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TASMANIA
__________
WATER MANAGEMENT AMENDMENT BILL
2002
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 8 amended (Functions and duties of the Minister)
6. Section 10 amended (Delegation)
7. Section 14 amended (Scope of water management plans)
8. Section 48 amended (Rights to take water)
9. Section 49 amended (Hydro-electric generation)
10. Section 54 amended (Licences)
11. Section 56 amended (Details of licence)
12. Section 58 substituted
58. Restriction on use of allocation
13. Section 63 amended (Approval of application)
14. Section 64 amended (Refusal of application for a licence)
15. Section 73 amended (Approval of application to vary
licence)
16. Section 84 amended (Allocation of water)
[Bill 85]-IX
17. Section 91 amended (Inadequate supply or overuse of
water)
18. Section 95 amended (Transfer of licences and water
allocations)
19. Part 7, Division 3 repealed
20. Section 137 substituted
137. Application of this Part
21. Section 141 amended (Facilities and employees of Crown,
&c., available to Assessment Committee)
22. Section 143 amended (Functions of Assessment
Committee)
23. Section 143A inserted
143A. Assessment Committee to have regard to
standards
24. Section 146 amended (Permit to undertake dam works)
25. Section 147 amended (Minister may require action to be
taken)
26. Section 152 amended (Referral to Director)
27. Section 154 amended (Requirement for additional
information)
28. Section 155 amended (Information to be provided)
29. Section 156 amended (Consideration of application)
30. Section 157 substituted
157. Granting of permit
157A. Permit may enure for benefit of owner
31. Section 158 amended (Refusal of application for permit)
32. Section 159 amended (Time when permit takes effect)
33. Section 164 amended (Time limits for decision)
34. Part 8A inserted
PART 8A Safety of dams
Division 1 Interpretation
165A. Application of Part
165B. Interpretation of Part 8A
Division 2 Functions of Minister
165C. Functions of Minister
2
165D. Inquiries as to dam safety
165E. Evidence at inquiry
Division 3 Control of dams
165F. Referral of applications under another
enactment
165G. Duty for safe operation of dam
165H. Obtaining and providing information
165I. Reporting of incidents
165J. Entry, surveillance, testing, &c.
165K. Operation and maintenance manuals
165L. Directions for maintenance, &c., of dams
165M. Surveillance and testing
165N. Notices to ensure safety of dam following
provision of information
165P. Notices to ensure safety of dams in case of
imminent danger, &c.
Division 4 Miscellaneous and supplemental
165Q. Obstruction of authorised person
165R. Determination of compensation
165S. Contracts
165T. Arrangements with statutory authorities
165U. Form of information provided under this Part
165V. Requirement for permit where dam works
required by direction or notice
35. Section 166 amended (Application of Division to water
entities)
36. Section 182 amended (Annual reports to Minister)
37. Section 193 amended (Purpose of riverworks district)
38. Section 194 amended (Purpose of hydro-electric district)
39. Section 195 amended (Purposes of drainage district)
40. Section 197 amended (Powers to undertake works near or
through highways)
41. Section 201 amended (Power to levy rates)
42. Section 235 amended (Inspection and removal of meters)
43. Section 271 amended (Reviewable decisions)
44. Section 289A inserted
289A. Confidentiality
45. Sections 304A and 304B inserted
3
304A. Regulations relating to dams safety
304B. Adoption of code relating to dams safety
46. Schedule 4 amended (Savings and transitional
provisions)
47. Sewers and Drains Act 1954 amended
4
WATER MANAGEMENT AMENDMENT BILL
2002
(Brought in by the Minister for Primary Industries, Water
and Environment, the Honourable Bryan Alexander Green)
A BILL FOR
An Act to amend the Water Management Act 1999 to
ensure the safety of dams and to make other
miscellaneous amendments and to amend the
Sewers and Drains Act 1954
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Water Management
Amendment Act 2002.
Commencement
2. This Act commences on a day to be proclaimed.
Principal Act
3. In this Act, the Water Management Act 1999* is
referred to as the Principal Act.
*No. 45 of 1999
[Bill 85] 5
s. 4 No. Water Management Amendment 2002
Section 3 amended (Interpretation)
4. Section 3(1) of the Principal Act is amended as follows:
(a) by omitting the definitions of "dam" and "dam
works" and substituting the following
definitions:
"dam" means a permanent or
temporary barrier or structure, the
main purpose of which is the
storage, holding back or
impedance of the flow of water and
includes
(a) any spillway or similar
works for passing water
around or over the barrier or
structure; and
(b) a pipe or other works for
passing water through or
over the barrier or structure;
and
(c) water stored or held back by
the barrier or structure and
the area covered by that
water; and
(d) an artificial depression or
hole excavated in a
watercourse for the purpose
of holding water or impeding
the flow of water; and
(e) a levee or bank constructed
for the purpose of
preventing, controlling or
mitigating the effect of a
flood
6
2002 Water Management Amendment No. s. 4
but does not include
(f) associated works and canals
used in, or in relation to, the
generation of electricity; or
(g) a tank or reservoir unless
(i) the storage of water
involves flooding
natural ground; or
(ii) the tank or reservoir is
on a watercourse; or
(h) roads, buildings and other
ancillary works that are not
part of the dam;
"dam works" means any works for the
construction, erection,
enlargement, modification or
removal of a dam to which Part 8
or Part 8A applies or any work on
any such dam which may
significantly increase the dam's
safety risk;
(b) by inserting the following definition after the
definition of "Director":
"dispersed surface water" means
(a) water flowing over land
otherwise than in a
watercourse
(i) after having fallen as
rain or hail or having
precipitated in any
other manner; or
7
s. 4 No. Water Management Amendment 2002
(ii) after rising to the
surface naturally from
underground; or
(b) water as mentioned in
paragraph (a) that has been
collected in a dam or
reservoir;
(c) by inserting the following definition after the
definition of "equipment":
"functions" includes powers,
authorities and duties;
(d) by inserting the following definition after the
definition of "groundwater area":
"highway" means
(a) a State highway or
subsidiary road within the
meaning of the Roads and
Jetties Act 1935; or
(b) a local highway within the
meaning of the Local
Government (Highways) Act
1982;
(e) by inserting the following definition after the
definition of "hydro-electric district":
"incident", in the case of a dam, means
any incident or event relating to
the structural integrity or safety of
the dam which causes, or has the
potential to cause
(a) death or injury to a person;
or
8
2002 Water Management Amendment No. s. 4
(b) damage to, or loss of,
property or services; or
(c) material environmental
harm or serious
environmental harm;
(f) by omitting the definition of "owner" and
substituting the following definition:
"owner" means
(a) in the case of land alienated
from the Crown by grant in
fee simple, the holder of an
estate in fee simple; or
(b) in the case of dedicated
Crown land that has not
been granted in fee simple
but which is under the care,
control and management of
a Minister, body or other
person, that Minister, body
or other person; or
(c) in the case of land held
under Crown lease or
licence, the lessee or licensee
of the land; or
(d) in the case of land held
under an agreement to
purchase it from the Crown,
the person entitled to the
benefit of the agreement; or
(e) in the case of any other land,
the Minister who is
responsible for the care,
control and management of
9
s. 4 No. Water Management Amendment 2002
the land or, if no Minister is
so responsible, the Minister
having the administration of
the EMPC Act; or
(f) in the case of a dam, any
person or statutory
authority who, whether
solely or with another
person or statutory
authority, owns, controls,
operates, manages or
maintains a dam, and
includes any person or
statutory authority who,
whether solely or with
another person or statutory
authority, proposes to build
a dam;
(g) by inserting the following definition after the
definition of "State policy":
"statutory authority" means a person,
body or authority, whether
incorporated or unincorporated,
constituted by or under an Act, or
appointed by the Governor under
the authority of an Act, to
administer or control a
department, office, business or
undertaking on behalf of the State;
(h) by omitting the definition of "surface water";
(i) by omitting paragraph (d) from the definition
of "water entity" and substituting the following
paragraph:
10
2002 Water Management Amendment No. s. 4
(d) a body corporate under the
Corporations Act; or
(j) by omitting paragraph (g) from the definition
of "water entity" and substituting the following
paragraph:
(g) a trust or society that is registered
under the Cooperatives Act 1999
(k) by omitting the definition of "water resource"
and substituting the following definition:
"water resource" means a
watercourse, lake or any dispersed
surface water or groundwater;
(l) by omitting paragraph (d) from the definition
of "watercourse" and substituting the following
paragraphs:
(d) part of any such stream; and
(da) the floodplain of any such stream
(m) by inserting the following definition after the
definition of "well":
"working day" means a day that is
not
(a) a Saturday or Sunday; or
(b) a statutory holiday within
the meaning of the Statutory
Holidays Act 2000;
11
s. 5 No. Water Management Amendment 2002
Section 8 amended (Functions and duties of the
Minister)
5. Section 8(1)(c) of the Principal Act is amended by
inserting "dispersed" after "wells and".
Section 10 amended (Delegation)
6. Section 10(5) of the Principal Act is amended as follows:
(a) by inserting in paragraph (b) "165L(5)," after
"section 137(2),";
(b) by omitting from paragraph (c) "135(2),";
(c) by inserting in paragraph (c) "165J(3), 165L(7),
165M(1), 165N(4)," after "147(5),".
Section 14 amended (Scope of water management
plans)
7. Section 14(1) of the Principal Act is amended by
inserting "dispersed" after "include".
Section 48 amended (Rights to take water)
8. Section 48(4) of the Principal Act is amended by
inserting "dispersed" after "land may take".
Section 49 amended (Hydro-electric generation)
9. Section 49 of the Principal Act is amended by omitting
paragraph (a) and substituting the following paragraph:
12
2002 Water Management Amendment No. s. 10
(a) cause material environmental harm or serious
environmental harm or significant detrimental
effects to other users; and
Section 54 amended (Licences)
10. Section 54(1) of the Principal Act is amended by
omitting paragraph (b) and substituting the following
paragraph:
(b) dispersed surface water.
Section 56 amended (Details of licence)
11. Section 56(1)(b) of the Principal Act is amended by
omitting "is to" and substituting "may".
Section 58 substituted
12. Section 58 of the Principal Act is repealed and the
following section is substituted:
Restriction on use of allocation
58. (1) Without limiting section 56, the Minister
may determine that a water allocation of a licence
may be
(a) taken from, or used on, only a specified
area of land; or
(b) used only for a specified purpose; or
(c) used only to allow the taking of water
into a specified dam or proposed dam.
13
s. 13 No. Water Management Amendment 2002
(2) Where a water allocation is determined
under subsection (1)(c) to be used for the taking of
water into a proposed dam or to increase the
quantity of water to be taken into an existing dam,
the allocation may be made conditional on the
completion of
(a) the construction of the proposed dam; or
(b) the dam works increasing the existing
dam's capacity.
Section 63 amended (Approval of application)
13. Section 63(d) of the Principal Act is amended by
inserting "or on the commercial operations of a major user
of water from that water resource" after "resource".
Section 64 amended (Refusal of application for a
licence)
14. Section 64(b)(i) of the Principal Act is amended by
inserting "or on the commercial operations of a major user
of water from the relevant water resource" after "Part 5".
Section 73 amended (Approval of application to vary
licence)
15. Section 73(d) of the Principal Act is amended by
inserting "or on the commercial operations of a major user
of water from that water resource" after "resource".
14
2002 Water Management Amendment No. s. 16
Section 84 amended (Allocation of water)
16. Section 84 of the Principal Act is amended by
inserting after subsection (3) the following subsection:
(3A) Without limiting subsection (3), a
condition may provide that, where a water allocation
is granted for the taking of water into a dam in
respect of which a permit for the relevant dam works
is granted under section 157, the allocation expires if
the permit lapses under section 159(8).
Section 91 amended (Inadequate supply or overuse
of water)
17. Section 91(1)(c) of the Principal Act is amended as
follows:
(a) by inserting "dispersed" after "which";
(b) by inserting in subparagraph (i) "dispersed"
after "that the";
(c) by inserting in subparagraph (ii) "dispersed"
after "on the".
Section 95 amended (Transfer of licences and water
allocations)
18. Section 95(6) of the Principal Act is amended by
inserting "of a licence" after "transfer".
Part 7, Division 3 repealed
19. Division 3 of Part 7 of the Principal Act is repealed.
15
s. 20 No. Water Management Amendment 2002
Section 137 substituted
20. Section 137 of the Principal Act is repealed and the
following section is substituted:
Application of this Part
137. (1) This Part applies to all dams except
(a) a dam which is not on a watercourse and
which is constructed for the purpose of
preventing, controlling or mitigating the
effect of a flood; and
(b) a dam which is not on a watercourse and
holds less than one megalitre of water;
and
(c) a dam constructed for the primary
purpose of storing waste; and
(d) a levee or bank that is constructed
during a flood and removed entirely
within 4 weeks after the day on which it
was constructed.
(2) The Minister may, by order published in
the Gazette, determine that a permit under this Part
is not required in respect of dam works of a specified
type, location or purpose.
Section 141 amended (Facilities and employees of
Crown, &c., available to Assessment Committee)
21. Section 141 of the Principal Act is amended by
omitting "public" twice occurring and substituting
"statutory".
16
2002 Water Management Amendment No. s. 22
Section 143 amended (Functions of Assessment
Committee)
22. Section 143(d) of the Principal Act is amended by
inserting ", where the Committee considers it appropriate,"
after "recommendations".
Section 143A inserted
23. After section 143 of the Principal Act, the following
section is inserted in Division 3:
Assessment Committee to have regard to
standards
143A. In performing its functions under section 143,
the Assessment Committee must have regard to
prescribed standards for the design, construction,
maintenance, surveillance and decommissioning of
dams.
Section 146 amended (Permit to undertake dam
works)
24. Section 146 of the Principal Act is amended as follows:
(a) by inserting in subsection (2)(c) "or Part 8A"
after "Part";
(b) by omitting subsection (3) and substituting the
following subsections:
(3) A person must not undertake, or
cause or permit to be undertaken, any dam
works unless
(a) the person who undertakes those
works, or the person who causes or
17
s. 24 No. Water Management Amendment 2002
permits them to be undertaken, as
the case may be, holds a permit
authorising those works; and
(b) the works are carried out in
accordance with that permit.
Penalty: Fine not exceeding 200 penalty
units and, in the case of a
continuing offence, a further
fine not exceeding 20 penalty
units for each day during which
the offence continues.
(4) In a prosecution for an offence under
this section, it is a defence if the person who
undertook the dam works, or caused or
permitted them to be undertaken
(a) shows that it was necessary to do
so in order to maintain the
structural integrity of the dam;
and
(b) shows that the dam works were
limited to works necessary for that
purpose; and
(c) within 2 working days after
commencing the works, gave
written notice of the works to the
Minister or an authorised officer;
and
(d) as soon as practicable after
completing the dam works, applied
to the Assessment Committee for
its approval of the works.
(5) An application for approval referred
to in subsection (4)(d) is to be treated by the
18
2002 Water Management Amendment No. s. 25
Assessment Committee as an application for a
permit under this section.
Section 147 amended (Minister may require action
to be taken)
25. Section 147(5)(a) of the Principal Act is amended by
omitting "only" and substituting "any".
Section 152 amended (Referral to Director)
26. Section 152 of the Principal Act is amended as follows:
(a) by inserting in subsection (1) "for a permit"
after "an application";
(b) by inserting in subsection (5) "for a permit"
after "application".
Section 154 amended (Requirement for additional
information)
27. Section 154(1) of the Principal Act is amended by
omitting "the applicant" first occurring and substituting
"an applicant for a permit".
Section 155 amended (Information to be provided)
28. Section 155(2)(b) of the Principal Act is amended by
inserting ", including a plan for the safe operation and
maintenance of a proposed dam" after "matters".
19
s. 29 No. Water Management Amendment 2002
Section 156 amended (Consideration of application)
29. Section 156 of the Principal Act is amended by
inserting after paragraph (d) the following paragraph:
(da) take into consideration
(i) the effect of the water or other stored
material on the impoundment area of
the dam; and
(ii) the chemical nature and stability of the
material contained by the dam; and
(iii) the advice of the relevant authority
referred to in section 165F(1); and
Section 157 substituted
30. Section 157 of the Principal Act is repealed and the
following sections are substituted:
Granting of permit
157. (1) On receipt of an application for a permit,
the Assessment Committee may
(a) grant the permit; or
(b) refuse to grant the permit in accordance
with section 158.
(2) A permit
(a) is to be consistent with any relevant
State policy or water management plan;
and
(b) is subject to such conditions as may be
specified in the permit or prescribed; and
20
2002 Water Management Amendment No. s. 30
(c) is binding on, and has effect for the
benefit of, the applicant and the owner
and occupier of the land to which it
relates and all subsequent owners and
occupiers of the land; and
(d) is subject to any determination of the
Board under section 153.
(3) Without limiting subsection (2)(b)
(a) a condition may relate to the time before
which the permitted activity must be
commenced, the time before which the
activity must be completed or the period
during which the permit remains in
force; and
(b) a condition may relate to
(i) the investigation, design,
construction, operation,
maintenance, surveillance or
decommissioning of the dam; or
(ii) reporting to the Minister any
information relating to the dam; or
(iii) any matter prescribed in the
regulations; or
(iv) the objectives of this Act; and
(c) it may be a condition of a permit that
specified work is to be undertaken by a
specified person or class of persons; and
(d) a condition may provide that the permit
does not take effect until
21
s. 30 No. Water Management Amendment 2002
(i) permission has been obtained for
the taking of water under
section 90; or
(ii) a relevant water allocation has
been obtained by transfer under
Division 4 of Part 6.
(4) The Assessment Committee may vary a
condition under subsection (2)(b) if of the opinion
that the variation is necessary
(a) to comply with a relevant water
management plan; or
(b) to avoid material environmental harm or
serious environmental harm; or
(c) to ensure that the dam is safe; or
(d) for any other purpose that is not
contrary to the objectives of this Act, a
relevant water management plan or any
prescribed matter relating to dam safety.
(5) The Assessment Committee must not make
a variation under subsection (4) if the variation is
contrary to
(a) a determination or terms and conditions
made by the Board under section 153; or
(b) an order under section 264; or
(c) a determination of the Appeal Tribunal
under section 279.
(6) The Assessment Committee must not make
a variation under subsection (4)(d) without the
written consent of the dam owner.
22
2002 Water Management Amendment No. s. 31
(7) Unless a variation is made under
subsection (4)(d), the owner of a dam for which a
variation of a permit is made has the same rights of
appeal as if the variation were an original condition
of the permit.
(8) A condition remains in force after the
activity authorised by the permit has been
completed, unless otherwise expressed in the permit.
Permit may enure for benefit of owner
157A. A permit to undertake dam works may be
assigned so as to enure for the benefit of the owner
of the relevant land from time to time.
Section 158 amended (Refusal of application for
permit)
31. Section 158(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (c) "resource "
and substituting "resource; or";
(b) by inserting the following paragraphs after
paragraph (c):
(ca) may damage or adversely impact
on property owned by a third
party; or
(cb) may adversely impact on public
safety
23
s. 32 No. Water Management Amendment 2002
Section 159 amended (Time when permit takes
effect)
32. Section 159 of the Principal Act is amended by
omitting subsection (7) and substituting the following
subsections:
(7) Where
(a) any other approvals under this or any
other Act are required for the proposed
dam works to which the permit relates;
or
(b) a new licence or a variation to an
existing licence is required to take water
for the purposes of the dam works
the permit does not take effect until all those
approvals and the licence or the variation to the
licence, as the case may require, have been granted.
(7A) The Assessment Committee may, with
the approval of the Minister and by endorsement on
the permit, declare that subsection (7) does not apply
to the permit.
Section 164 amended (Time limits for decision)
33. Section 164(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (c) "section 152(3)"
and substituting "section 152(2)";
(b) by omitting paragraph (d) and substituting the
following paragraph:
(d) in any other case, 12 weeks after
the date on which the Assessment
24
2002 Water Management Amendment No. s. 34
Committee becomes satisfied that
an application in accordance with
section 146(2) has been lodged.
Part 8A inserted
34. After section 165 of the Principal Act, the following
Part is inserted:
PART 8A SAFETY OF DAMS
Division 1 Interpretation
Application of Part
165A. This Part applies to all dams except a dam
that holds less than one megalitre of water or waste
and is not on a watercourse.
Interpretation of Part 8A
165B. In this Part
"appurtenant works" means all ancillary
structures of a dam that may affect a
dam's safety including, but not limited
to, spillways, inlet and outlet works,
tunnels, pipelines, penstocks, power
stations and watercourse diversions;
"dam" means a permanent or temporary
barrier or structure, the main purpose of
which is the storage of water or other
liquids, silt, debris, mine tailings or
other liquid-borne material or the
holding back or impedance of the flow of
water or other material and includes
25
s. 34 No. Water Management Amendment 2002
(a) water or other material stored or
held back by the barrier or
structure and the area covered by
that water or other material; and
(b) an artificial depression or hole
excavated in a watercourse for the
purpose of holding water or
impeding the flow of water; and
(c) a levee or bank formed for the
purpose of holding back water; and
(d) any appurtenant works;
"dam works" includes any appurtenant
works;
"inquirer" means the Minister or other
person conducting an inquiry or
examination under section 165D.
Division 2 Functions of Minister
Functions of Minister
165C. For the purposes of this Part, the Minister
has the following functions:
(a) to develop specifications for the purposes
of the regulations relating to dams;
(b) to establish and maintain a register of
dams;
(c) to develop prescribed standards required
for the design, construction,
maintenance, surveillance and
decommissioning of dams or classes of
dams;
26
2002 Water Management Amendment No. s. 34
(d) to ensure compliance with those
standards;
(e) to develop prescribed standards for the
competency of persons undertaking
design, construction, maintenance,
surveillance and decommissioning of
dams or classes of dams;
(f) to formulate measures to ensure the
safety of dams and, in particular, plans
to remove or minimise risks to persons
or property or the natural environment
arising from an incident;
(g) to obtain information and keep records
on matters relating to the safety of
dams.
Inquiries as to dam safety
165D. (1) The Minister may conduct an inquiry into
any matter relating to the safety of a dam.
(2) The Minister may, by order in writing,
authorise, on such terms and conditions as are
specified in the order, any other person to conduct an
inquiry or to examine, and report on, any matter in
connection with an inquiry.
(3) Nothing in this section is to be construed
as limiting the power of the Minister to conduct an
examination in connection with an inquiry under
this section and the Minister may conduct such an
examination notwithstanding that he or she has
authorised another body or person to do so.
27
s. 34 No. Water Management Amendment 2002
Evidence at inquiry
165E. (1) An inquirer may require a person, by
notice in writing
(a) within such reasonable time as may be
specified in the notice, to provide the
inquirer with such information and to
produce to the inquirer such books,
plans, documents or other papers and
such films, tape recordings or other
records in the person's possession or
under the person's control as may be
required for the purpose of the inquiry or
examination, as the case may be, and as
may be specified in the notice, whether
generally or otherwise; or
(b) to attend, at a time and place specified
in the notice, before the inquirer and
then, from time to time as required by
the inquirer, to give evidence concerning
any matter the subject of the inquiry or
examination, as the case may be, and to
produce to the inquirer any of the
articles referred to in paragraph (a).
(2) An inquirer may require any evidence
referred to in subsection (1)(b) to be given on oath,
either in writing or orally, and, for that purpose, the
inquirer may administer the oath.
(3) A person must not neglect or refuse to
comply with the requirements of a notice served on
the person under this section.
Penalty: Fine not exceeding 100 penalty units.
(4) A person must not
28
2002 Water Management Amendment No. s. 34
(a) furnish any information referred to in
subsection (1)(a) required of him or her
by a notice served on him or her under
subsection (1) that is false or misleading
in a material particular; or
(b) give any evidence referred to in
subsection (1)(b) that is false or
misleading in a material particular.
Penalty: Fine not exceeding 100 penalty units.
(5) It is a defence to a prosecution under
subsection (4) if the defendant proves that he or she
believed the truth of the information or evidence
given by him or her and that it was given in good
faith.
(6) A person who is required to attend an
inquiry under this section is entitled to be paid an
allowance specified in the regulations in respect of
that attendance.
Division 3 Control of dams
Referral of applications under another
enactment
165F. (1) Where a person who proposes to
undertake dam works is required under any other
enactment to apply for any approval or permit before
those works are undertaken, the relevant authority
must refer the application to the Assessment
Committee before granting the approval or issuing
the permit.
(2) Where an application is referred to the
Assessment Committee
29
s. 34 No. Water Management Amendment 2002
(a) the Committee may require the
imposition on the approval or permit of
such terms and conditions as the
Committee considers necessary or
desirable to ensure the safety of the dam
works; and
(b) the relevant authority must include
those terms and conditions on the
approval or permit.
(3) An application referred to the Assessment
Committee under subsection (1) is taken to be an
application for a permit under section 146 except
that
(a) it is exempt from the provisions of
sections 149 and 152; and
(b) the provisions of sections 157 and 158
relating to the granting or refusal of a
permit do not apply; and
(c) the Committee may impose terms and
conditions as mentioned in
subsection (2) of this section.
(4) Division 2 of Part 14 does not apply to any
terms or conditions imposed by the Assessment
Committee under subsection (2) but this subsection
does not affect any right of appeal against those
terms and conditions which may lie under any
enactment under which the relevant application is
made.
(5) Where a referral is made under
subsection (1) and the referral would result in the
relevant authority not being able to meet any
statutory restrictions as to time on the period within
which the relevant authority must consider the
application, those restrictions are suspended until
30
2002 Water Management Amendment No. s. 34
such time as the Assessment Committee makes a
final decision on the referral.
Duty for safe operation of dam
165G. An owner of a dam must, so far as is
reasonably practicable, maintain and operate the
dam so as not to cause, or be likely to cause,
material environmental harm or serious
environmental harm or danger to any person or
property.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 500 penalty units and a
daily fine not exceeding 50 penalty
units for each day during which
the offence continues; and
(b) a natural person, a fine not
exceeding 200 penalty units and a
daily fine not exceeding 20 penalty
units for each day during which
the offence continues.
Obtaining and providing information
165H. (1) In order to satisfy himself or herself that
a dam is in a safe condition, the Minister may, by
notice in writing, require the owner of a dam
specified in the notice to do either or both of the
following:
(a) in accordance with the regulations,
make such observations, take such
measurements, undertake such
engineering studies and keep such
31
s. 34 No. Water Management Amendment 2002
records of or in respect of the dam, the
environs over, under and surrounding
the dam and the water or other material
impounded by the dam as may be
specified in the notice;
(b) provide the Minister with such
information in respect of the dam, and
with such books, plans, documents or
other papers and such films, tape
recordings or other records as may be
specified or described in the notice.
(2) An owner must comply with a requirement
under subsection (1).
Penalty: Fine not exceeding 100 penalty units.
(3) Where an owner of a dam fails to comply
with a requirement under subsection (1), the
Minister may
(a) undertake the activities referred to in
subsection (1)(a) in respect of the dam;
and
(b) recover the costs and expenses arising
from, or incidental to, undertaking those
activities from the owner as a debt due
to the Crown in any court of competent
jurisdiction.
Reporting of incidents
165I. An owner of a dam must, as soon as
practicable after an incident occurs in respect of the
dam, report that incident to the Secretary in writing.
Penalty: Fine not exceeding 100 penalty units.
32
2002 Water Management Amendment No. s. 34
Entry, surveillance, testing, &c.
165J. (1) In this section, a reference to land
comprising a dam includes a reference to the water
or other material impounded by the dam.
(2) The Minister may, in writing, authorise a
person to carry out a surveillance of any dam for the
purposes of this Part.
(3) A person authorised under subsection (2)
may enter on any land or any place on any land
comprising any dam or the environs over, under or
surrounding any dam and may
(a) carry out such surveillance, tests,
investigations, surveys, experiments,
boring, drilling and exploration; and
(b) take such samples and such
photographs
as the person considers necessary in connection with
the administration of this Part.
(4) A person authorised under subsection (2)
must not exercise any of the powers conferred by
subsection (3) in respect of any land or any place on
any land unless
(a) reasonable notice has been given to the
owner or occupier of the land or place of
the intention to exercise those powers; or
(b) the person believes, on reasonable
grounds, that the circumstances require
immediate action to be taken.
(5) In the exercise of a power conferred by
subsection (3)
33
s. 34 No. Water Management Amendment 2002
(a) the person must ensure that no more
damage than is necessary in the
circumstances is done; and
(b) the Minister must fully compensate any
person who sustains damage in the
course of the exercise of that power.
(6) A person authorised under subsection (2),
in exercising a power conferred by subsection (3) in
the case of any land or any place on any land, must,
if so required by a person apparently in charge of
that land or place, produce the instrument of his or
her authority to that person.
(7) A person who contravenes subsection (6) is
guilty of an offence and is liable on summary
conviction to a fine not exceeding 3 penalty units.
Operation and maintenance manuals
165K. (1) An owner of a dam may demonstrate the
safe operation and maintenance of the dam by
demonstrating compliance with an operation and
maintenance manual submitted by the owner to
(a) the Minister; or
(b) if the manual was submitted in support
of an application for a permit under
section 146 or a referral under
section 165F, the Assessment
Committee.
(2) An operation and maintenance manual
(a) is to be in writing; and
(b) is to be in accordance with the
regulations.
34
2002 Water Management Amendment No. s. 34
(3) The Minister or Assessment Committee
must accept an operation and maintenance manual
if satisfied that it has been prepared in accordance
with the regulations.
Directions for maintenance, &c., of dams
165L. (1) In order to satisfy himself or herself that
a dam is in a safe condition, the Minister may give
an owner of a dam a written direction
(a) relating to the undertaking of works and
carrying out investigations, in
accordance with the regulations, for the
maintenance, surveillance or
decommissioning of a dam; and
(b) requiring the owner to keep such records
relating to the maintenance,
surveillance or decommissioning of the
dam as the Minister may reasonably
require in order to ensure its safety; and
(c) requiring the owner to prepare and
submit to the Minister when so directed
a plan of action proposed to be taken in
case the dam is, or is likely to become, a
danger to any person or property or to
the environment.
(2) Where an operation and maintenance
manual has been accepted under section 165K(3),
the Minister may only give a direction under
subsection (1) of this section if the Minister is
satisfied that the owner of the dam has not complied
with the manual.
(3) An owner of a dam must comply with a
direction under subsection (1).
35
s. 34 No. Water Management Amendment 2002
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 500 penalty units and a
daily fine not exceeding 50 penalty
units for each day during which
the offence continues; and
(b) a natural person, a fine not
exceeding 200 penalty units and a
daily fine not exceeding 20 penalty
units for each day during which
the offence continues.
(4) The Minister must not give a written
direction under subsection (1)(a) that is inconsistent
with
(a) a condition specified in a relevant permit
for dam works under section 157; or
(b) a relevant determination of an appeal
under section 279.
(5) If an owner fails to comply with a direction
under subsection (1)(a) or (c), the Minister may
undertake or carry out any work or investigation
required to be undertaken or carried out or may
prepare any plan required to be prepared and may,
in any court of competent jurisdiction, recover from
the owner, as a debt due to the Crown, any cost
reasonably incurred in so doing.
(6) If an owner fails to comply with a direction
under subsection (1)(b), the Minister may, in any
court of competent jurisdiction, recover from him or
her, as a debt due to the Crown, any cost reasonably
incurred in obtaining the required information.
(7) If an owner fails to comply with a direction
under subsection (1), the Minister may authorise
36
2002 Water Management Amendment No. s. 34
any person to enter on the owner's land for the
purpose of performing any work or investigation
required, preparing the required plan or obtaining
the required information.
(8) If works that are needed to make a dam
permanently safe have the effect of rendering it
unsuitable for its intended purpose, any permit
granted in respect of the dam under this or any
other Act is of no effect.
Surveillance and testing
165M. (1) If an owner of a dam fails to carry out
such testing and surveillance as required by a
direction of the Minister under this Part, the
Minister may authorise a person
(a) to enter on the owner's land; and
(b) carry out surveillance of the dam and
any other land or works as may be
necessary to ensure the safety of the
dam.
(2) For the purposes of subsection (1), the
authorised person may carry out boring and drilling
operations, make surveys and take measurements.
(3) Unless the Minister is satisfied that there
is imminent danger to any person or property or to
the environment, the authorised person must give
the owner at least 14 days' notice in writing of any
action proposed under this section.
(4) In the exercise of powers under this
section
37
s. 34 No. Water Management Amendment 2002
(a) the authorised person must ensure that
no more damage than is necessary is
done to the land; and
(b) the Minister must compensate the owner
for any damage done to the land.
Notices to ensure safety of dam following
provision of information
165N. (1) Where as a result of information provided
under section 165H, 165J, 165L or 165M the
Minister determines that, in order to ensure the
safety of a dam, it is necessary to modify the dam
(a) as a result of the review of the spillway
and its design flood; or
(b) as a result of a change to the hazard
category of the dam subsequent to its
construction; or
(c) to meet prescribed safety requirements
the Minister may, by notice in writing, require the
owner of the dam to carry out modifications specified
or described in the notice as may be reasonably
necessary to ensure the ongoing safety of the dam.
(2) The Minister may specify in the notice a
period, not exceeding 10 years, within which the
owner must comply with the notice.
(3) An owner must comply with a notice under
subsection (1) within the time specified in the notice.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 500 penalty units and a
38
2002 Water Management Amendment No. s. 34
daily fine not exceeding 50 penalty
units for each day during which
the offence continues; and
(b) a natural person, a fine not
exceeding 200 penalty units and a
daily fine not exceeding 20 penalty
units for each day during which
the offence continues.
(4) If an owner of a dam fails to comply with a
notice under this section
(a) the Minister may authorise a person to
enter on the owner's land and take the
action specified in the notice and such
other action as may be necessary or
desirable to make good any damage
caused; and
(b) any expense actually and reasonably
incurred by the Minister in so doing is a
debt due by the owner to the Minister
and recoverable as such in any court of
competent jurisdiction.
(5) Nothing in this section prevents the
Minister from issuing a notice under section 165P.
Notices to ensure safety of dams in case of
imminent danger, &c.
165P. (1) Where it appears to the Minister that a
dam is unsafe or is in imminent danger of becoming
unsafe or there is a high risk of an incident, the
Minister may, by notice in writing, require the
owner of the dam or the person in control of the dam
at the relevant time to do such things as are
specified or described in the notice as may be
39
s. 34 No. Water Management Amendment 2002
reasonably necessary to ensure the safety of the
dam.
(2) A person must comply with a notice under
subsection (1).
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 500 penalty units and a
daily fine not exceeding 50 penalty
units for each day during which
the offence continues; and
(b) a natural person, a fine not
exceeding 200 penalty units and a
daily fine not exceeding 20 penalty
units for each day during which
the offence continues.
(3) Where it appears to the Minister that
anything done or proposed to be done to, or in
respect of, a dam or in the vicinity of a dam by its
owner or any other person may increase the dam's
safety risk, the Minister may, by notice in writing,
require the owner or other person, as the case may
be, to do such things as are specified or described in
the notice as may be reasonably necessary to ensure
the safety of the dam.
(4) The owner or other person must comply
with a notice under subsection (3).
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 500 penalty units and a
daily fine not exceeding 50 penalty
units for each day during which
the offence continues; and
40
2002 Water Management Amendment No. s. 34
(b) a natural person, a fine not
exceeding 200 penalty units and a
daily fine not exceeding 20 penalty
units for each day during which
the offence continues.
(5) If an owner of a dam fails to comply with a
notice under this section
(a) the Minister may authorise a person to
enter on the owner's land and take the
action specified in the notice and such
other action as may be necessary or
desirable to make good any damage
caused; and
(b) any expense actually and reasonably
incurred by the Minister in so doing is a
debt due by the owner to the Minister
and recoverable as such in any court of
competent jurisdiction.
(6) If, as a result of taking any action specified
or described in a notice under this section, a dam
becomes unsuitable for its intended purpose and is
rendered permanently safe, any permit or licence
granted in respect of the dam under this or any
other Act is of no effect.
Division 4 Miscellaneous and supplemental
Obstruction of authorised person
165Q. A person must not obstruct, hinder or
interfere with
(a) a person authorised under subsection (2)
of section 165J in the exercise of his or
her powers under that section; or
41
s. 34 No. Water Management Amendment 2002
(b) a person authorised under subsection (7)
of section 165L in the exercise of his or
her powers under that subsection; or
(c) a person authorised under subsection (1)
of section 165M in the exercise of his or
her powers under that section; or
(d) a person authorised under subsection (4)
of section 165N in the exercise of his or
her powers under that subsection; or
(e) a person authorised under subsection (5)
of section 165P in the exercise of his or
her powers under that subsection.
Penalty: Fine not exceeding 100 penalty units.
Determination of compensation
165R. (1) The amount of compensation payable
under section 165J(5)(b) or section 165M(4)(b) is to
be determined
(a) if the amount is a small claim for the
purposes of the Magistrates Court
(Small Claims Division) Act 1989, by the
small claims division of the Magistrates
Court; or
(b) in any other case, as if it were a disputed
claim for compensation under the Land
Acquisition Act 1993.
(2) In determining the amount of
compensation payable under section 165J(5)(b) or
section 165M(4)(b), the court must have regard to
any benefits accruing to a relevant person from the
action which is the subject of the determination and
42
2002 Water Management Amendment No. s. 34
reduce the amount of the compensation payable
accordingly.
Contracts
165S. The Minister may make a contract with any
person for the carrying out of works, the
performance of services or the supply of goods or
materials in connection with the exercise by the
Minister of his or her functions under this Part.
Arrangements with statutory authorities
165T. (1) The Minister may enter into an
arrangement with any statutory authority that
(a) the statutory authority will act as agent
of the Minister for the purposes of this
Part; or
(b) the Minister will act as agent of the
statutory authority for the purposes of
this Part
on such terms and conditions as may be agreed
between the Minister and the statutory authority.
(2) Notwithstanding anything in any other
Act, a statutory authority is empowered to enter into
arrangements referred to in subsection (1) and may
do or suffer anything necessary or expedient for
carrying out any such arrangements.
43
s. 35 No. Water Management Amendment 2002
Form of information provided under this Part
165U. Any information or report submitted in
fulfilment of an obligation under this Part is to be
submitted in a form approved by the Minister.
Requirement for permit where dam works
required by direction or notice
165V. (1) A person required by direction or notice
under section 165L or 165N to undertake dam works
must apply for an appropriate permit under Part 8
for those works unless the direction or notice
otherwise provides.
(2) If the Assessment Committee or the Appeal
Tribunal decides to refuse an application for a
permit or the permit, if granted, would be
inconsistent with a direction or notice under
section 165L or 165N, the Minister may vary the
direction or notice to take that decision into account.
(3) A person required by notice under
section 165P to undertake dam works is not required
to obtain a permit under Part 8 for those works.
Section 166 amended (Application of Division to
water entities)
35. Section 166(1) of the Principal Act is amended by
omitting paragraph (c) and substituting the following
paragraphs:
(c) a body corporate that is incorporated under
the Corporations Act if at least one-third of the
members of the body corporate own or occupy
land in a proposed water district; and
44
2002 Water Management Amendment No. s. 36
(ca) a trust or society that is registered under the
Cooperatives Act 1999 if at least one-third of
the members of the trust or society own or
occupy land in a proposed water district; and
Section 182 amended (Annual reports to Minister)
36. Section 182 of the Principal Act is amended by
inserting after subsection (2) the following subsection:
(3) Where a responsible water entity is
required to provide an annual report under any
other Act, the Minister may direct that the provision
of that report is sufficient compliance with this
section.
Section 193 amended (Purpose of riverworks
district)
37. Section 193 of the Principal Act is amended by
inserting "so as to enable a water entity" after
"established".
Section 194 amended (Purpose of hydro-electric
district)
38. Section 194 of the Principal Act is amended by
inserting "so as to enable a water entity" after
"established".
Section 195 amended (Purposes of drainage district)
39. Section 195 of the Principal Act is amended as follows:
45
s. 40 No. Water Management Amendment 2002
(a) by inserting "so as to enable a water entity"
after "established";
(b) by omitting from paragraph (a) "its" and
substituting "the".
Section 197 amended (Powers to undertake works
near or through highways)
40. Section 197 of the Principal Act is amended as follows:
(a) by omitting "Highways Act 1951" from the
definition of "Secretary" in subsection (1) and
substituting "Roads and Jetties Act 1935";
(b) by omitting from subsection (4) ", or to the
Secretary in the case of a State highway," and
substituting "or to the Secretary";
(c) by omitting from subsection (8) ", or to the
Secretary in the case of a State highway," and
substituting "or to the Secretary";
(d) by omitting from subsection (10) "Highways
Act 1951" and substituting "Roads and Jetties
Act 1935".
Section 201 amended (Power to levy rates)
41. Section 201(1)(b) of the Principal Act is amended by
omitting "constructing" and substituting "constructing,
maintaining".
46
2002 Water Management Amendment No. s. 42
Section 235 amended (Inspection and removal of
meters)
42. Section 235(1) of the Principal Act is amended by
omitting "section" and substituting "Part".
Section 271 amended (Reviewable decisions)
43. Section 271 of the Principal Act is amended by
inserting after subsection (1) the following subsections:
(1A) Where a notice under section 165H(1) or
section 165N(1), or a direction under section 165L(1),
is given, this Division applies to the notice or
direction as if it were a decision and for that
purpose
(a) the notice or direction is taken to be a
decision to which this Division applies;
and
(b) the person to whom the notice or
direction is given is taken to be an
interested person.
(1B) Subsection (1A) does not apply in a case
where the Minister determines that urgent action is
necessary to avoid or mitigate the effects of an
incident.
Section 289A inserted
44. Before section 290 of the Principal Act, the following
section is inserted in Division 3:
47
s. 45 No. Water Management Amendment 2002
Confidentiality
289A. (1) A person who is, or has been, employed in
carrying out duties related to the administration of
this Act must not disclose confidential information
acquired in the course, or as a result, of carrying out
those duties except
(a) as may be required for the purposes of
this Act; or
(b) as authorised by the person to whom the
duty of confidentiality is owed; or
(c) as authorised by the regulations; or
(d) as required by a court or other lawfully
constituted authority; or
(e) as authorised by the Secretary after
consultation with the person to whom
the duty of confidentiality is owed.
Penalty: Fine not exceeding 50 penalty units.
(2) No civil liability attaches to any person for
a disclosure of confidential information made as
authorised under subsection (1).
Sections 304A and 304B inserted
45. After section 304 of the Principal Act, the following
sections are inserted in Division 4:
Regulations relating to dams safety
304A. The Governor may make regulations
prescribing
48
2002 Water Management Amendment No. s. 45
(a) standards for design, construction,
maintenance, surveillance or
decommissioning of dams or classes of
dams; and
(b) fees payable by the owner of a dam or
proposed dam for assessing design,
construction, maintenance, surveillance
or decommissioning reports required to
be submitted by the owner of the dam;
and
(c) competency standards for persons
undertaking activities associated with
dams; and
(d) travelling allowances and compensation
to be paid to persons attending or giving
evidence at an inquiry or examination
referred to in Part 8A.
Adoption of code relating to dams safety
304B. (1) For the purposes of Parts 8 and 8A, the
regulations may adopt, wholly or partially and with
or without modification, a code relating to matters in
respect of which regulations may be made for the
purposes of those Parts.
(2) The code may be adopted either as in force
at the time the regulations are made or as in force
from time to time.
(3) Any regulations adopting a code, or an
amendment to a code, may contain such incidental,
supplementary and transitional provisions as appear
to the Governor to be necessary or desirable.
(4) The regulations or a code adopted by the
regulations
49
s. 45 No. Water Management Amendment 2002
(a) may refer to or incorporate, wholly or
partially and with or without
modification, a standard or other
document prepared or published by a
body specified in the regulations, either
as in force at the time the regulations
are made or as in force from time to
time; and
(b) may be of general or limited application.
(5) Where a code, standard or other document
is adopted under subsection (1) or (4) as it is in force
from time to time, an alteration to the code,
standard or other document does not take effect for
the purposes of this Act
(a) before the day on which notice of the
alteration is published by the Minister
in the Gazette; or
(b) if the Minister so provides in the notice,
until a day specified by the Minister in
the notice.
(6) Where the regulations or a code adopted by
the regulations refer to a standard or other
document prepared or published by a body specified
in the regulations
(a) a copy of the code, standard or other
document must be kept available for
inspection by members of the public,
without charge and during normal office
hours, at an office or offices specified in
the regulations; and
(b) in any legal proceedings, evidence of the
contents of the code, standard or other
document may be given by production of
a document purporting to be certified by
50
2002 Water Management Amendment No. s. 46
the Minister as a true copy of the code,
standard or other document; and
(c) the code, standard or other document
has effect as if it were a regulation made
under this Act.
Schedule 4 amended (Savings and transitional
provisions)
46. Schedule 4 to the Principal Act is amended as follows:
(a) by omitting from clause 2(4) "supply" twice
occurring;
(b) by omitting from clause 2(5) "supply" first
occurring;
(c) by omitting from clause 3(1) "under" first
occurring and substituting "under, or subject
to,";
(d) by inserting the following subclause after
subclause (2) in clause 3:
(3) The amendment to this clause made
by the Water Management Amendment Act
2002 is taken to have taken effect on the
commencement day.
Sewers and Drains Act 1954 amended
47. Section 8(5) of the Sewers and Drains Act 1954 is
amended by omitting ", or on the recommendation of the
Rivers and Water Supply Commission".
Government Printer, Tasmania 51