place of take approval.
64FZLPeriod for particular place of take approval
A particular place of take approval ceases to have effect if—
(a)the holder of the approval ceases to hold the water allocation or the class of water allocation to which the approval applies; or
(b)the water allocation or all water allocations in the class of water allocation ceases to have effect; or
Note
A water allocation will cease to have effect if—
(a)all water under the allocation has been taken; or
(b)water has not been taken under the water allocation before the end of the water season for the allocation and has not been authorised to be taken in a subsequent water season; or
(c)a water allocation has been deducted by the Minister under Division 3 of Part 4.
(c)a different particular place of take approval is given for the water allocation or the class of water allocation; or
(d)the holder of the approval ceases to hold the general place of take approval for which the approval was given.
Division 4—General
64FZMReview by VCAT
A person affected by a decision of the Minister under any of the following provisions may apply to the Tribunal for review of that decision—
(a)section 64FC;
(b)section 64FF(1)(b);
(c)section 64FM;
(d)section 64FN;
(e)section 64FO;
(f)section 64FP;
(g)section 64FS;
(h)section 64FU(1);
(i)section 64FV;
(j)section 64FZ;
(k)section 64FZJ.
64FZNTime period for making application for review
An application for review under section 64FZM must be made within
28 days of the later of—
(a)the day on which the decision is made; or
(b)if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
64FZOApplications under this Part
An application to the Minister under this Part must—
(a)be in the form and made in the manner approved by the Minister; and
(b)contain any particulars required by the rules made under section 64FZP; and
(c)be accompanied by the information or documents required by the Minister; and
(d)be accompanied by the fee determined by the Minister.
64FZPRule making powers for approvals and determinations under this Part
(1)The Minister, by Order published in the Government Gazette, may set out rules—
(a)for or with respect to applications for approvals under this Part; and
(b)for or with respect to maximum rate of take conditions on general place of take approvals, including but not limited to—
(i)determining times, places and circumstances in which maximum rate of take conditions apply to approvals; and
(ii)the method for determining maximum rate of take for maximum rate of take conditions; and
(iii)upper limits on maximum rate of take for maximum rate of take conditions; and
(c)for or with respect to notional rationing rates that are fixed to general place of take approvals, including but not limited to—
(i)matters to be taken into account in fixing notional rationing rates; and
(ii)upper limits on notional rationing rates; and
(iii)transferring notional rationing rates applying to approvals that have been cancelled; and
(d)for or with respect to prohibition determinations and restriction determinations, including but not limited to, the matters that must be specified in determinations; and
(e)for or with respect to the circumstances in which consent by any one or more of the following persons or bodies is required before an approval under this Part may be given—
(i)the Authority;
(ii)the resource manager appointed under section 43A;
(iii)a storage manager;
(iv)the Murray-Darling Basin Authority established under the Water Act 2007 of the Commonwealth;
(v)any person or body in another State or a Territory of the Commonwealth; and
(f)as to the circumstances in which the Minister may give or refuse to give approvals under this Part; and
(g)as to any other matters the Minister is authorised to make rules for under this Part.
(2)An Order under this section may be amended or revoked in the same manner as that in which it is made.
64FZQMatters to be considered in making rules under section 64FZP
The Minister, in making the rules under section 64FZP may consider—
(a)the provisions of any agreements entered into under section 33AE that relate to dealings in rights to take water and the place of taking of water; and
(b)the Basin Plan and any relevant Basin water resource plans; and
(c)any adverse effect that the rules are likely to have on any of the following in any water system to which the rules apply—
(i)existing authorised uses in the system;
(ii)any waterway or aquifer in the system;
(iii)the maintenance of the environmental water reserve in accordance with the environmental water reserve objective;
(iv)the existing and projected availability of water in the system; and
(d)the need to protect the environment, including the riverine and riparian environment; and
(e)any other matters that the Minister thinks fit to have regard to.".
33Heading substituted
For the heading to Division 5 of Part 4 of the Principal Act substitute—
"Part 4AB—Seasonal determinations".
Division 2—Amendments consequent on the enactment of new Part 4AA
34Section 9 substituted
For section 9 of the Principal Act substitute—
"9 Authorities' rights to water
(1)An Authority, within the meaning of Division 1 of Part 4, has the right to take the amounts of water that are made available to it—
(a)under a bulk entitlement; or
(b)under any other authorisation, licence or right under this Act.
(2)An Authority, within the meaning of Division 1 of Part 4, has the right to use water taken by it under a right conferred by subsection (1)—
(a)in the case of an Authority referred to in paragraph (a) of the definition of Authority in section 34(1), for any purpose connected with the exercise of its functions under this Act; or
(b)in the case of a generation company, for any purpose connected with the exercise of its functions or powers; or
(c)in the case of an Authority referred to in paragraph (d) of the definition of Authority in section 34(1), for any public purpose.
(3)The rights conferred by this section are subject to any express limitations provided in—
(a)this Act; or
(b)any other Act; or
(c)the conditions attached to the bulk entitlement.
9ARights to water of Water Holder
(1)The Water Holder has the right to take the amounts of water that are made available to it—
(a)under an environmental entitlement; or
(b)under any other authorisation, licence or right under this Act.
(2)The Water Holder has the right to use water taken by it under a right conferred by subsection (1) for any purpose connected with carrying out the objectives of the Water Holder under section 33DC or the exercise of the functions of the Water Holder under section 33DD.
(3)The rights conferred by this section are subject to any express limitations provided in—
(a)this Act; or
(b)any other Act; or
(c)the conditions attached to the environmental entitlement or other authorisation, licence or right.
9BRights subject to certain restrictions and prohibitions
(1)Any relevant right to take water under this Act is subject to any provision of this Act or any legislative instrument made under this Act—
(a)that regulates the following—
(i)places of taking of water;
(ii)rates of taking of water;
(iii)taking of water at or during any time or in any circumstances; or
(b)that prohibits taking water at or during any time or in any circumstances; or
(c)that restricts the obligation or duty of an Authority to deliver water.
(2)In this section—
relevant right to take water means a right to take water under this Act, whether under—
(a)a water allocation under a water share, a bulk entitlement or an environmental entitlement; or
(b)a licence under section 51.
(3)To avoid doubt, this section is in addition to sections 9(3) and 9A(3).".
35Repeal of certain provisions related to water shares
(1)Section 33F(3) of the Principal Act is repealed.
(2)Section 33H(b) of the Principal Act is repealed.
36Limited term transfers of rights to future water allocations under water shares
For section 33T(4) of the Principal Act substitute—
"(4)A transfer under this section may specify that water taken under the transferred water allocations may be taken from—
(a)a water system that is not the associated water system for the water share; or
(b)a water system zone that is not the zone applying to the transferred water allocations immediately before the transfer.
Note
Despite subsection (4) approvals under Part 4AA are required before water can be taken under a transferred water allocation.".
37Standing assignments of future allocations under water shares
For section 33TA(3) of the Principal Act substitute—
"(3)An assignment under this section may specify that water taken under the assigned water allocations may be taken from—
(a)a water system that is not the associated water system for the water share under which the water allocations are made; or
(b)a water system zone that is not the zone applying to the assigned water allocations immediately before the assignment.
Note
Despite subsection (3), approvals under Part 4AA are required before water can be taken under an assigned water allocation.".
38Assignment of water allocation
(1)For section 33U(3) of the Principal Act, substitute—
"(3)An assignment under this section has effect from the date specified in the assignment.".
(2)For section 33U(4) of the Principal Act substitute—
"(4)An assignment under this section may specify that water taken under the assigned water allocation may be taken from—
(a)a water system that is not the associated water system for the water share under which the water allocations are made; or
(b)a water system zone that is not the zone applying to the assigned water allocations immediately before the assignment.
Note
Despite subsection (4), approvals under Part 4AA are required before water can be taken under an assigned water allocation.".
(3)Section 33U(5) of the Principal Act is repealed.
39Further assignment of water allocation
(1)For section 33V(2) of the Principal Act substitute—
"(2)An assignment under this section may specify that water taken under the assigned water allocation may be taken from—
(a)a water system that is not the associated water system for the water share under which the water allocations are made; or
(b)a water system zone that is not the zone applying to the assigned water allocations immediately before the assignment.
Note
Despite subsection (4), approvals under Part 4AA are required before water can be taken under a further assignment of water allocation.".
(2)For section 33V(3) of the Principal Act, substitute—
"(3)An assignment under this section has effect from the date specified in the assignment.".
40Section 33AH repealed
Section 33AH of the Principal Act is repealed.
41Section 33AI repealed
Section 33AI of the Principal Act is repealed.
42Division 10 of Part 3A repealed
Division 10 of Part 3A of the Principal Act is repealed.
43Effect of death of person who holds a water allocation
After section 33AVA(1) of the Principal Act insert—
"(1A)The water allocation or assigned water allocation forms part of the estate of the deceased person.".
44Application for Tribunal to review certain decisions of the Minister as to water shares
(1)For the heading to section 33AX of the Principal Act substitute—
"Application for Tribunal to review decisions under this Part".
(2)In section 33AX(i) of the Principal Act omit "or section 33AI".
45Rule making powers for water shares
Section 33AZ(1)(f) of the Principal Act is repealed.
46Definition and disallowance
In section 34(1) of the Principal Act, in paragraph (c) of the definition of Authority, omit "within the meaning of the Electricity Industry Act 2000".
47Section 34B repealed
Section 34B of the Principal Act is repealed.
48Assignment of water allocation
For section 46(3) of the Principal Act, substitute—
"(3)An assignment under this section has the effect of assigning water made available under the water allocation to the person to whom the assignment is made from the date specified in the assignment.".
49Further assignment of water allocation
For section 46A(2) of the Principal Act, substitute—
"(2)An assignment under this section has the effect of assigning water made available under the water allocation to the person to whom the assignment is made from the date specified in the assignment.".
50Offence to give an assignment without Ministerial approval
(1)In section 46B(1) of the Principal Act, omit ", within the meaning of the Electricity Industry Act 2000,".
(2)In section 46B(2) of the Principal Act, after "the whole or a part of" insert "a water allocation under".
51New section 46CA inserted
After section 46C of the Principal Act insert—
"46CA Effect of death of person who holds a water allocation
(1)This section applies on the death of a person who has water available to take under a water allocation (under a bulk entitlement or part of a bulk entitlement) assigned to the person under section 46 or further assigned to the person under section 46A.
(2)The water allocation forms part of the estate of the deceased person.
(3)An assignment of the water allocation under section 46 or a further assignment of the water allocation under section 46A may be made by—
(a)if the deceased person was the only person who could have taken water under the water allocation—a person authorised to act on behalf of the estate of the deceased person; or
(b)if the deceased person was not the only person who could have taken water under the water allocation—a person authorised to act on behalf of the estate of the deceased person together with the other persons.".
52Section 48BA substituted
For section 48BA of the Principal Act substitute—
"48BA Purpose of assigned entitlement
A person to whom a water allocation has been assigned under section 48L or 48M, despite the purpose set out in section 48B(2), may apply water under the assigned water allocation for any purpose.".
53Assignment of water allocation
For section 48L(1B) of the Principal Act, substitute—
"(1B)An assignment under this section has the effect of assigning water made available under the water allocation to the person to whom the assignment is made from the date specified in the assignment.".
54Further assignment of water allocation
For section 48M(2) of the Principal Act, substitute—
"(2)An assignment under this section has the effect of assigning water made available under the water allocation to the person to whom the assignment is made from the date specified in the assignment.".
55New section 48OAA inserted
After section 48O of the Principal Act insert—
"48OAA Effect of death of person who holds a water allocation
(1)This section applies on the death of a person who has water available to take under a water allocation (under an environmental entitlement or part of an environmental entitlement) assigned to the person under section 48L or further assigned to the person under section 48M.
(2)The water allocation forms part of the estate of the deceased person.
(3)An assignment of the water allocation under section 48L or a further assignment of the water allocation under section 48M may be made by—
(a)if the deceased person was the only person who could have taken water under the water allocation—a person authorised to act on behalf of the estate of the deceased person; or
(b)if the deceased person was not the only person who could have taken water under the water allocation—a person authorised to act on behalf of the estate of the deceased person together with the other persons.".
56Conditions of licence
In section 56(5) and (6) of the Principal Act omit "within the meaning of the Electricity Industry Act 2000".
57Section 64K repealed
Section 64K of the Principal Act is repealed.
58Application of this Part
In section 185(3) of the Principal Act, omit "within the meaning of the Electricity Industry Act 2000".
59Definitions and application
In section 220(1) of the Principal Act, in the definition of delivery determination, after "section 223" insert " and, where the case so requires, means such a determination as amended or varied under section 224, 225 or 226".
60Authority to fix terms and conditions for the service of delivering water
In section 227(4) of the Principal Act, after paragraph (b) insert—
"(ba)rules for restricting delivery as a consequence of the operation of any provision of this Act or any legislative instrument made under this Act—
(i)that regulates the following—
(A)places of taking of water;
(B)rates of taking of water;
(C)taking of water at or during any time or in any circumstances; or
(ii)that prohibits taking water at or during any time or in any circumstances; and".
Part 4—Further amendment of the Water Act 1989
Division 1—New Division 3 of Part 4 inserted
61New Division 3 of Part 4 inserted
After Division 2 of Part 4 of the Principal Act insert—
"Division 3—Powers of Minister where water taken exceeds authorised amount
64ATaking unauthorised amount of water from approved place
(1)Subsection (2) applies if the Minister reasonably believes that the holder of a general place of take approval has taken from the approved place an amount of water that has exceeded the amount the holder was—
(a)for a general place of take approval to take water at the place specified in the application; and
(b)for a particular place of take approval to take water under the relevant water allocation or class of relevant water allocation to which the application applies at the place specified in the application.
365Applications under section 64K
An application under section 64K(4), as in force immediately before the commencement day, for an approval under section 64K(1) or (1A), that is on foot immediately before the commencement day, is taken to be an application—
(a)for a general place of take approval to take water at the place specified in the application; and
(b)for a particular place of take approval to take water under the relevant water allocation or class of relevant water allocation to which the application applies at the place specified in the application.
366Regulatory impact statement not required for first rules made under section 64FZP
(1)Section 12E of the Subordinate Legislation Act 1994 does not apply to any Order made under section 64FZP that comes into effect on the commencement day.
(2)An Order referred to in subsection (1) expires 12 months from the day on which notice of its making is published in the Government Gazette.
367Conversion rules
(1)Before the commencement day, the Minister may make a determination setting out the rules for the determination, application or implementation of rights and approvals to which this Division applies, including any terms and conditions of those rights or approvals.
(2)A determination under subsection (1) may provide for—
(a)any procedures that an Authority or the Minister is required to carry out to identify, verify, apportion and calculate information relating to—
(i)rights and approvals to which this Division applies and any terms and conditions of those rights and approvals; and
(ii)any matters that are to be determined under this Division; and
(b)any submission procedures and dispute resolution procedures an Authority, the Minister or the Registrar is required to undertake for the purposes of performing functions under paragraph (a); and
(c)any other matters that are required or permitted to be set out by this Division.
(3)A determination under subsection (1)—
(a)comes into operation on the day specified in the determination; and
(b)expires 4 months after the commencement day.
(4)A determination under subsection (1) must be in writing and notice of the making of the determination and of the day on which it comes into operation must be published in the Government Gazette.
368Minor or technical alterations
(1)The Minister may make any minor or technical alterations to approvals a person is taken to hold under this Part or to licences under section 67 that are necessary to give effect to Part 4AA.
(2)This section is repealed on the first anniversary of the commencement day.
Division 4—Transitional provisions for Part 5 of the 2021 Act
369Effect of change of name of City West Water Corporation
(1)Greater Western Water Corporation is the same body as the body that was, immediately before the commencement of section 63 of the 2021 Act, named City West Water Corporation and, despite the change of name made by that section—
(a)no right, liability, act, matter or thing is affected because of that change of name; and
(b)to avoid doubt, Greater Western Water Corporation is a metropolitan water corporation.
(2)On and from the commencement of section 63 of the 2021 Act, a reference in any Act, subordinate instrument or other document to City West Water Corporation is taken to be a reference to Greater Western Water Corporation, unless the contrary intention appears.".
Part 6—Amendment of Catchment and Land Protection Act 1994
Division 1—Abolition of the Victorian Catchment Management Council
109Definitions
In section 3(1) of the Catchment and Land Protection Act 1994, the definition of Council is repealed.
110Objectives of Act
(1)After section 4(c) of the Catchment and Land Protection Act1994 insert—
"(ca)to provide for the establishment of advisory committees;".
(2)In section 4(d) of the Catchment and Land Protection Act1994 omit "the Victorian Catchment Management Council and".
111Divisions 1 and 1A of Part 2 are repealed
Divisions 1 and 1A of Part 2 of the Catchment and Land Protection Act 1994 are repealed.
112Functions, powers and duties of Authorities
(1)In section 12(1)(c) of the Catchment and Land Protection Act1994, after "plans" insert "and in furthering the objectives of this Act".
(2)In section 12(1)(e) of the Catchment and Land Protection Act 1994 omit all words and expressions from and including "understanding of" and insert—
"understanding of—
(i)the importance of land and water resources, their sustainable use, conservation and rehabilitation; and
(ii)issues relating to catchment management;".
113New Division 4A of Part 2 inserted
After section 19 of the Catchment and Land Protection Act 1994 insert—
"Division 4A—Advisory committees
19AAAdvisory committees established by the Minister
(1)The Minister may establish one or more advisory committees to advise the Minister on any of the following matters in relation to the whole of Victoria or a part or parts of Victoria—
(a)catchment management;
(b)the condition of land and water resources;
(c)priorities for catchment management;
(d)priorities for research and investigation in relation to catchment management;
(e)any other matter the Minister considers appropriate.
(2)In establishing an advisory committee, the Minister, by writing, must specify—
(a)the matters on which the advisory committee is to advise the Minister; and
(b)whether the advisory committee's advice is to relate to the whole of Victoria or a specified part or parts of Victoria.
19ABMembership and procedures of advisory committees established by the Minister
(1)The Minister, by writing, may appoint such members of an advisory committee as the Minister considers appropriate.
(2)The Minister, by writing, may appoint a member of an advisory committee to be the Chairperson of the committee.
(3)The Minister, by writing, may at any time remove from office a member of an advisory committee.
(4)The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of an advisory committee in respect of the office of member.
(5)The Minister may specify requirements, with which an advisory committee must comply, about the following—
(a)quorums;
(b)decision making powers of members;
(c)meeting procedures;
(d)any other matter the Minister considers appropriate.
(6)The Minister may specify requirements under subsection (5) at any time, whether before, on or after the establishment of an advisory committee.
(7)Subject to this Act and any requirements specified under subsection (5), an advisory committee may regulate its own procedure.
(8)A member of an advisory committee is entitled to be paid any remuneration and allowances fixed by the Minister.".
114Guidelines
For section 45(2) of the Catchment and Land Protection Act 1994 substitute—
"(2)In preparing these guidelines, the Minister must consult with any other Minister whose interests the Minister considers are likely to be affected by the guidelines.".
115Action before recommendation
(1)Section 69(2) of the Catchment and Land Protection Act 1994 is repealed.
(2)In section 69(3) of the Catchment and Land Protection Act1994 omit "the Council and".
(3)In section 69(4) of the Catchment and Land Protection Act1994, for "the Council or an Authority under subsection (2) or" substitute "an Authority under subsection".
(4)In section 69(5) of the Catchment and Land Protection Act1994 omit "the Council or".
116Regulations
(1)In section 95(1)(f) of the Catchment and Land Protection Act1994 omit "the Council or".
(2)In section 95(2)(c) of the Catchment and Land Protection Act1994 omit "the Council,".
117Schedule 2—Regional catchment strategies and special area plans
In clause 2(2) of Schedule 2 to the Catchment and Land Protection Act1994, for "Council" substitute "Minister".
Division 2—Change of catchment manager for Port Phillip and Westernport Region
118Definitions
(1)In section 3(1) of the Catchment and Land Protection Act 1994 insert the following definition—
"Port Phillip and Westernport Region means the area determined by the Governor in Council under section 10(1)(a) to be the catchment and land protection region known as the Port Phillip and Westernport Region, as varied by variations under section 10(1)(b) (if any);".
(2)In section 3(1) of the Catchment and Land Protection Act 1994, for the definition of Authority substitute—
"Authority means the following—
(a)a Catchment Management Authority established under Part 2;
(b)Melbourne Water Corporation;".
119Establishment of Authorities
In section 11(1) of the Catchment and Land Protection Act 1994, after "each catchment and land protection region" insert "(other than the Port Phillip and Westernport Region)".
120New section 11A inserted
After section 11 of the Catchment and Land Protection Act 1994 insert—
"11A Melbourne Water Corporation appointed for Port Phillip and Westernport Region
Melbourne Water Corporation is appointed as the Catchment Management Authority for the Port Phillip and Westernport Region.".
121Obligations of Catchment Management Authorities in relation to declared areas
(1)In the heading to section 12AA of the Catchment and Land Protection Act 1994 omit "Catchment Management".
(2)In section 12AA(1) of the Catchment and Land Protection Act 1994—
(a)for "A Catchment Management Authority" substitute "An Authority";
(b)in paragraph (a) omit "Catchment Management";
(c)in paragraph (b) omit "Catchment Management".
(3)In section 12AA(2) of the Catchment and Land Protection Act 1994 omit "Catchment Management".
122Section 12A repealed
Section 12A of the Catchment and Land Protection Act 1994 is repealed.
123Section 12B repealed
Section 12B of the Catchment and Land Protection Act 1994 is repealed.
124Appointment of administrator
After section 13(7) of the Catchment and Land Protection Act 1994 insert—
"(8)This section does not apply to Melbourne Water Corporation.".
125Application of Public Administration Act 2004
At the end of section 14 of the Catchment and Land Protection Act 1994 insert—
"(2)This section does not apply to Melbourne Water Corporation.".
126New section 15AA inserted
After the heading to Division 4 of Part 2 of the Catchment and Land Protection Act 1994 insert—
"15AA Application of Division
This Division does not apply to Melbourne Water Corporation.".
127Power of the Minister to give directions
After section 19A(5) of the Catchment and Land Protection Act 1994 insert—
"(6)The Minister's power to give directions under this section to Melbourne Water Corporation only applies to the performance of Melbourne Water Corporation's functions and the exercise of Melbourne Water Corporation's powers under this Act.".
128Corporate plans
After section 19C(8) of the Catchment and Land Protection Act 1994 insert—
"(9)This section does not apply to Melbourne Water Corporation.".
129Statement of corporate intent: contents
At the end of section 19D of the Catchment and Land Protection Act 1994 insert—
"(2)This section does not apply to Melbourne Water Corporation.".
130Power of delegation
At the end of section 19F of the Catchment and Land Protection Act 1994 insert—
"(2)In this section, in relation to Melbourne Water Corporation, a reference to the board is a reference to the board of directors of Melbourne Water Corporation.".
131Chief Executive Officer
After section 19G(5) of the Catchment and Land Protection Act 1994 insert—
"(6)This section does not apply to Melbourne Water Corporation.".
132Delegation powers of Chief Executive Officer
At the end of section 19H of the Catchment and Land Protection Act 1994 insert—
"(2)This section does not apply to Melbourne Water Corporation.".
133Section 27A repealed
Section 27A of the Catchment and Land Protection Act 1994 is repealed.
134Regulations
In section 95(1)(f) of the Catchment and Land Protection Act 1994, after "an Authority" insert "but, as to Melbourne Water Corporation, only to the extent of procedure as to Melbourne Water Corporation's powers, functions and duties under this Act".
135New Division 1 of Part 11 heading inserted
After the heading to Part 11 of the Catchment and Land Protection Act 1994 insert—
"Division 1—Miscellaneous transitional provisions".
136New Division 2 inserted in Part 11
After section 105 of the Catchment and Land Protection Act 1994 insert—
"Division 2—Transitional provisions—Water and Catchment Legislation Amendment Act 2021
106Definitions
In this Division—
appointed time means the commencement of section 120 of the Water and Catchment Legislation Amendment Act 2021;
new body means Melbourne Water Corporation;
old body means the Port Phillip and Westernport Catchment Management Authority as established under this Act as in force immediately before the appointed time;
transferred employee means an employee transferred under section 108(1).
107Transitional provision—Water and Catchment Legislation Amendment Act 2021
(1)At the appointed time the Port Phillip and Westernport Catchment Management Authority is abolished.
(2)At the appointed time—
(a)any rights, property and assets that immediately before that time were vested in the old body are taken to be vested in the new body; and
(b)any debts, liabilities and obligations of the old body that existed immediately before that time are taken to be the debts, liabilities and obligations of the new body; and
(c)the new body is substituted as a party to any proceedings pending in any court to which the old body was a party immediately before that time; and
(d)the new body is substituted as a party to any arrangement or contract entered into by or on behalf of the old body; and
(e)any reference to the old body in any Act, subordinate instrument or other document, so far as it relates to any period after that time and if not inconsistent with the context or subject matter, must be construed as a reference to the new body.
(3)At the appointed time the regional catchment strategy for the Port Phillip and Westernport Region made by the old body and in force immediately before that time, is taken to be made by Melbourne Water Corporation.
108Transfer of employees of Port Phillip Catchment Management Authority to Melbourne Water Corporation
(1)At the appointed time, persons who were employed by the old body immediately before the appointed time are transferred to the new body.
(2)A transferred employee is taken—
(a)to be employed by the new body—
(i)with effect from the appointed time; and
(ii)on terms and conditions no less favourable than those that applied to the employee immediately before the appointed time; and
(b)to have accrued an entitlement to benefits in connection with that employment that is equivalent to the entitlement that the employee had accrued immediately before the appointed time.
(3)The service of a transferred employee is to be regarded for all purposes as having been continuous with the service of the employee immediately before the appointed time.
(4)A transferred employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of the old body because of the operation of this Part.
(5)A certificate purporting to be signed by the Chief Executive Officer of the new body certifying that a person named in the certificate was, with effect from the relevant date, employed by operation of this section by the new body, is admissible in evidence in any proceedings as evidence of the matters stated in it.
(6)The superannuation entitlements of any transferred employee are to be taken not to be affected by that employee being transferred.
(7)Nothing in this section prevents—
(a)any of the terms and conditions of employment of a transferred employee from being altered by or under any law, award or agreement with effect from any time after the appointed time; or
(b)a transferred employee from resigning or being dismissed at any time after the appointed time in accordance with the then existing terms and conditions of their employment with the new body.".
Division 3—Miscellaneous amendment of Catchment and Land Protection Act 1994
137Boards of Catchment Management Authorities
For section 15(3) of the Catchment and Land Protection Act 1994 substitute—
"(3)More than one half of the members of the board of each Catchment Management Authority must be persons whose principal occupation is—
(a)primary production; or
(b)providing advice about primary production; or
(c)engaging in research about primary production.".
138Section 19B substituted
For section 19B of the Catchment and Land Protection Act 1994 substitute—
"19B Matter to be included in annual report
Each Authority must include in its report of operations prepared under Part 7 of the Financial Management Act 1994, a report on the condition and management of land and water resources in its region and the carrying out of its functions.".
Part 7—Amendment of other Acts
Division 1—Amendment of Confiscation Act 1997
139Amendment of the Confiscation Act 1997
After item 14 of Schedule 1 to the Confiscation Act 1997 insert—
"14A.An offence against any of the following provisions of the Water Act 1989—
(a)section 33E(3) (taking water without authorisation under a water share);
(b)section 63(3) (taking or using water from a non-declared water system);
(c)section 289(3) (taking, using or diverting an Authority's water);
(d)section 289B(3) (interfering with the flow of water under the control and management of an Authority).".
Division 2—Amendment of Water Industry Act 1994
140Definitions
In section 4A(1) of the Water Industry Act1994, paragraph (l) of the definition of Regional Urban Water Authority is repealed.
Division 3—Amendment of Flora and Fauna Guarantee Act 1988 consequent on the abolition of the Victorian Catchment Management Council
141Definitions
In section 3(1) of the Flora and Fauna Guarantee Act 1988, the definition of Victorian Catchment Management Council is repealed.
142Advice
(1)Section 9(1) of the Flora and Fauna Guarantee Act1988 is repealed.
(2)In section 9(2) of the Flora and Fauna Guarantee Act1988, for "The Victorian Catchment Management Council and each" substitute "Each".
143The Committee's final recommendation
In section 16F(5)(a) of the Flora and Fauna Guarantee Act1988 omit "and the Victorian Catchment Management Council".
Division 4—Amendment of other Acts consequent on the change of the catchment manager of the Port Phillip and Westernport Region
144Climate Change Act 2017
In column 2 of Schedule 1 to the Climate Change Act 2017, in the words opposite "Catchment and Land Protection Act 1994", for "Authority" substitute "Catchment Management Authority".
145Conservation, Forests and Lands Act 1987
In section 11(1)(ca) of the Conservation, Forests and Lands Act 1987 omit "established".
146Flora and Fauna Guarantee Act 1988
In section 3(1) of the Flora and Fauna Guarantee Act 1988, in the definition of Catchment Management Authority, for "established under Part 2 of" substitute "under".
147Planning and Environment Act 1987
In section 3(1) of the Planning and Environment Act 1987, in paragraph (b)(vi) of the definition of responsible public entity, for "established under Part 2 of" substitute "under".
148Yarra River Protection (Wilip-gin Birrarung murron) Act 2017
In section 3(1) of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017—
(a)in the definition of relevant plan entity—
(i)in paragraph (d), for "2017; or" substitute "2017;";
(ii)paragraph (e) is repealed;
(b)in the definition of responsible public entity, paragraph (e) is repealed.
Part 8—Repeal of this Act
149Repeal of this Act
This Act is repealed on 1 July 2024.
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
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 16 September 2021
Legislative Council: 7 October 2021
The long title for the Bill for this Act was "A Bill for an Act to amend the Water Act 1989 and the Catchment and Land Protection Act 1994, to make consequential and related amendments to other Acts and for other purposes."
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