Water (Place of Take) Regulations 2023 (Vic)

Version No. 002

Water (Place of Take) Regulations 2023

S.R. No. 111/2023

Version incorporating amendments as at

22 May 2024

TABLE OF PROVISIONS

Regulation  Page

1Objective

2Authorising provisions

3Commencement

4Revocation

5Definitions

6Prescribed circumstances for issuing a prohibition determination

7Application of a determination under section 64FZE of the Act

8Grounds to suspend or cancel a works licence

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Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 002

Water (Place of Take) Regulations 2023

S.R. No. 111/2023

Version incorporating amendments as at

22 May 2024

1Objective

The objective of these Regulations is to prescribe—

(a)the circumstances in which the Minister can make a prohibition determination under section 64FZE of the Act; and

(b)the grounds for suspension or cancellation of a works licence under section 74AB(1)(b) of the Act; and

(c)any related matter.

2Authorising provisions

These Regulations are made under sections 64FZF, 74AB(1)(b), and 324(1)(af) and (v), (2) and (3) of the Water Act 1989.

3Commencement

These Regulations come into operation on 20 November 2023.

4Revocation

The Water (Tagged Water Allocations) Regulations 2021[1] are revoked.

5Definitions

(1)In these Regulations—

Basin water resources has the same meaning as in the Water Act 2007 of the Commonwealth;

Broken water system means the Broken water system declared under the Order Declaring Water Systems in Northern Victoria 2007 made under section 6A of the Act on 19 June 2007, published in the Government Gazette on 21 June 2007;

Bullarook water system means the Bullarook water system declared under the Order Declaring Water Systems in Northern Victoria 2007 made under section 6A of the Act on 19 June 2007, published in the Government Gazette on 21 June 2007;

interstate trading zone means a part of a water system which is in another State or Territory and which is generally described as a trading zone;

Ovens water system means the Ovens water system declared under the Order Declaring Water Systems in Northern Victoria 2007 made under section 6A of the Act on 19 June 2007, published in the Government Gazette on 21 June 2007;

particular place of take approval that is tagged means a particular place of take approval for water under a relevant water allocation or a class of relevant water allocation to be taken from an approved place in a water system zone that is different from the source water system zone for that relevant water allocation or class of relevant water allocation;

source water system zone means—

(a)in relation to a relevant water allocation under a water share, whichever of the following applies—

(i)the water system zone in the declared water system for the water share determined under the Act, including by variation of determination under the Act; or

(ii)if the relevant water allocation has been assigned or further assigned under the Act, the water system zone in the declared water system into which the water allocation has been assigned; or

(b)in relation to a relevant water allocation under an approved interstate right that is taken to be a water share under section 33AG(3) of the Act, the interstate trading zone from which the right was issued; or

(c)in relation to an approved interstate right that is taken to be a water allocation under section 33AG(4) of the Act, whichever of the following applies—

(i)the water system zone in the declared water system from which the Minister has approved the taking of water under section 33AG of the Act; or

(ii)if the relevant water allocation has been assigned or further assigned under the Act, the water system zone in the declared water system into which the water allocation has been assigned; or

(d)in relation to a relevant water allocation under a bulk entitlement, the water system zone in the declared water system to which the water allocation has been assigned; or

(e)in relation to a relevant water allocation under an environmental entitlement, the water system zone in the declared water system to which the water allocation has been assigned;

the Act means the Water Act 1989;

Note

These Regulations use the following terms that are defined in section 3(1) of the Act: approved interstate right, approved place, Basin Plan, bulk entitlement, declared water system, environmental entitlement, particular place of take approval, relevant water allocation, water system zone. These Regulations also use the following terms that are defined in section 64FA of the Act: prohibition determination, restriction determination.

(2)In these Regulations, a reference to "relevant water allocation" includes a reference to part of a relevant water allocation.

6Prescribed circumstances for issuing a prohibition determination

(1)For the purposes of making a prohibition determination in respect of a relevant water allocation or a class of relevant water allocation that is the subject of a particular place of take approval that is tagged and that applies to the Basin water resources, the prescribed circumstances are that the Minister reasonably believes it is necessary to provide for restrictions on the taking of water under that allocation or class of allocation when any of the reasons in section 12.18 of the Basin Plan exist.

(2)For the purposes of making a prohibition determination that applies to a specified area within the Broken water system, Bullarook water system or Ovens water system and for a period or periods of time in accordance with section 64FZE(3)(a) of the Act, the prescribed circumstances are that the Minister reasonably believes that—

(a)the amount of water that can be delivered to the specified area on a daily basis or throughout a water season is not enough, or soon will not be enough, to meet all of the following—

(i)the demand to take water from the approved places in the area;

(ii)the commitments to deliver water downstream of the area;

(iii)any water system management requirements; and

(b)either—

(i)making a restriction determination is not sufficient to ensure water system management requirements are met; or

(ii)making the prohibition determination is in the public interest.

7Application of a determination under section 64FZE of the Act

For the purposes of determining whether or not section 12.23 of the Basin Plan applies to a determination made under section 64FZE of the Act, taking water from an approved place under a relevant water allocation that is the subject of a particular place of take approval that is tagged is taken to be taking water with an order for that water.

Note

In these Regulations a reference to "order" is a reference to the term as used in section 12.23(1) of the Basin Plan.

8Grounds to suspend or cancel a works licence

For the purpose of section 74AB(1)(b) of the Act, prescribed circumstances are where works under a licence issued under section 67 of the Act have been used by the holder of the licence to take water in contravention of a determination made by the Minister under Part 4AA of the Act.

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ENDNOTES

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Water (Place of Take) Regulations 2023, S.R. No. 111/2023 were made on 24 October 2023 by the Governor in Council under sections 64FZF, 74AB(1)(b), and 324(1)(af) and (v), (2) and (3) of the Water Act 1989, No. 80/1989 and came into operation on 20 November 2023: regulation 3.

The Water (Place of Take) Regulations 2023 will sunset 10 years after the day of making on 24 October 2033 (see section 5 of the Subordinate Legislation Act 1994).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule.  Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms. 
See section 36(1A)(2A)(2B).

•     Examples, diagrams or notes

All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule.  Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule.  See section 36(3A).

•     Punctuation

All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule.  Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).

•     Provision numbers

All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001.  Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule.  See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Water (Place of Take) Regulations 2023 by statutory rules, subordinate instruments and Acts.

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Water (Place of Take) Amendment Regulations 2024, S.R. No. 32/2024

Date of Making:	14.5.24
Date of Commencement:	22.5.24: reg. 3

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3   Explanatory details

[1] Reg. 4: S.R. No. 140/2021.

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Table of Applied, Adopted or Incorporated Matter

The following table of applied, adopted or incorporated matter was included in S.R. No. 111/2023 in accordance with the requirements of regulation 5 of the Subordinate Legislation Regulations 2014.

Statutory rule provision	Title of applied, adopted or incorporated document	Matter in applied, adopted or incorporated document
Regulation 6 of the Water (Place of Take) Regulations 2023	Basin Plan within the meaning of the Water Act 2007 of the Commonwealth	Section 12.18
Regulation 7 of the Water (Place of Take) Regulations 2023	Basin Plan within the meaning of the Water Act 2007 of the Commonwealth	Section 12.23