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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Rights in Water and Irrigation Amendment
Bill 1999
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Act amended 2
Part 2 -- Amendments relating to long title,
definitions and other miscellaneous matters
4. Long title replaced 3
5. Section 2 amended 3
6. Section 3 inserted 5
7. Division 1 inserted in Part III 6
8. Section 9 amended 8
9. Section 16 amended 9
10 . Section 20 amended 9
11 . Section 21 amended 9
12 . Section 26H amended 9
13 . Section 38 amended 10
14 . References to "wetland" inserted instead of certain
words in various sections 10
15 . References to "water-course" changed to
"watercourse" in various sections 11
16 . Section 70 amended 12
page i
100 -- 2
Rights in Water and Irrigation Amendment Bill 1999
Contents
Part 3 -- Amendments relating to water
rights
17 . Heading to Part III amended 13
18 . Division 1A inserted in Part III 13
19 . Heading to Division 1 of Part III amended 16
20 . Section 6 amended 16
21 . Section 8 repealed 18
22 . Section 9 amended 18
23 . Section 10 amended 18
24 . Section 11 replaced 19
25 . Section 12 amended 20
26 . Section 13 repealed 20
27 . Section 19 amended 20
28 . Section 20 amended 21
29 . Section 21 amended 22
30 . Section 21A inserted 23
31 . Section 22 amended 24
32 . Section 24 amended 25
33 . Section 26 repealed and sections 25A and 26 inserted 25
34 . Section 26A amended 26
35 . Section 26B amended 26
36 . Section 26C amended 28
37 . Section 26D amended 29
38 . Section 26F amended 29
39 . Section 26G amended 30
40 . Division 3A inserted in Part III 31
41 . Section 26H amended 36
42 . Section 27 amended 36
43 . Section 28 amended 36
Part 4 -- Amendments relating to local
by-laws, water resources committees and
plans for the management of water resources
44 . Divisions 3C and 3D inserted in Part III 37
45 . Sections 26L, 26M and 26N inserted 51
46 . Section 39 replaced 55
47 . Section 59 amended 55
page ii
Rights in Water and Irrigation Amendment Bill 1999
Contents
Part 5 -- Amendments relating to licensing
48 . Division 3E inserted in Part III 56
49 . Section 26Q inserted 62
50 . Sections 27A and 27B inserted 62
51 . Schedule 1 added 65
Part 6 -- Amendments relating to dams and
drainage
52 . Section 17 amended 94
53 . Sections 17A and 17B inserted 95
54 . Sections 26O and 26P inserted 96
Part 7 -- Amendments relating to penalties
and appeals
55 . Section 14 repealed 98
56 . Section 22 amended 98
57 . Section 23 repealed 98
58 . Section 26A amended 98
59 . Section 26B amended 98
60 . Section 26D amended 98
61 . Section 26E amended 98
62 . Section 26F amended 99
63 . Section 26G amended 99
64 . Division 3B inserted in Part III 99
65 . Section 27 amended 101
66 . Section 70 amended 101
67 . Section 71 amended 101
68 . Section 72 amended 101
69 . Schedule 2 added 101
Part 8 -- Transitional provisions
70 . Definitions 106
71 . Interpretation Act 1984 not affected 106
72 . Appeals in progress 106
73 . Applications made for licences to take water 107
74 . Applications made for licences in respect of wells 107
75 . Licences under section 12 or 13 108
76 . Licences under section 26D 109
77 . Civil remedy under section 5E 109
page iii
Rights in Water and Irrigation Amendment Bill 1999
Contents
78 . Time running for purposes of section 26B(4) or (5) 110
79 . Existing augmentations of water volumes 110
80 . Orders under section 26C 110
81 . Powers in relation to transitional provisions 110
Part 9 -- Consequential amendments to
other Acts
82 . Country Areas Water Supply Act 1947 112
83 . Environmental Protection Act 1986 112
84 . Metropolitan Water Supply, Sewerage, and Drainage
Act 1909 112
85 . Mining Act 1978 112
page iv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during Consideration in detail)
Rights in Water and Irrigation Amendment
Bill 1999
A Bill for
An Act to amend the Rights in Water and Irrigation Act 1914 and to
make consequential amendments to the --
· Country Areas Water Supply Act 1947;
· Environmental Protection Act 1986;
· Metropolitan Water Supply, Sewerage, and Drainage
Act 1909; and
· Mining Act 1978.
The Parliament of Western Australia enacts as follows:
page 1
Rights in Water and Irrigation Amendment Bill 1999
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Rights in Water and Irrigation
Amendment Act 1999.
5 2. Commencement
This Act comes into operation on a day fixed by proclamation.
3. The Act amended
The amendments in this Act are to the Rights in Water and
Irrigation Act 1914*, unless otherwise indicated.
10 [* Reprinted as at 2 April 1996.
For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 217.]
page 2
Rights in Water and Irrigation Amendment Bill 1999
Amendments relating to the long title, definitions and other Part 2
miscellaneous matters
s. 4
Part 2 -- Amendments relating to the long title,
definitions and other miscellaneous matters
4. Long title replaced
The long title is repealed and the following long title is inserted
5 instead --
"
An Act relating to rights in water resources, to make
provision for the regulation, management, use and
protection of water resources, to provide for irrigation
10 schemes, and for related purposes.
".
5. Section 2 amended
Section 2(1) is amended as follows:
(a) in the definition of "bed", by deleting ", lake, lagoon,
15 swamp or marsh" where it first occurs and inserting
instead --
" or wetland ";
(b) in the definition of "bed", by deleting ", lake, lagoon,
swamp or marsh," and inserting instead --
20 " or wetland ";
(c) by deleting the definition of "irrigation";
(d) by deleting the definition of "Lake, lagoon, swamp or
marsh" and inserting instead --
"
25 "local by-laws" means local by-laws made under
section 26L;
";
(e) by deleting the definition of "spring" and inserting
instead the following definitions --
30 "
"spring" means a spring of water naturally rising to
and flowing over the surface of land, but does not
page 3
Rights in Water and Irrigation Amendment Bill 1999
Part 2 Amendments relating to the long title, definitions and other
miscellaneous matters
s. 5
include the discharge of underground water
directly into a watercourse, wetland, reservoir or
other body of water;
"take", in relation to water, means to remove water
5 from, or reduce the flow of water in, a
watercourse, wetland or underground water
source, including by --
(a) pumping or siphoning water;
(b) stopping, impeding or diverting the flow of
10 water;
(c) releasing water from a wetland;
(d) permitting water to flow under natural
pressure from a well; or
(e) permitting stock to drink from a watercourse
15 or wetland,
and includes storing water during, or ancillary to,
any of those processes or activities;
"the regulations" means regulations made as
mentioned in section 27;
20 "underground water" or "underground water
source" includes water that percolates from the
ground into a well or other works;
";
(f) by deleting the definition of "water-course" and
25 inserting the following definitions --
"
"watercourse" has the meaning given by section 3;
"water resources" includes --
(a) watercourses and wetlands together with
30 their beds and banks;
(b) other surface waters; and
(c) aquifers and underground water;
page 4
Rights in Water and Irrigation Amendment Bill 1999
Amendments relating to the long title, definitions and other Part 2
miscellaneous matters
s. 6
"well" means an opening in the ground made or used
to obtain access to underground water;
"wetland" means a natural collection of water,
whether permanent or temporary, on the surface of
5 any land and includes --
(a) any lake, lagoon, swamp or marsh; and
(b) a natural collection of water that has been
artificially altered,
but does not include a watercourse.
10 ".
6. Section 3 inserted
After section 2 the following section is inserted --
"
3. Meaning of "watercourse"
15 (1) In this Act, unless the contrary intention appears --
"watercourse" means --
(a) any river, creek, stream or brook in which
water flows;
(b) any collection of water (including a
20 reservoir) into, through or out of which any
thing coming within paragraph (a) flows;
(c) any place where water flows that is
prescribed by local by-laws to be a
watercourse,
25 and includes the bed and banks of any thing
referred to in paragraph (a), (b) or (c).
(2) For the purposes of the definition in subsection (1) --
(a) a flow or collection of water comes within that
definition even though it is only intermittent or
30 occasional;
page 5
Rights in Water and Irrigation Amendment Bill 1999
Part 2 Amendments relating to the long title, definitions and other
miscellaneous matters
s. 7
(b) a river, creek, stream or brook includes a
conduit that wholly or partially diverts it from
its natural course and forms part of the river,
creek, stream or brook; and
5 (c) it is immaterial that a river, creek, stream or
brook or a natural collection of water may have
been artificially improved or altered.
".
7. Division 1 inserted in Part III
10 Immediately after the heading to Part III the following Division
is inserted --
"
Division 1 -- Objects and application of this Part
4. Objects
15 (1) The objects of this Part are --
(a) to provide for the management of water
resources, and in particular --
(i) for their sustainable use and
development to meet the needs of
20 current and future users; and
(ii) for the protection of their ecosystems
and the environment in which water
resources are situated, including by the
regulation of activities detrimental to
25 them;
(b) to promote the orderly, equitable and efficient
use of water resources;
(c) to foster consultation with members of local
communities in the local administration of this
30 Part, and to enable them to participate in that
administration; and
page 6
Rights in Water and Irrigation Amendment Bill 1999
Amendments relating to the long title, definitions and other Part 2
miscellaneous matters
s. 7
(d) to assist the integration of the management of
water resources with the management of other
natural resources.
(2) The reference to "use and development" in
5 subsection (1)(a)(i) includes use and development for
domestic, commercial, recreational, cultural and
navigational purposes.
(3) The Commission is to seek to ensure that the objects
stated in subsection (1) are achieved, and other persons
10 are to do so to the extent that they have relevant
functions under this Part.
4A. Meaning of "watercourse" in this Part
In this Part --
"watercourse" includes waters flowing from a spring
15 to which this Part applies.
5. Waters to which this Part does not apply
(1) This Part does not apply to or in relation to --
(a) the water flowing from any spring the water of
which rises to the surface on land that has been
20 granted or demised by the Crown until it has
passed beyond the boundaries of the land
belonging to the owner or occupier of the land
on which the water so rises; or
(b) the water in any wetland the bed of which is on
25 land that has been granted or demised by the
Crown and is wholly within the boundaries of
the land belonging to the owner or occupier of
the land on which it is situated,
unless the spring or wetland is prescribed by local
30 by-laws as being a spring or wetland to which this Part
applies.
page 7
Rights in Water and Irrigation Amendment Bill 1999
Part 2 Amendments relating to the long title, definitions and other
miscellaneous matters
s. 8
(2) A spring or wetland may not be prescribed as a spring
or wetland to which this Part applies unless --
(a) taking water from the spring or wetland will, in
the opinion of the water resources management
5 committee established under Division 3C for
the locality or localities in which the by-law is
intended to apply, have a significant impact on
the flow or level of a watercourse or wetland;
(b) that committee recommends to the Commission
10 that this Part applies to or in relation to the
spring or wetland; and
(c) the Commission recommends to the Minister
that this Part applies to or in relation to the
spring or wetland.
15 ".
8. Section 9 amended
(1) Section 9(1) is amended by deleting "any lake, lagoon, swamp
or marsh" and inserting instead --
" any wetland ".
20 (2) Section 9(1) is amended by deleting ", lake, lagoon, swamp or
marsh," and inserting instead --
" or wetland ".
(3) Section 9(2)(a) is amended as follows:
(a) by deleting "lake, lagoon, swamp or marsh" and
25 inserting instead --
" wetland ";
(b) in subparagraph (i), by deleting ", lake, lagoon, swamp
or marsh" and inserting instead --
" or wetland ".
page 8
Rights in Water and Irrigation Amendment Bill 1999
Amendments relating to the long title, definitions and other Part 2
miscellaneous matters
s. 9
9. Section 16 amended
Section 16(1)(a) is amended by deleting ", lake, lagoon, swamp,
or marsh," and inserting instead --
" or wetland ".
5 10. Section 20 amended
(1) Section 20(1) is amended by deleting "any lake, lagoon, swamp
or marsh" and inserting instead --
" any wetland ".
(2) Section 20(1) is amended by deleting ", lake, lagoon, swamp or
10 marsh," and inserting instead --
" or wetland ".
(3) Section 20(1)(c) is amended by deleting "the lake, lagoon,
swamp or marsh" and inserting instead --
" the wetland ".
15 11. Section 21 amended
(1) Section 21(1)(c) is amended by deleting "lake, lagoon, swamp
or marsh" and inserting instead --
" wetland ".
(2) Section 21(1) is amended by deleting ", lake, lagoon, swamp or
20 marsh" and inserting instead --
" or wetland ".
12. Section 26H amended
Section 26H(1) is amended by deleting "water-courses, lakes,
lagoons, swamps, marshes or underground" and inserting
25 instead --
" watercourses, wetlands or underground water ".
page 9
Rights in Water and Irrigation Amendment Bill 1999
Part 2 Amendments relating to the long title, definitions and other
miscellaneous matters
s. 13
13. Section 38 amended
Section 38(c) is amended by deleting "or water-course, lake,
lagoon, swamp or marsh" and inserting instead --
" , watercourse or wetland ".
5 14. References to "wetland" inserted instead of certain words in
various sections
(1) The Act is amended by deleting ", lake, lagoon, swamp or
marsh" where it occurs in the provisions referred to in the table
to this subsection and inserting instead --
10 " or wetland ".
Table
section 12(2)(a) section 17(6)
section 15(1) and (2) section 25(4)
section 16(2)
(2) The Act is amended by deleting ", lake, lagoon, swamp or
marsh," where it occurs in the provisions referred to in the table
to this subsection and inserting instead --
15 " or wetland ".
Table
section 6(5) section 10(1)
(3) The Act is amended by deleting ", lake, lagoon, swamp, or
marsh" where it occurs in the provisions referred to in the table
to this subsection and inserting instead --
20 " or wetland ".
Table
section 6(2), (3) and (5) section 19(1)
section 12(1)(a) and (b) section 22(1)(a)(i) and (ii)
section 16(2)
page 10
Rights in Water and Irrigation Amendment Bill 1999
Amendments relating to the long title, definitions and other Part 2
miscellaneous matters
s. 15
(4) The Act is amended by deleting "lake, lagoon, swamp or
marsh" where it occurs in the provisions referred to in the table
to this subsection and inserting instead --
" wetland ".
5 Table
section 17(3) section 25(1)
(5) The Act is amended by deleting "lake, lagoon, swamp, marsh"
where it occurs in the provisions referred to in the table to this
subsection and inserting instead --
" wetland ".
10 Table
section 26J(1) and (2)
15. References to "water-course" changed to "watercourse" in
various sections
The Act is amended by deleting "water-course" where it occurs
in the provisions referred to in the table to this section and
15 inserting instead --
" watercourse ".
Table
definition of "bed"(twice) section 17(2), (3) and (6)
section 6(2) and (3) section 18
section 6(5) (twice) section 19(1)
section 9(1) (twice) section 20(1) (twice)
section 9(2)(a) section 20(1)(c)
section 9(2)(a)(i) section 21(1)(c)
section 10(1) section 21(1)
section 12(1)(a) and (b) section 22(1)(a)(i) and (ii)
and (2)(a) section 25(1) and (4)
section 15(1), (2) and section 26H(1)
(4)(b) section 26J(1) and (2)
section 16(1)(a) section 39C
section 16(2) (twice)
section 17(1) (twice)
page 11
Rights in Water and Irrigation Amendment Bill 1999
Part 2 Amendments relating to the long title, definitions and other
miscellaneous matters
s. 16
16. Section 70 amended
Section 70 is amended by inserting after "Act," --
" shall be guilty of an offence and ".
page 12
Rights in Water and Irrigation Amendment Bill 1999
Amendments relating to water rights Part 3
s. 17
Part 3 -- Amendments relating to water rights
17. Heading to Part III amended
The heading to Part III is amended by deleting "WATERS" and
inserting instead --
5 " Water Resources ".
18. Division 1A inserted in Part III
After Division 1 the following Division is inserted --
"
Division 1A -- Ownership and control of waters
10 5A. Natural waters vest in Crown
The right to the use and flow, and to the control, of the
water at any time in any --
(a) watercourse;
(b) wetland; or
15 (c) underground water source,
vests in the Crown except as appropriated under this
Act or another written law.
5B. Saving for works
(1) The operation of section 5A does not prevent the owner
20 or occupier of land --
(a) subject to any relevant local by-laws, from --
(i) draining the land; or
(ii) making any dam or tank on the land, not
on a watercourse or wetland,
25 if as a result of doing so --
(iii) the flow of water in a watercourse, or
the amount of water in a wetland, is not
diminished; or
page 13
Rights in Water and Irrigation Amendment Bill 1999
Part 3 Amendments relating to water rights
s. 18
(iv) there is no significant adverse effect on
the quality of water, or any ecosystem,
in a watercourse, or a wetland; or
(b) from making any dam or tank on the land, not
5 on a watercourse or wetland, for watering cattle
or other stock, other than those being raised
under intensive conditions as defined in
section 21(4).
(2) In subsection (1) --
10 "diminished" means --
(a) sensibly diminished; or
(b) if local by-laws prescribe a greater
diminution of the flow or amount of water
for the purposes of this section, diminished
15 to a greater extent than is so prescribed.
5C. Unauthorized taking of water prohibited
(1) A person must not --
(a) take water from any watercourse, wetland or
underground water source to which this section
20 applies; or
(b) cause or permit any of those things to be done,
except under and in accordance with --
(c) a right conferred by --
(i) section 9, 10, 20, 21, 22 or 25A;
25 (ii) a local by-law of the kind referred to in
section 26L(3)(d); or
(iii) another written law;
or
(d) a licence under this section granted by the
30 Commission in accordance with Schedule 1.
Penalty: $10 000 and a daily penalty of $1 000.
page 14
Rights in Water and Irrigation Amendment Bill 1999
Amendments relating to water rights Part 3
s. 18
(2) This section applies to --
(a) a watercourse or wetland to which Division 1B
applies;
(b) a watercourse or wetland to which Division 2
5 applies if it is --
(i) prescribed by the regulations to be subject
to the operation of this section; or
(ii) situated within an area that is so
prescribed;
10 (c) any artesian underground water; and
(d) any other underground water if it is --
(i) in a proclaimed area under section 26B;
or
(ii) in an area that is prescribed by the
15 regulations for the purposes of
section 26B(3a).
(3) Schedule 1 has effect to make provision for and in
relation to the licences referred to in subsection(1)(d).
5D. Rights cannot be acquired by length of use
20 A right --
(a) to take and divert water;
(b) to the diversion of water; or
(c) to the exclusive use of water,
cannot be acquired by any person, by length of time of
25 use or otherwise, except under this Act or any other
written law.
5E. Civil remedy where unlawful taking of water affects
rights
(1) Subsection (2) applies if --
30 (a) a person contravenes section 5C; and
page 15
Rights in Water and Irrigation Amendment Bill 1999
Part 3 Amendments relating to water rights
s. 19
(b) the contravention affects --
(i) the exercise by a person of a right
referred to in section 5C(1)(c); or
(ii) the taking of water by a person under a
5 licence under section 5C.
(2) The contravention is a breach of statutory duty that is
actionable at the suit of a person referred to in
subsection (1)(b).
(3) Subsection (2) has effect subject to the defences and
10 other incidents applying to actions for breach of
statutory duty.
".
19. Heading to Division 1 of Part III amended
The heading to Division 1 of Part III is amended by deleting
15 "Division 1" and inserting instead --
" Division 1B ".
20. Section 6 amended
(1) Section 6(1) is repealed.
(2) Section 6(2) is amended by deleting "subsection (1)" and
20 inserting instead --
" section 5 ".
(3) Section 6(4) is repealed and the following subsection is inserted
instead --
"
25 (4) A proclamation under subsection (3) shall not be made
unless --
(a) the Commission has given notice of the
proposed proclamation --
(i) to each interested local government,
30 within the meaning of subsection (5);
and
page 16
Rights in Water and Irrigation Amendment Bill 1999
Amendments relating to water rights Part 3
s. 20
(ii) to each water resources management
committee established under
Division 3C for the locality or localities
to which the proclamation is intended to
5 apply;
(b) the local governments and water resources
management committees have been given the
opportunity to make submissions on the
proposal to the Commission;
10 (c) the Commission has called for public comment
on the proposal in accordance with
subsection (6); and
(d) the Commission has considered any
submissions made under this section and given
15 a report on them to the Minister.
".
(4) After section 6(5) the following subsections are inserted --
"
(6) The Commission is taken to comply with
20 subsection (4)(c) by --
(a) publishing in 2 issues of a daily newspaper
circulating in the locality concerned a notice
stating the proposal to make the proclamation;
and
25 (b) including in the notice a statement --
(i) specifying the places at which a copy of
the proposed proclamation may be
inspected or obtained;
(ii) indicating that written submissions on
30 the proposed proclamation may be made
by any person within a specified period;
and
page 17
Rights in Water and Irrigation Amendment Bill 1999
Part 3 Amendments relating to water rights
s. 21
(iii) showing the address to which
submissions may be delivered or posted.
(7) The period specified under subsection (6)(b)(ii) is to be
not less than 30 days after both of the notices referred
5 to in paragraph (a) of that subsection have been
published.
".
21. Section 8 repealed
Section 8 is repealed.
10 22. Section 9 amended
(1) Section 9(1) is amended as follows:
(a) by deleting paragraph (b) and inserting instead --
"
(b) for watering cattle or other stock, other than
15 those being raised under intensive conditions as
defined in section 21(4),
";
(b) by inserting after "extent" --
" and from which no produce is sold ".
20 (2) Section 9(3) and (4) are repealed and the following subsection is
inserted instead --
"
(3) This section has effect subject to Division 3A.
".
25 23. Section 10 amended
(1) Section 10(1) is amended as follows:
(a) by inserting after "stock" --
"
, other than those being raised under intensive
30 conditions as defined in section 21(4),
";
page 18
Rights in Water and Irrigation Amendment Bill 1999
Amendments relating to water rights Part 3
s. 24
(b) by inserting after "reserve" --
" at the point at which the water is taken ".
(2) Section 10(2) is repealed and the following subsection is
inserted instead --
5 " (2) This section has effect subject to Division 3A. ".
24. Section 11 replaced
Section 11 is repealed and the following section inserted
instead --
"
10 11. Works for purposes of section 10
(1) Section 10 does not authorize a person for the purpose
of taking water under that section --
(a) to do anything, or install any works or object,
that causes obstruction of or interference to a
15 watercourse or wetland or its bed or banks,
unless the person holds a permit granted by the
Commission authorizing the person to do so; or
(b) to do anything, or install any works or object,
that causes obstruction or disturbance of or
20 interference with a road or reserve, unless the
person is authorized to do so by the body in
which the control and management of the road
or reserve is vested.
(2) The regulations may make provision for the permits
25 referred to in subsection (1)(a), including provision for
the matters set out in section 27B.
".
page 19
Rights in Water and Irrigation Amendment Bill 1999
Part 3 Amendments relating to water rights
s. 25
25. Section 12 amended
(1) Section 12(1) is amended as follows:
(a) in paragraph (b)(ii) by inserting after "stock" --
"
5 , other than those being raised under
intensive conditions, as defined in
section 21(4)
";
(b) in paragraph (b)(iii) by inserting after "extent" --
10 " and from which no produce is sold ";
(c) by deleting the passage from "within 12 months after" to
the end of the subsection and inserting instead --
"
on application made under clause 4 of Schedule 1
15 within 12 months after the relevant day, be granted a
licence under section 5C authorizing the continuation
of such diversion, taking or use for the period of
10 years after that day.
".
20 (2) Section 12(3) to (12) are repealed.
26. Section 13 repealed
Section 13 is repealed.
27. Section 19 amended
(1) Section 19(1) is amended as follows:
25 (a) by deleting "subsection (2)" and inserting instead --
" section 5 ";
(b) by deleting "Division 1" and inserting instead --
" Division 1B ".
(2) Section 19(2) is repealed.
page 20
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Amendments relating to water rights Part 3
s. 28
28. Section 20 amended
(1) Section 20(1) is amended as follows:
(a) by inserting after "occupier of any land" --
" ("riparian land") ";
5 (b) in paragraph (b) by inserting after "stock" --
"
, other than those being raised under intensive
conditions as defined in section 21(4)
";
10 (c) by deleting the passage from "thereby sensibly
diminished" to the end of the subsection and inserting
instead --
"
thereby sensibly diminished, for any other
15 purpose,
but the right described in paragraph (c) may be made
inapplicable to, or be restricted in relation to, any
riparian land by the provisions of local by-laws that
apply to the land, and that paragraph is to be read
20 subject to any such provisions.
".
(2) Section 20(2) is repealed and the following subsections are
inserted instead --
"
25 (2) Every owner of riparian land that was --
(a) alienated from the Crown before the
commencement of this Act; or
(b) in the process of alienation at that
commencement,
30 has the right, in addition to the rights conferred by
subsection (1), to take water described in that subsection
page 21
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Part 3 Amendments relating to water rights
s. 29
for the irrigation of a garden not exceeding 2 hectares if
no produce is sold from the garden and the garden --
(c) is part of that land; and
(d) is used in connection with a dwelling.
5 (3) The owner of riparian land also has the right conferred
by subsection (2) in relation to a watercourse or
wetland where, although paragraph (a) or (b) of that
subsection does not apply --
(a) Division 1B has ceased to apply to the
10 watercourse or wetland; and
(b) immediately before that cessation a right of the
kind described in subsection (2), in relation to
that watercourse or wetland, was appurtenant to
the land by virtue of section 9(1).
15 (4) This section has effect subject to Division 3A.
".
29. Section 21 amended
(1) Section 21(1) is amended as follows:
(a) after paragraph (a) the following paragraph is
20 inserted --
" (aa) for firefighting; ";
(b) in paragraph (b) by inserting after "stock" --
"
other than those being raised under intensive
25 conditions
";
(c) in paragraph (c) by inserting before "to the" --
" subject to subsection (2), ";
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(d) by deleting "reserve" and inserting instead --
"
by a reserve for public access at the point where the
water is taken
5 ".
(2) Section 21(2) is repealed and the following subsections are
inserted instead --
"
(2) The right described in subsection (1)(c) may be made
10 inapplicable to, or be restricted in relation to, any
watercourse or wetland by the provisions of local by-laws
that apply to that watercourse or wetland, and that
paragraph is to be read subject to any such provisions.
(3) Subsection (1) has effect subject to Division 3A.
15 (4) In subsection (1)(b) --
"intensive conditions" means conditions in which the
cattle or stock --
(a) are confined to an area smaller than that
required for grazing under normal
20 conditions; and
(b) are usually fed by hand or by mechanical
means.
".
30. Section 21A inserted
25 After section 21 the following section is inserted --
"
21A. Works for purposes of section 21
(1) Section 21 does not authorize a person for the purpose
of taking water under that section --
30 (a) to do anything, or install any works or object,
that causes obstruction of or interference to a
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watercourse or wetland or its bed or banks,
unless the person holds a permit granted by the
Commission authorizing the person to do so; or
(b) to do anything, or install any works or object,
5 that causes obstruction or disturbance of or
interference with a road or reserve, unless the
person is authorized to do so by the body in
which the control and management of the road
or reserve is vested.
10 (2) The regulations may make provision for the permits
referred to in subsection (1)(a), including provision for
the matters set out in section 27B.
".
31. Section 22 amended
15 (1) Section 22(2) is repealed and the following subsections are
inserted instead --
"
(2) A direction given by the Commission under
subsection (1) --
20 (a) is to contain reasons for the direction; and
(b) may be varied or cancelled by the Commission
by subsequent notice in writing.
(2a) Clause 7(2) of Schedule 1 applies, with all necessary
changes, when the Commission is considering whether
25 to give or make, or is determining the contents of --
(a) any direction under subsection (1) as to the
diversion, taking or use of water otherwise than
in the exercise of a right referred to in that
subsection; or
30 (b) any variation of such a direction,
or is considering whether to cancel any such direction.
".
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(2) Section 22(4) is amended by inserting after "of the notice" --
" or such shorter time as is specified in the notice ".
32. Section 24 amended
Section 24 is amended by inserting after "section 22" --
5 "
or authorized by a licence under section 5C or by a
local by-law
".
33. Section 26 repealed and sections 25A and 26 inserted
10 Section 26 is repealed and the following sections are inserted
instead --
"
25A. Rights to take water from non-artesian wells in
prescribed areas
15 (1) This section applies to any non-artesian well in an area
that is prescribed as mentioned in section 26B(3a), but
subject to the provisions of --
(a) any local by-law referred to in section 26; and
(b) any other written law,
20 that are applicable to that well.
(2) A person may take water from a non-artesian well to
which this section applies and to which the person has
lawful access --
(a) for domestic and ordinary use;
25 (b) for firefighting;
(c) for watering cattle or other stock, other than
those being raised under intensive conditions as
defined in section 21(4); and
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(d) for any other purpose that is prescribed by a
local by-law referred to in subsection (1).
(3) The right conferred by subsection (2) does not include
authority to install any works or object on the land
5 concerned.
26. Local by-laws for section 25A
Local by-laws may be made for the regulation and
control of the taking of water under subsection (2) of
section 25A, and may include a prohibition in
10 particular circumstances on the taking of water for a
purpose mentioned in that subsection.
".
34. Section 26A amended
Section 26A(1) is amended by deleting ", alter, or draw water
15 from" and inserting instead --
" or alter ".
35. Section 26B amended
(1) Section 26B(3), (4) and (5) are repealed and the following
subsections are inserted instead --
20 "
(3) A person must not --
(a) commence, construct, enlarge, deepen or alter
any non-artesian well that is situate in a
proclaimed area; or
25 (b) cause, suffer or permit any of those things to be
done,
unless one of the following applies --
(c) the person does so under and in accordance
with a licence under section 26D;
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(d) the well is in an area specified in an order under
section 26C(2) and is used, or to be used, for a
purpose allowed by that order;
(e) an exemption or exclusion contained in local
5 by-laws referred to in section 26L(3)(c) applies;
or
(f) the work is allowed by subsection (4)(d).
(3a) Subsection (3) also applies to --
(a) all wells; or
10 (b) all wells of a class prescribed by the
regulations,
that are not situated in a proclaimed area but are
situated in an area that is prescribed by the regulations
to be subject to the operation of that subsection.
15 (4) Where any work required by this section to be the
subject of a licence has been commenced and is not
completed at the time when --
(a) a proclamation made under subsection (1); or
(b) regulations referred to in subsection (3a),
20 come into operation, the occupier of the land on which
the work was commenced --
(c) must, within 2 months after that coming into
operation, apply for a licence under
section 26D for that work; and
25 (d) may continue the work during that period and
until the application is finally determined
whether by the Commission or on appeal under
section 26GI.
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(5) Subject to section 26C, where an existing non-artesian
well is, by operation of --
(a) a proclamation made under subsection (1)
brought into a proclaimed area; or
5 (b) regulations referred to in subsection (3a)
brought under the operation of subsection (3),
the occupier of the land on which the well is
situated --
(c) must, within 2 months after the proclamation or
10 regulations come into operation, apply for a
licence under section 5C to take water from that
well; and
(d) may continue to take water from the well
without a licence during that period and until
15 the application is finally determined whether by
the Commission or on appeal under
section 26GI.
".
(2) Section 26B(6) is amended by deleting "not authorized by a
20 licence issued under section 26D" and inserting instead --
" prohibited by that subsection ".
36. Section 26C amended
(1) Section 26C(2) is amended as follows:
(a) by inserting after "declare that sections" --
25 " 5C and ";
(b) by inserting after "non-artesian well" --
" , or a type or types of non-artesian wells, ";
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(c) by deleting from "drawing" to the end of the subsection
and inserting instead --
"
taking of water and an Order published under this
5 subsection shall have effect according to its tenor.
".
(2) After section 26C(3) the following subsection is inserted --
"
(3a) Clause 7(2) of Schedule 1 applies, with all necessary
10 changes, when the Governor is considering whether to
make, or is determining the contents of --
(a) any order under subsection (1); or
(b) any variation of such an order,
or is considering whether to cancel any such order.
15 ".
(3) Section 26C(4) is amended as follows:
(a) in paragraph (a) by inserting after "contravene
section" --
" 5C or ";
20 (b) in paragraph (c) by deleting "drawing" and inserting
instead --
" taking ".
37. Section 26D amended
Section 26D(1) is amended by deleting ", or the drawing of
25 water from,".
38. Section 26F amended
Section 26F(1) is amended by deleting "nor shall the water from
the well be used for purposes other than those authorized by the
licence".
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39. Section 26G amended
(1) Section 26G(1) is amended by deleting "drawn" and inserting
instead --
" taken ".
5 (2) Section 26G(2) is amended as follows:
(a) by deleting "drawn" in both places where it appears and
inserting instead --
" taken ";
(b) by deleting "of draw, for" and inserting instead --
10 " at which it may be taken, from ";
(c) by deleting "draws water from" and inserting instead --
" relates to ".
(3) After section 26G(2) the following subsections are inserted --
"
15 (2a) A notice served on a person under this section --
(a) is to contain reasons for the direction; and
(b) takes effect --
(i) when it is served; or
(ii) at the later time provided for in the notice.
20 (2b) The Commission may at any time revoke or vary a
notice by further notice served on the person
concerned.
".
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40. Division 3A inserted in Part III
After Division 3 of Part III the following Division is inserted --
"
Division 3A -- Limitations on rights conferred by and
5 under Divisions 1B, 2 and 3
Subdivision 1 -- Limitations where water is augmented
26GA. Rights under sections 9, 10, 20 and 21 do not extend
to augmented volume of water
(1) Where the volume of water in any watercourse or
10 wetland is augmented by the introduction of water by
works constructed for that purpose, the rights conferred
by sections 9, 10, 20 and 21 to take water in that
watercourse or wetland --
(a) are subject to the limitations set out in
15 subsection (2); and
(b) may be exercised only in accordance with that
subsection and the regulations.
(2) A person is not entitled by section 9, 10, 20 or 21 to
take any more of the water of the watercourse or
20 wetland concerned than --
(a) the amount prescribed by local by-laws; or
(b) if paragraph (a) does not apply, the amount
calculated in accordance with subsection (3).
(3) The amount for the purposes of subsection (2)(b) is --
25 (a) the aggregate of --
(i) 14 kilolitres per day for --
(I) domestic and ordinary use; and
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(II) watering cattle or other stock,
in respect of every kilometre of frontage
measured by the general course to the
watercourse or wetland; and
5 (ii) where section 9 or 20 applies, 8 500
cubic metres per annum for the
irrigation of a garden as mentioned in
those sections;
or
10 (b) the amount of water that would be available to
the person and to which the person would be so
entitled but for the augmentation referred to in
subsection (1),
whichever is the lesser.
15 (4) Local by-laws may, for particular cases or classes of
cases, specify the amount of water to which
subsection (3)(b) refers, and any such specification is
conclusive as to that amount.
Subdivision 2 -- Limitations imposed by direction
20 26GB. Definition
In this Subdivision --
"water resource" means a watercourse, wetland or
underground water source to which section 26GC
applies.
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26GC. Commission may give directions
(1) Where this section applies to a water resource, the
Commission may by notice in writing served on a
person give directions to the person --
5 (a) restricting --
(i) the amount of water that the person may
take from the water resource;
(ii) the rate at which the water may be taken
by the person from the water resource;
10 or
(iii) the purpose for which the water taken
from the water resource may be used by
the person;
(b) prohibiting --
15 (i) the taking of water by the person from
the water resource; or
(ii) the purpose for which water taken from
the water resource by the person may be
used;
20 or
(c) imposing on the person obligations in terms of
any combination of the matters in
paragraphs (a) and (b).
(2) A person on whom a notice is served under
25 subsection (1) must not --
(a) take or use water; or
(b) cause or permit water to be taken or used,
in contravention of the directions given to the person in
the notice.
30 Penalty: $4 000 and a daily penalty of $400.
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(3) A notice served on a person under subsection (1) --
(a) is to contain reasons for the direction; and
(b) takes effect --
(i) when it is served; or
5 (ii) at the later time provided for in the
notice.
(4) The Commission may at any time revoke or vary a
notice by further notice served on the person
concerned.
10 26GD. When section 26GC applies
(1) Section 26GC applies to a watercourse, wetland or
underground water source if the Commission --
(a) has made a determination that the quantity of
water in the water resource is, or is likely to be,
15 insufficient to meet demand, including any
demand made by the needs of the environment;
or
(b) has made, and published in the Gazette, an
order declaring that a water shortage exists in
20 the area in which the water resource is situated,
and so long as any such determination or order has not
been revoked.
(2) Section 26GC also applies so as to enable the
Commission to give directions to a person who is
25 taking water from a water resource if in the opinion of
the Commission the taking of the water is having a
harmful effect on the water resource or the water being
taken --
(a) is being improperly used;
30 (b) is being wasted;
(c) is having a harmful effect; or
(d) is not being used to the best advantage.
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26GE. Further provisions as to orders and determinations
(1) An order may only be made under section 26GD(1)(b)
in respect of an area if the Commission considers that
the water available in the area is, or is likely to be,
5 insufficient to meet the demands for which it is
managed as described in section 4(1)(a).
(2) The Commission must --
(a) revoke a determination under
section 26GD(1)(a); and
10 (b) by order published in the Gazette, revoke an
order under section 26GD(1)(b),
as soon as it is satisfied that an insufficiency of the
kind referred to in subsection (1)(a) of that section or in
subsection (1) of this section, as the case may be, no
15 longer exists in relation to the water resource or area
concerned.
(3) On the revocation of a determination or order in
relation to a water resource or area any notice served
on a person under section 26GC that applies to that
20 water resource, or a water resource in that area, ceases
to have effect.
26GF. Directions override other rights
(1) Where a notice is served on a person under
section 26GC, any right that the person has --
25 (a) under section 9, 10, 20, 21 or 22;
(b) under the regulations or a local by-law; or
(c) by virtue of a licence under section 5C,
is displaced by, or has effect subject to, the provisions
of the notice so long as it continues in force.
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(2) If a direction given under section 26GC is inconsistent
with a direction given under section 22 or 26G --
(a) the direction under section 26GC prevails to the
extent of the inconsistency; and
5 (b) to that extent the other direction does not have
effect.
".
41. Section 26H amended
Section 26H(1) is amended by deleting "drawing" and inserting
10 instead --
" taking ".
42. Section 27 amended
(1) Section 27(1)(b), (c) and (d) are deleted.
(2) Section 27(1)(g) is amended by inserting after "licences" --
15 " under section 26D ".
43. Section 28 amended
Section 28 is amended as follows:
(a) after paragraph (1)(e) by deleting the semi-colon and
inserting a full stop;
20 (b) by deleting paragraph (1)(f); and
(c) by repealing subsection (3).
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Part 4 -- Amendments relating to local by-laws, water
resources management committees and plans for the
management of water resources
44. Divisions 3C and 3D inserted in Part III
5 After Division 3B of Part III, as inserted by section 64, the
following Divisions are inserted --
"
Division 3C -- Local water resources management
committees
10 26GK. Establishment of committees
(1) The Minister may determine that a water resources
management committee (a "committee") is to be
established for any locality or area of the State.
(2) Where subsection (1) applies, the Minister must,
15 subject to section 26GL, by order prescribe --
(a) the locality or area for which the committee is
established;
(b) the name of the committee;
(c) the manner in which the committee is to be
20 appointed; and
(d) other provisions relating to its membership,
constitution and procedures, including
providing that the terms of members'
appointments are to be varied, so that the terms
25 of all members do not expire at the same time.
(3) The Minister may at any time by further order amend
or revoke an order made under this section.
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(4) An order made under this section is to be published in
the Gazette for public information.
26GL. Certain requirements for orders under section 26GK
(1) An order made under section 26GK must make
5 provision for the members of a committee, so far as is
practicable, to be drawn --
(a) substantially from persons who --
(i) are residents of; or
(ii) employed in, or operate, a business in,
10 the locality or area for which the committee is
established; and
(b) from persons who --
(i) are representatives of a local
government;
15 (ii) are officers of public authorities having
functions in the locality or area;
(iii) have knowledge and experience relating
to the water needs and practices of local
communities, including Aboriginal
20 communities; or
(iv) are members of the board of
management of the Commission, or
members of staff as defined in the
Water and Rivers Commission Act 1995.
25 (2) An order made under section 26GK must also make
provision for the members of a committee, so far as is
practicable, to be collectively persons who have
knowledge of and experience in all or any of the
following --
30 (a) the management or development of water
resources or other natural resources;
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(b) the use of water resources;
(c) conservation of ecosystems;
(d) local government.
(3) If the functions of a committee relate mainly to the use
5 of water resources, persons who are users of those
resources are, as far as is practicable, to form a
majority of committee members.
(4) An order made under section 26GK must make
provision for notice of appointments to a committee to
10 be published in the Gazette for public information.
26GM. Functions of committees
(1) The functions of a committee are, in respect of the
locality or area for which it is established --
(a) to provide the Commission with --
15 (i) assistance; and
(ii) advice,
on matters relating to the functions of the
Commission to the extent that the Commission
asks the committee to do so;
20 (b) to perform the functions given to it --
(i) by section 26N(2), in respect of local
by-laws; and
(ii) by section 26GZ, in respect of a plan
under Division 3D;
25 (c) to perform any function of the Commission that
may be delegated to it by the Commission
under section 26GP;
(d) to ensure that the Commission is informed of,
and has access to, community views on matters
30 relating to water resources; and
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(e) to assist the Commission in the resolution of
disputes about the use of water resources
involving persons having rights under this Act
or persons affected by the exercise of those
5 rights.
(2) A committee in performing its functions is subject to
the direction and control of the Commission.
26GN. Particular duties of members
(1) A member of a committee must at all times act
10 honestly and diligently in performing the member's
functions under this Act.
(2) If a matter is before a meeting of a committee for
consideration and a member present at the meeting has
a direct or indirect pecuniary interest in the matter, the
15 member must disclose to the other members present at
the meeting, as soon as possible after the relevant facts
have come to the member's knowledge, that he or she
has an interest, and --
(a) the disclosure is to be recorded in the minutes
20 of the meeting; and
(b) the member must not subsequently be present
during any consideration or discussion of, and
is not to vote on any determination of, the
matter.
25 (3) An interest need not be disclosed under subsection (2)
if it is an interest common to a significant number of
residents of the locality or area for which the
committee is established.
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(4) Subsection (2)(b) does not apply if the committee has,
without the presence of the member who has disclosed
the interest, at any time passed a resolution that --
(a) specifies the member, the interest and the
5 matter; and
(b) states that the members voting for the
resolution are satisfied that the interest should
not disqualify the member from considering or
voting on the matter.
10 (5) A member of a committee must not disclose any
information acquired by virtue of the performance of
any function under this Act unless the disclosure is
made in connection with the carrying out of this Act or
under a legal duty.
15 (6) A member of a committee must not make use of any
information acquired by virtue of the performance of
the member's functions to gain, directly or indirectly,
an improper advantage for the member or to cause
detriment to any person.
20 (7) A member of a committee who commits a breach of
any provision of this section --
(a) is liable to the Crown for any profit made by
the member as a result of the breach of that
provision; and
25 (b) commits an offence and is liable to a fine of
$10 000.
(8) This section is in addition to and not in derogation of
any other law relating to the duty or liability of the
holder of a public office.
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26GO. Procedure
Subject to this Division, a committee is to determine its
own procedure.
26GP. Delegation
5 (1) The Commission may, by instrument in writing,
delegate to a committee the performance of any
function conferred on the Commission by this Act,
other than this power of delegation.
(2) A function performed by a committee as delegate of
10 the Commission is to be taken to be performed by the
Commission.
(3) A committee performing a function under this section
is to be taken to do so in accordance with the terms of
the delegation unless the contrary is shown.
15 26GQ. Commission to provide support
The Commission is to provide a committee with
such --
(a) administrative support; and
(b) facilities,
20 as it reasonably requires for the performance of its
functions.
26GR. Remuneration
Members of a committee are entitled to such
remuneration and allowances as the Minister
25 determines on the recommendation of the Minister for
Public Sector Management.
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26GS. Protection from liability
(1) An action in tort does not lie against a member of a
committee for anything that the member has, in good
faith, done in the performance or purported
5 performance of a function under this Act.
(2) The protection given by this section applies even
though the thing done in the performance or purported
performance of a function of a committee may have
been capable of being done whether or not this Act had
10 been enacted.
(3) In this section, a reference to the doing of anything
includes a reference to the omission to do anything.
26GT. Execution of documents by committee
(1) A committee may, by resolution in writing, authorize a
15 member or members of the committee to sign
documents on behalf of the committee, either generally
or subject to such conditions or restrictions as are
specified in the resolution.
(2) A document is duly executed by a committee if it is
20 signed on behalf of the committee by a person or
persons authorized to do so under subsection (1).
(3) A document purporting to be executed on behalf of a
committee is to be presumed to be duly executed until
the contrary is shown.
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Division 3D -- Plans for management of
water resources
Subdivision 1 -- Plans and their contents
26GU. Preparation of plans
5 (1) A plan for the purposes of this Act --
(a) is to be prepared by the Commission if the
Minister directs the Commission to do so; and
(b) may be prepared by the Commission if in the
opinion of the Commission it is desirable to do
10 so.
(2) A plan does not have effect unless it is approved under
section 26GZE after the requirements of Subdivision 2
have been complied with.
26GV. Classification of plans
15 (1) A plan may be --
(a) a regional management plan;
(b) a sub-regional management plan; or
(c) a local area management plan.
(2) A regional management plan, a sub-regional
20 management plan and a local area management plan
may relate to more than one region, sub-region and
local area respectively.
(3) A regional management plan, sub-regional
management plans for that region and local area
25 management plans for the areas in that region may be
combined in one document.
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26GW. Purposes of regional management plans
(1) A regional management plan must indicate the region
to which it applies.
(2) The purpose of a regional management plan is to set
5 out the matters that are to guide the general
management by the Commission of water resources in
the region to which it applies, in relation to --
(a) the definition of water resource values,
including environmental values, and the
10 protection of those values;
(b) the use of water resources; and
(c) the integration of water resources planning and
management with land use planning and
management.
15 26GX. Purposes of sub-regional management plans
(1) A sub-regional management plan must indicate the part
of a region to which it applies.
(2) The purpose of a sub-regional management plan is to
set out particular matters that are to guide the
20 management by the Commission of water resources in
the sub-region to which it applies, including --
(a) how the investigation and development of
water resources are to be facilitated by the
Commission;
25 (b) how rights in respect of water are to be
allocated to meet various needs, including the
needs of the environment;
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(c) the matters of sub-regional significance that,
consistently with this Act, will be taken into
account by the Commission in considering --
(i) applications for licences made under
5 Division 2 of Schedule 1;
(ii) the exercise of powers to renew, amend,
suspend and cancel licences under
Divisions 5 and 6 of that Schedule; and
(iii) applications for the Commission's
10 approval of transfers of licences and
water entitlements made under
Division 7 of that Schedule;
(d) the Commission's assessment of --
(i) the capacity of water sources to provide
15 water at sustainable levels of use; and
(ii) the environmental impact of developing
those sources;
and
(e) the strategies that will be adopted or developed
20 to implement the plan.
(3) A sub-regional management plan must not be
inconsistent with the relevant regional management
plan.
26GY. Purposes of local area management plans
25 (1) A local area management plan must indicate the area or
areas in the relevant sub-region to which it applies.
(2) The purpose of a local area management plan is to set
out particular matters that are to guide the management
by the Commission of water resources in the area or
30 areas to which it applies, including --
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(a) how rights in respect of water are to be
allocated, and water may be taken and used, to
meet various needs including the needs of the
environment;
5 (b) the matters that, consistently with this Act, will
be taken into account by the Commission in
considering --
(i) applications for licences made under
Division 2 of Schedule 1;
10 (ii) the exercise of powers to renew, amend,
suspend and cancel licences under
Divisions 5 and 6 of that Schedule; and
(iii) applications for the Commission's
approval of transfers of licences and
15 water entitlements made under
Division 7 of that Schedule;
and
(c) the nature and extent of the delegated authority
that will be conferred on a relevant water
20 resources management committee under
section 26GP, and the conditions and
restrictions that will apply to the exercise of
that authority.
(3) A local area management plan must not be inconsistent
25 with the relevant regional management plan and
sub-regional management plan.
26GZ. Consultation with water resources management
committees
A plan, or an amendment to a plan, may only be --
30 (a) prepared;
(b) modified under section 26GZC(3)(a) or
26GZD; or
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(c) revoked and a new plan substituted for it under
section 26GZG,
after consultation with any water resources
management committee under Division 3C that is in
5 existence for the region, sub-region or area to which
the plan relates.
Subdivision 2 -- Public consultation and approval of plans
26GZA. Plan to be publicly notified
(1) Public notification that a proposed plan has been
10 prepared must be given in accordance with
subsections (2) and (3).
(2) A notice complying with subsection (3) must be
published --
(a) in the Gazette; and
15 (b) in 2 issues of a daily newspaper circulating
throughout the State.
(3) The notice must --
(a) specify the region, sub-region or area to which
the plan relates;
20 (b) describe in general terms the purpose for which
the plan is to be made;
(c) specify the places at which --
(i) a copy of the plan may be inspected;
and
25 (ii) copies of the plan may be obtained;
and
(d) state the effect of section 26GZB and specify
the period and the address or addresses referred
to in that section.
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26GZB. Public submissions
Written submissions on the proposed plan may be
made by any body or person --
(a) within a period determined by the Commission,
5 which period must be not less than 2 months
after the day on which the notice under
section 26GZA is published in the Gazette; and
(b) by delivering or posting them, so that they are
received within that period at an address
10 designated by the Commission.
26GZC. Referral of plan to other bodies
(1) If in the opinion of the Commission the proposed plan
may affect the functions of a body that is responsible
for the planning for, or management of, a natural
15 resource, the Commission must submit the proposed
plan to that body.
(2) The Commission may submit the proposed plan to any
other body or person it thinks appropriate.
(3) A plan submitted under subsection (1) or (2) --
20 (a) is to be as it may be modified by the
Commission after considering submissions
made under section 26GZB; and
(b) in any case is to be accompanied by a summary
of those submissions.
25 (4) If any such body or person considers that the
Commission should amend the plan, it may within one
month after receipt of the proposed plan under
subsection (1) or (2), in writing, request the
Commission to make the amendment.
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26GZD. Modification of plan
The Commission may modify the proposed plan as it
thinks fit to give effect to --
(a) submissions made under section 26GZB; and
5 (b) any request under section 26GZC(4).
26GZE. Approval of plan
(1) The Commission must, except where subsection (4)
applies, submit the proposed plan, modified as it thinks
fit under section 26GZD, to the Minister for approval.
10 (2) The plan as so submitted must be accompanied by --
(a) a summary of all submissions made under
section 26GZB and requests made under
section 26GZC(4); and
(b) a report of the Commission indicating its
15 opinion of the merits of those submissions and
requests.
(3) The Minister may approve the proposed plan, or
approve it with such modifications as the Minister
thinks fit.
20 (4) The Minister may by instrument delegate to the
Commission the exercise of the powers vested in the
Minister by subsection (3) in relation to --
(a) all plans to which this Division applies; or
(b) any particular class or description of plans.
25 (5) Anything done by the Commission under such a
delegation is to be taken to have been done by the
Minister.
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26GZF. Notice and commencement
(1) Notice that a plan has been approved must be published
in the Gazette, together with a note showing --
(a) whether any modifications were made under
5 section 26GZE(3); and
(b) where a copy of the plan may be inspected or
obtained.
(2) A plan has effect from --
(a) the day of publication in the Gazette of a notice
10 under subsection (1); or
(b) such later day as is specified in the plan.
26GZG. Revocation, amendment and correction of plan
(1) A plan may be amended, or revoked and a new plan
substituted for it, subject to compliance with
15 sections 26GZA to 26GZF which are to apply with all
necessary changes.
(2) The Commission may --
(a) correct any clerical mistake, error or inaccuracy
in, or accidental omission from, a plan; or
20 (b) replace any factual information set out in a plan
if the information has become out of date.
(3) Notice of any such correction or replacement must be
published in the Gazette for public information.
".
25 45. Sections 26L, 26M and 26N inserted
After section 26K the following sections are inserted --
"
26L. Local by-laws
(1) The Minister may make by-laws for the purposes of
30 this Act ("local by-laws") that are applicable in a
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locality or localities in the State specified in the
by-laws.
(2) Local by-laws may be made under subsection (1)
prescribing or providing for any matter --
5 (a) that is required or permitted by this Act to be
prescribed or provided for by local by-laws; or
(b) that is necessary or convenient to be prescribed
for the purpose of achieving the objects of this
Act.
10 (3) Without limiting subsection (2), local by-laws may
make provision for and in relation to --
(a) the construction, provision, maintenance, repair
and removal of works relating to water
resources;
15 (b) the manner in which water may be taken;
(c) the exemption or exclusion of --
(i) acts, persons or things; or
(ii) acts, persons or things in a specified
area,
20 from the application of particular provisions of
this Act, the regulations or the by-laws;
(d) the authorization of persons to take water from
a watercourse, wetland or underground
source --
25 (i) for particular purposes; or
(ii) under particular circumstances,
or both of those kinds of cases; and
(e) the duties of licensees and other persons on
whom rights are conferred by or under this Act,
30 including duties in respect of --
(i) monitoring and reporting on water
resources;
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(ii) the recording and supply of information;
and
(iii) the taking and analysis of samples of
water.
5 (4) If a provision of local by-laws is inconsistent with a
provision of the regulations, the latter provision
prevails to the extent of the inconsistency.
(5) If a provision of local by-laws is inconsistent with a
provision of by-laws made under section 34 of the
10 Water Agencies (Powers) Act 1984, the former
provision prevails to the extent of the inconsistency.
(6) Section 34(3)(a) of the Water Agencies (Powers)
Act 1984 does not apply to any local by-law.
26M. Licensing schemes under local by-laws
15 Local by-laws that provide for the licensing of persons
to do anything that is otherwise prohibited may make
provision for --
(a) the matters that are to be, or may be, taken into
account in considering applications for
20 licences;
(b) fees that are to be paid in connection with
licences;
(c) different licences to authorize the doing of
different things under the by-laws;
25 (d) the conditions and restrictions that may be
attached to licences, whether at the time of
grant or later, and the cancellation, variation
and enforcement of conditions and restrictions;
(e) the duration of licences and their renewal;
30 (f) the cancellation, suspension, amendment and
transfer of licences; and
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(g) appeals against decisions relating to applications
made and licences granted under the by-laws.
26N. Prerequisites for making local by-laws
(1) Before the Minister makes, amends or repeals any local
5 by-laws under section 26L the Minister is to be
satisfied that the requirements of this section, and
where relevant, section 5, have been complied with.
(2) The requirements are that --
(a) a draft of a proposed legislative scheme for the
10 by-laws, or the amendment or the repeal, must
have been referred by the Commission to any
water resources committee established under
Division 3C for the locality or localities in
which the by-laws are intended to apply;
15 (b) any such committee must have been given the
opportunity to make submissions on the
proposal to the Commission;
(c) if the Commission is of the opinion that the
proposal may affect the functions of a body that is
20 responsible for the planning for, or management
of, a natural resource, the Commission is to
submit the proposal to that body;
(d) the Commission must have called for public
comment on the proposal in accordance with
25 subsection (3); and
(e) the Commission must have considered any
submissions made under this section and given
a report on them to the Minister.
(3) The Commission is taken to comply with
30 subsection (2)(c) by --
(a) publishing in 2 issues of a daily newspaper
circulating in the locality concerned a notice
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stating the proposal to make, amend or repeal
the by-laws; and
(b) including in the notice a statement --
(i) specifying the places at which a copy of
5 the proposed legislative scheme for the
by-laws, or the amendment or repeal,
may be inspected or obtained;
(ii) indicating that written submissions on
the proposed scheme or amendment or
10 repeal may be made by any person
within a specified period; and
(iii) showing the address to which
submissions may be delivered or posted.
(4) The period specified under subsection (3)(b)(ii) is not
15 to be less than 30 days after both of the notices referred
to in paragraph (a) of that subsection have been
published.
".
46. Section 39 replaced
20 Section 39 is repealed and the following section is inserted
instead --
"
39. Appropriation of water for irrigation
Subject to Part III, the Commission may appropriate
25 water for the purposes of this Part.
".
47. Section 59 amended
Section 59(1)(10) is deleted.
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Part 5 -- Amendments relating to licensing
48. Division 3E inserted in Part III
After Division 3D of Part III, as inserted by section 44, the
following Division is inserted --
5 "
Division 3E -- Register of instruments
26GZH. Definition
In this Division --
"instrument" means --
10 (a) a licence under section 5C;
(b) an exemption under section 26C; and
(c) a direction under section 22, 26G or 26GC;
"security interest" means an interest in a licence
(however arising) that secures payment of a debt
15 or other pecuniary obligation or the performance
of any other obligation.
26GZI. Register
(1) The Commission is to keep a register of instruments.
(2) The register may be kept in such form as the
20 Commission thinks fit.
(3) The register must be available for public inspection,
subject to payment of the prescribed fee (if any),
during normal office hours at --
(a) the Commission's principal office; and
25 (b) at other offices of the Commission determined
by the Commission.
(4) A person may, upon application to the Commission and
payment of the prescribed fee, if any, obtain a copy of
an entry in, or an extract from, the register.
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(5) The Commission may, subject to payment of the
prescribed fee, if any, allow a person access to the
register in electronic form.
26GZJ. Information to be included in register
5 (1) The register must set out the following details in
respect of each instrument --
(a) the nature of the instrument and the provision or
provisions of this Act under which it has effect;
(b) the period for which it is in force;
10 (c) the name and business address --
(i) in the case of a licence under
section 5C, of the person who for the
time being holds the licence; or
(ii) in the case of a direction under
15 section 22, 26G or 26GC, of the person
who is bound by the direction;
(d) a description of the water resource to which the
instrument relates, including the locality in
which, and a legal description of the land on
20 which, it is situated;
(e) in the case of a licence, details relating to any
security interest in the licence that the
Commission is required to note on the register
under section 26GZM;
25 (f) details of any conviction of a person referred to
in paragraph (c) for an offence against this Act;
and
(g) any other details that are prescribed by the
regulations.
30 (2) In the case of a licence under section 5C held by the
holder of an operating licence, the details referred to in
subsection (1) are to be set out in a separate part of the
register.
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(3) In subsection (2) --
"operating licence" means --
(a) an operating licence (water supply services);
or
5 (b) an operating licence (irrigation services),
under the Water Services Coordination Act 1995.
26GZK. Transfer of licence to be recorded
(1) Where a transfer of a licence or a water entitlement
under a licence is approved by the Commission under
10 clause 31 of Schedule 1, the Commission is to amend
the Register to accurately reflect the transfer as soon as
practicable.
26GZL. Application for notation of security interest
A licensee may apply to the Commission in a form
15 approved by the Commission to have noted on the
register that a specified person has a security interest in
the licence.
26GZM. Notation of security interest
(1) The Commission must --
20 (a) on application being made under
section 26GZL; and
(b) payment of the prescribed fee, if any,
make a notation on the register that the person
specified in the application has a security interest in the
25 relevant licence.
(2) The notation must set out the following details in
respect of the security interest --
(a) a general description of the nature of the
security interest;
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(b) the name and business address of the person
who has the security interest; and
(c) such other details, if any, as are prescribed.
26GZN. Commission not to be concerned with certain
5 matters
(1) The Commission is not to be concerned with --
(a) the nature of any security interest that is the
subject of an application under section 26GZL;
or
10 (b) whether or not the person specified in the
application as having the security interest
actually has that interest.
(2) A notation on the register that a person has a security
interest in a licence does not give the interest any force
15 that it would not have had if this Division had not been
enacted.
26GZO. Person who has security interest to be notified of
certain events
If the register contains a notation made under
20 section 26GZM that a person has a security interest in a
licence and --
(a) the licensee is convicted of an offence against
this Act;
(b) application is made to the Commission --
25 (i) under clause 23 of Schedule 1 to amend
the licence; or
(ii) under clause 32 of that Schedule for
approval of the transfer of the licence;
(c) the Commission proposes --
30 (i) not to renew the licence under clause 22
of Schedule 1;
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(ii) to amend the licence under clause 24 of
that Schedule; or
(iii) to cancel or suspend the licence under
clause 25 of that Schedule;
5 or
(d) the Commission is notified that the licensee
wishes to surrender the licence under clause 27
of Schedule 1,
the Commission must as soon as practicable give or
10 cause to be given to the person specified in the notation
written details of that fact.
26GZP. Coordinator of Water Services to be notified of
certain events
(1) If --
15 (a) a licence is recorded in the part of the register
mentioned in section 26GZJ(2); and
(b) any of the events described in section 26GZO
occurs in relation to the licence,
the Commission must as soon as practicable give or
20 cause to be given to the Coordinator of Water Services
written details of that fact.
(2) In subsection (1) --
"Coordinator of Water Services" means the holder of
the office referred to in section 4 of the Water
25 Services Coordination Act 1995.
26GZQ. Removal or variation of notation
(1) If the register contains a notation that a person has a
security interest in a licence, the licensee may apply to
the Commission in a form approved by the
30 Commission to --
(a) remove the notation from the register; or
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(b) vary any details relating to the security interest.
(2) Where an application is made under subsection (1), the
Commission --
(a) is to give notice of the application to a person
5 noted on the register as having a security
interest in the licence; and
(b) must not remove the notation of the security
interest from the register or vary the details in
the register (as the case requires) unless --
10 (i) each person noted on the register as
having a security interest in the licence
consents in writing to it doing so; or
(ii) a court authorizes or directs the
Commission to do so, at the suit of the
15 licensee, a person referred to in
subparagraph (i) or some other
interested person.
26GZR. Register may be amended
The Commission may amend, add to and correct the
20 register in such manner as is necessary to make the
register an accurate record of the details it contains.
26GZS. No compensation payable
No compensation is payable in respect of anything
done or omitted to be done in good faith by the
25 Commission in the performance or purported
performance of any duty, or the exercise or purported
exercise of any power, under this Division.
26GZT. Regulations relating to register
The regulations may --
30 (a) prescribe fees and charges payable in respect of
anything done under this Division; and
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(b) provide for any other matter relating to the
register.
".
49. Section 26Q inserted
5 After section 26P, as inserted by section 54, the following
section is inserted --
"
26Q. Commission may undertake certain work
(1) The Commission may, with the approval of the
10 Minister, by agreement with a person or group of
persons holding any water entitlement, perform work
or supply services relating to the inspection or
monitoring of a water resource for the benefit of the
person or group of persons.
15 (2) An agreement made by the Commission under
subsection (1) may provide for the payment to the
Commission by the person or persons of an agreed
amount for the work performed or the services
supplied.
20 (3) In this section --
"water entitlement" means a right to take water under
this Act or under a licence granted under this Act.
".
50. Sections 27A and 27B inserted
25 After section 27 the following sections are inserted --
"
27A. Regulations may require other acts to be licensed
(1) The regulations may --
(a) prohibit a person from engaging in any work or
30 activity to which this section applies unless the
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person is authorized to do so by a licence
granted by the Commission under the
regulations;
(b) impose penalties --
5 (i) not exceeding $10 000 and a daily
penalty of $1 000 for engaging in any
work or activity to which this section
applies otherwise than under such a
licence; and
10 (ii) not exceeding $2 000 and a daily
penalty of $200 for any other breach of
regulations made under this section;
and
(c) confer on the Commission powers --
15 (i) to direct that works that contravene
regulations so made be removed at the
expense of the owner or occupier of the
land on which the works are situate; and
(ii) if a direction is not complied with to --
20 (I) effect the removal; and
(II) recover the cost of doing so
from that owner or occupier,
and making provision incidental and
supplementary to those powers.
25 (2) This section applies to work or activity that --
(a) involves the discharge of water that results in a
significant increase in the flow or level of water
in a watercourse, wetland or underground water
source;
30 (b) is likely to cause or result in damage to an
aquifer; or
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(c) consists of the construction or operation of
drainage or dewatering works that are likely to
affect the water in a watercourse, wetland or
underground water source.
5 27B. Regulations as to licences and permits
Where this Act authorizes or requires the regulations to
provide for the grant of a licence or permit by the
Commission, the regulations may make provision
for --
10 (a) the matters that are to be, or may be, taken into
account by the Commission in considering
applications for licences or permits;
(b) fees that are to be paid in connection with
licences or permits;
15 (c) different licences or permits to authorize the
doing of different things under the regulations;
(d) the conditions and restrictions that may be
attached to licences or permits, whether at the
time of grant or later, and the cancellation,
20 variation and enforcement of conditions and
restrictions;
(e) the duration of licences or permits and their
renewal;
(f) the cancellation, suspension, amendment and
25 transfer of licences or permits;
(g) the combination of a licence or permit under
the regulations and a licence under section 5C
in a single instrument; and
(h) appeals against decisions relating to
30 applications made and licences or permits
granted under the regulations.
".
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51. Schedule 1 added
After Part XI the following Schedule is added --
"
Schedule 1 -- Licensing and related provisions
5 [s. 5C(1)(d) and (3)]
Division 1 -- Preliminary
1. Definition
In this Schedule, unless the contrary intention appears --
"licence" means a licence under section 5C.
10 2. Licences for different purposes
(1) Licences of different descriptions may be granted under
section 5C to authorize the doing of different things that
come within that section.
(2) Licences to authorize the doing of different things that come
15 within section 5C may be contained in a single instrument.
(3) Where a person is granted --
(a) a licence under section 5C; and
(b) a licence under section 26D,
in respect of a well the licences may be combined in a single
20 instrument.
3. Persons who are eligible to hold licences
A person is eligible to hold a licence if --
(a) the person is an owner or occupier of the land to
which the licence relates;
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(b) the person does not come within paragraph (a) but
satisfies the Commission --
(i) that the owner and any occupier of the land
to which the licence relates have agreed in
5 writing to the person --
(I) being on the land; and
(II) doing there the things that may be
done under the licence;
and
10 (ii) that the agreement is likely to have effect
for a sufficient period to enable the licence
concerned to operate;
(c) the person is a public utility that has powers under a
written law in relation to water on or under any
15 land, but those powers are exercisable in accordance
with a licence;
(d) the person is --
(i) authorized by or under a written law to
engage in an activity in relation to land or
20 water; and
(ii) satisfies the Commission that the doing of
the things that may be done under the
licence is recognized by that written law as
being related or incidental to that activity;
25 or
(e) the person is within a class or description of persons
that is prescribed by local by-laws for the purposes
of this clause.
Division 2 -- Applications and licensing decisions
30 4. Applications for licences
(1) An application for a licence --
(a) may only be made by a person who is eligible to
hold the licence, or who satisfies the Commission
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that he or she is interested in being such a person
and is likely to do so;
(b) must be made in the form specified for the purpose
by the Commission;
5 (c) must include, or be accompanied by, any plans or
other information that are stated in the form to be
required; and
(d) must be accompanied by the prescribed fee.
(2) An applicant for a licence must provide the Commission
10 with any further information that the Commission may
require.
(3) Paragraph (a) of subclause (1) does not prevent an agent
from signing an application made by a person referred to in
that paragraph.
15 5. Advertising of applications
The regulations may provide for and in relation to --
(a) the public notification of --
(i) applications, or specified kinds of
applications, for the grant or renewal of a
20 licence; or
(ii) applications that the Commission
determines are to be publicly notified;
(b) a right to make submissions to the Commission on
applications mentioned in paragraph (a); and
25 (c) the persons who are to have that right.
6. Right to make representations
(1) This clause applies where the Commission proposes --
(a) to refuse an application for a licence; or
(b) to grant, or undertake to grant, a licence subject to
30 the inclusion of a term, condition or restriction that
it considers is inconsistent with the terms of the
application.
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(2) The Commission is to notify the applicant --
(a) of its proposal; and
(b) that the applicant has a right to be heard by, or to
make written submissions to, the Commission
5 before the Commission makes a decision on the
application.
(3) Written submissions may be made by the applicant, as
mentioned in subclause (2)(b), within 30 days after the
applicant is given notice under that subclause.
10 (4) The Commission is to have regard to any submissions made
by the applicant under subclause (3) before it makes its final
decision.
7. Grant or refusal at Commission's discretion
(1) The grant or refusal of an application for a licence and the
15 terms, conditions and restrictions to be included in the
licence are, subject to clause 8, at the discretion of the
Commission.
(2) In exercising that discretion the Commission is to have
regard to all matters that it considers relevant, including
20 whether the proposed taking and use of water --
(a) are in the public interest;
(b) are ecologically sustainable;
(c) are environmentally acceptable;
(d) may prejudice other current and future needs for
25 water;
(e) would, in the opinion of the Commission, have a
detrimental effect on another person;
(f) could be provided for by another source;
(g) are in keeping with --
30 (i) local practices;
(ii) a relevant local by-law;
(iii) a plan approved under Part III Division 3D
Subdivision 2; or
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(iv) relevant previous decisions of the
Commission;
or
(h) are consistent with --
5 (i) land use planning instruments;
(ii) the requirements and policies of other
government agencies; or
(iii) any intergovernmental agreement or
arrangement.
10 (3) The Commission may refuse to grant a licence to a person
on the ground that the person has been convicted of an
offence against this Act.
(4) The Commission may refuse to grant a licence to a person if
it is not satisfied that the person has the resources, including
15 the financial resources, to carry out the activities to which
the licence relates.
(5) Without limiting subclause (1), terms, conditions and
restrictions prescribed or imposed for the purposes of that
subclause may relate to any matter provided for by the
20 Appendix to this Schedule.
8. When Commission must refuse licence
The Commission must refuse to grant a licence to a person
if it considers that the person would not be willing or able to
comply with the terms, conditions and restrictions that
25 would be included in the licence.
9. Where applicant is not a person eligible to hold a licence
(1) The Commission may only grant a licence to a person who
is eligible in terms of clause 3 to hold the licence.
(2) If the Commission would grant a licence to an applicant but
30 for the fact that the applicant is not a person who is eligible
in terms of clause 3 to hold the licence, the Commission
may undertake to grant the licence to the person if the
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person becomes eligible to hold the licence within the
period of time specified in the undertaking.
10. Commission to give certain information
(1) The Commission is to notify the outcome of the application,
5 including details of any undertaking given under clause 9
and the terms, conditions and restrictions to be included in
the licence --
(a) to the applicant for a licence; and
(b) if the application was required to be publicly
10 notified under regulations referred to in clause 5, to
any person who made a submission under those
regulations.
(2) If the Commission --
(a) refuses the application; or
15 (b) grants, or undertakes to grant, the application
subject to the inclusion of a term, condition or
restriction that the Commission considers is
inconsistent with the terms of the application,
the Commission is to notify the applicant of the reasons for
20 the decision.
11. Licences may be combined
A licence may relate to more than one place, facility or well
at or from which water may be taken.
12. Duration of licences
25 (1) A licence may be granted or renewed for --
(a) a fixed period; or
(b) an indefinite duration,
as stated in the licence or the renewal.
(2) A licence for an indefinite duration continues in force until
30 it is --
(a) terminated under clause 13(1);
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(b) suspended or cancelled under clause 25; or
(c) surrendered under clause 27.
(3) A licence granted on the making of an application as
mentioned in section 12(1) --
5 (a) is, despite subclause (1), to be granted for the period
of 10 years referred to in that section; and
(b) is not renewable as a licence for the purposes of that
section.
13. Licensee becoming ineligible
10 (1) Subject to subclause (2) and clause 14, a licence is
terminated if the licensee ceases to be eligible in terms of
clause 3 to hold the licence.
(2) The regulations may make provision applicable to cases
other than those referred to in clause 14 --
15 (a) for the time at which termination under
subclause (1) has effect; and
(b) in relation to the transfer of the licence, or a water
entitlement under the licence, under Division 7
where the licensee ceases to be eligible in terms of
20 clause 3 to hold the licence.
14. Licensee ceasing to be owner or occupier of land
(1) Where --
(a) the licensee is the owner or occupier of the land to
which the licence relates; and
25 (b) another person becomes the owner or occupier of
the land in place of the licensee,
clause 13(1) applies subject to the following provisions --
(c) the licensee and the new owner or occupier are
allowed a period of 30 days from the day of change
30 of ownership or occupancy to make an application
under Division 7 for approval of the transfer of the
licence to the new owner or occupier;
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(d) the new owner or occupier is taken to be the
licensee --
(i) during that period; and
(ii) if an application referred to in paragraph (c)
5 is made within that period, until the
Commission has determined the
application;
and
(e) the Commission must approve the application for
10 the transfer of the licence to the new owner or
occupier if all of the terms, conditions and
restrictions included in the licence have been
complied with.
(2) Clause 14(1)(d) does not apply if the new owner or occupier
15 has informed the Commission in writing that an application
will not be made under clause 14(1)(c) to transfer the
licence to him or her.
Division 3 -- Terms, conditions and restrictions
15. Inclusion of terms, conditions and restrictions in licences
20 (1) The regulations may prescribe terms, conditions and
restrictions that are to be taken to be included in --
(a) all licences;
(b) licences of a particular kind;
(c) licences relating to a particular area; or
25 (d) licences of a particular kind relating to a particular
area.
(2) The Commission may, at its discretion, include in a licence
any term, condition or restriction additional to those referred
to in subclause (1), but clause 7(2) applies to the exercise of
30 that discretion.
(3) Without limiting subclause (1) or (2), terms, conditions and
restrictions prescribed or imposed for the purposes of those
subclauses may relate to any matter provided for by the
Appendix to this Schedule.
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16. Compliance with condition when licence inoperative
A licence may require that a term, condition or restriction
included in the licence must be complied with, or must
continue to be complied with, even though the acts or series
5 of acts authorized to be done under the licence have been
completed.
17. Condition for payment of money to another licensee
(1) This clause applies if --
(a) the grant of a licence to a person; or
10 (b) the amendment of a licence held by a person,
will, in the opinion of the Commission, result in the quantity
of water that any other licensee or person ("an affected
person") will be able to take being reduced to less than the
water entitlement of that person.
15 (2) Where this clause applies, the Commission may, if it
considers that equity so requires, include in the licence
referred to in paragraph (a) or (b) of subclause (1) a
condition that the person referred to in that paragraph ("the
benefiting licensee") pay an amount of money, or
20 periodical amounts of money, to an affected person for or
towards --
(a) direct pecuniary loss; or
(b) loss of profits,
or both (if any), suffered by that person as a result of the
25 reduction.
(3) A condition may be in terms that an amount is to be --
(a) as agreed between an affected person and the
benefiting licensee; or
(b) failing agreement within a specified period, as
30 determined --
(i) by the Commission; or
(ii) by arbitration under the Commercial
Arbitration Act 1985.
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(4) In this clause --
"water entitlement" means the quantity of water that a
person is entitled to take under this Act or under a
licence.
5 18. Commission may direct compliance with licence
condition
(1) If a licensee fails to comply with any term, condition or
restriction included in a licence, the Commission may direct
the licensee to comply with that term, condition or
10 restriction.
(2) A direction under subclause (1) must --
(a) be given by notice in writing served on the licensee;
and
(b) specify the time within which the direction is to be
15 complied with.
(3) If a licensee to whom a direction has been given does not
comply with the direction within the specified time, or any
additional time allowed by the Commission --
(a) the licensee commits an offence and is liable to a
20 fine of $2 500 and a daily penalty of $250; and
(b) the Commission may --
(i) do all or part of whatever the direction
requires to be done; and
(ii) recover the costs and expenses incurred by
25 it as a debt due by the licensee.
Division 4 -- Notation on licence of interest of third party
19. When clause 20 applies
Clause 20 applies where --
(a) the Commission is satisfied that --
30 (i) a licensee is obliged by an agreement with
any person ("the third party") in relation
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to the whole or a part of the water taken
under the licence; and
(ii) it is appropriate for the Commission to
recognize that obligation;
5 and
(b) the licence has been endorsed by the Commission
with a notation showing that the licence is subject to
clause 20.
20. Restrictions on dealing with licence
10 If this clause applies the following things cannot be done
without the consent in writing of the third party --
(a) an application which, if granted, will affect matters
to which the agreement relates cannot be made
under --
15 (i) clause 23 to amend the licence; or
(ii) clause 32 for approval of the transfer of the
licence;
and
(b) the licence cannot be surrendered under clause 27.
20 21. Further provisions as to notation
A notation referred to in clause 19(b) --
(a) must identify the agreement and the third party
concerned; and
(b) does not give the agreement to which it relates any
25 force it would not otherwise have had.
Division 5 -- Renewal of licences
22. Renewal of licences
(1) An application for the renewal of a licence that is in force
for a fixed period --
30 (a) must be made in the form specified for the purpose
by the Commission; and
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(b) must be accompanied by the prescribed fee.
(2) On an application for renewal of a licence, the licence is to
be renewed unless --
(a) the renewal would be inconsistent with --
5 (i) a relevant local by-law; or
(ii) a plan approved under Part III Division 3D
Subdivision 2;
(b) the Commission is of the opinion that, if the
application for renewal was an application for the
10 grant of a licence, it would exercise its discretion
under clause 7(2) to refuse to grant the licence;
(c) it is a term of the licence that it is not renewable;
(d) a term, condition or restriction included in the
licence has not been complied with; or
15 (e) in the opinion of the Commission there are
sufficient grounds for the exercise of the power to
cancel the licence under clause 25.
(3) Clause 6(2), (3) and (4) apply where the Commission
proposes --
20 (a) to refuse an application for renewal of a licence; or
(b) to renew a licence subject to the inclusion of a term,
restriction or condition that it considers is
inconsistent with the terms of the application for
renewal,
25 in the same way as they apply to an application for a
licence.
(4) Clauses 8 and 10(2) apply to an application for renewal in
the same way as they apply to an application for a licence.
(5) A licence which would otherwise expire after application
30 has been made for its renewal but before the Commission
has made a decision as to that renewal remains in force until
that decision is made.
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Division 6 -- Amendment, suspension, cancellation and
surrender of licences
23. Application by licensee for amendment of licence
(1) A licensee may apply to the Commission at any time for
5 amendment of the licence.
(2) Clauses 4, 6, 7, 10 and 12 and Division 3 apply, with all
necessary modifications, to an application under
subclause (1) as if it were an application for the grant of a
licence.
10 (3) Despite subclause (2), a fee may be prescribed for an
application under subclause (1) that is different from that
prescribed for the purposes of clause 4(1)(d).
24. Commission may amend licence
(1) The Commission may, subject to this clause and clause 26,
15 by notice in writing given to the licensee --
(a) vary the duration of a licence;
(b) vary, add to or remove any term, condition or
restriction included in the licence; or
(c) include any new term, condition or restriction in the
20 licence.
(2) The Commission may only exercise a power described in
subclause (1) in relation to a licence if --
(a) the licensee consents to the Commission doing so;
(b) in the opinion of the Commission, the exercise of
25 the power is necessary or desirable --
(i) due to the detrimental effect of actions
authorized by the licence on another person;
(ii) to protect the water resource to which the
licence relates from unacceptable damage;
30 or
(iii) to protect the associated environment from
unacceptable damage;
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(c) in the opinion of the Commission, the exercise of
the power is necessary to prevent serious damage to
life or property;
(d) in the opinion of the Commission, the licensee has
5 consistently not taken the quantity of water that the
licensee is entitled to take under the licence;
(e) in the opinion of the Commission, the exercise of
the power is necessary or desirable --
(i) in the public interest;
10 (ii) because the water resource to which the
licence relates is insufficient to meet
demand or expected demand; or
(iii) otherwise to more effectively regulate the
use of that water resource;
15 (f) there has been an alteration to --
(i) a plan approved under Part III Division 3D
Subdivision 2; or
(ii) relevant local by-laws,
and the exercise of the power is necessary, in the
20 opinion of the Commission, to prevent the licence
from being seriously inconsistent with the plan or
the by-laws;
(g) the licensee is convicted of an offence against this
Act;
25 (h) in the opinion of the Commission, the exercise of
the power is necessary to comply with another
written law of the State or a law of the
Commonwealth;
(i) the licensee has applied under clause 32 for
30 approval of the transfer of the licence or a water
entitlement under the licence, and the exercise of
the power is necessary or desirable to give effect to
the transfer; or
(j) the licence confers authority for the Commission to
35 do so.
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25. Commission may suspend or cancel licence
(1) The Commission may, subject to this clause and clause 26,
by notice in writing given to the licensee --
(a) suspend a licence --
5 (i) for a fixed period specified in the notice; or
(ii) until such time as the licensee is notified by
the Commission that the suspension no
longer applies;
or
10 (b) cancel a licence.
(2) The Commission may only exercise a power described in
subclause (1) in relation to a licence if --
(a) in the opinion of the Commission, the exercise of
the power is necessary or desirable --
15 (i) due to the detrimental effect of actions
authorized by the licence on another person;
(ii) to protect the water resource to which the
licence relates from unacceptable damage;
or
20 (iii) to protect the associated environment from
unacceptable damage;
(b) there has been an alteration to --
(i) a plan approved under Part III Division 3D
Subdivision 2; or
25 (ii) relevant local by-laws,
and, in the opinion of the Commission, the licence
cannot be amended under clause 24 to make it
consistent with the plan or the by-laws;
(c) the licensee --
30 (i) is convicted of an offence against this Act;
or
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(ii) has contravened or failed to comply with
any term, condition or restriction included
in the licence;
(d) in the opinion of the Commission, the exercise of
5 the power is necessary to comply with another
written law of the State or a law of the
Commonwealth;
(e) in the opinion of the Commission, the exercise of
the power is necessary or desirable in the public
10 interest;
(f) the licence confers authority for the Commission to
do so; or
(g) prescribed circumstances apply.
(3) The suspension or cancellation of a licence has effect to
15 suspend or cancel the rights and privileges conferred by the
licence but does not affect the duties imposed by the licence.
26. Licensee's rights before licence amended, suspended or
cancelled
(1) Except as provided by subclauses (2) and (3), this clause
20 applies where the Commission proposes to exercise a power
conferred by clause 24 or 25.
(2) This clause does not apply to the proposed exercise of a
power conferred by clause 24 or 25 --
(a) if the Commission is of the opinion that the exercise
25 of the power is necessary to prevent loss of life or
property or serious injury to persons or property; or
(b) if the power is to be exercised in circumstances
prescribed by the regulations.
(3) This clause does not apply to the proposed exercise of a
30 power conferred by --
(a) clause 24 in the circumstances mentioned in
subclause (2)(a) of that clause; or
(b) clause 25 in the circumstances mentioned in
subclause (2)(c)(i) of that clause.
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(4) Where this clause applies, the Commission is to notify the
licensee --
(a) of its proposal; and
(b) that the applicant has a right to be heard by, or to
5 make written submissions to, the Commission
before the Commission makes a decision to exercise
the power.
(5) Written submissions may be made by the licensee, as
mentioned in subclause (4)(b), within such period after the
10 applicant is given notice under that subclause as is specified
in the notice.
(6) The Commission is to have regard to any submissions made
by the licensee under subclause (5) before it makes its final
decision.
15 27. Surrender of licences
A licence may be surrendered at any time to the
Commission if the licensee has complied with any terms,
conditions or restrictions included in the licence relating to
its surrender.
20 Division 7 -- Transfers of licences and water entitlements
28. Definition
In this Division --
"water entitlement", in relation to a licence, means the
quantity of water that the licensee is entitled to take
25 under the licence, and includes part of a water
entitlement.
29. Transfers of licences and entitlements
(1) Subject to this Division, the holder of a licence may --
(a) transfer the licence to another person; or
30 (b) transfer the licensee's water entitlement under the
licence to a person who holds, or is eligible in terms
of clause 3 to hold, a licence of the same kind.
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(2) Subclause (1) does not apply to a licence of a particular kind
to the extent that a relevant local by-law prohibits the
transfer of licences, or water entitlements under licences, of
that kind.
5 (3) A transfer of a water entitlement under a licence between
licensees may be made by the Commission amending the
transferring and receiving licences.
30. Transfer may be absolute or for a period
(1) A transfer of a licence or a water entitlement may be
10 absolute or for a limited period.
(2) A licence that has been transferred for a limited period
reverts automatically to the transferor when the period
expires.
(3) A water entitlement that has been transferred for a limited
15 period reverts automatically to the transferor's licence when
the period expires.
31. Approval of Commission required
(1) A transfer of a licence or a water entitlement cannot be
made without the approval of the Commission.
20 (2) The Commission must refuse to approve the transfer of a
licence to a person who is not eligible under clause 3 to hold
the licence.
(3) If the Commission would approve the transfer of a licence to
a person but for the fact that the person is not a person who
25 is eligible in terms of clause 3 to hold the licence, the
Commission may undertake to approve the transfer of the
licence to the person if the person becomes eligible to hold
the licence within the period of time specified in the
undertaking.
30 (4) Subject to subclause (2), the grant, or undertaking to grant,
approval to the transfer of a licence or water entitlement or
the refusal to do so is at the discretion of the Commission.
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(5) In exercising that discretion the Commission is to have
regard to all matters that it considers relevant, including
those set out in clause 7(2).
(6) Without limiting subclause (4), the Commission may refuse
5 to approve the transfer of a water licence or a water
entitlement, or to undertake to approve any such transfer, to
a person who has committed an offence against this Act.
32. Application for Commission's approval
(1) An application for approval of the transfer of a licence or a
10 water entitlement --
(a) must be made in the form specified for the purpose
by the Commission;
(b) must include information that is stated in the form
to be required; and
15 (c) must be accompanied by the prescribed fee.
(2) An applicant must provide the Commission with any further
information that the Commission may require.
33. Commission may direct that assessment be made
Before determining an application made under clause 32 the
20 Commission may direct that an assessment of the effect of
granting the application be made, at the expense of the
applicant, by an expert appointed or approved by the
Commission.
34. Consent of persons having a security interest
25 Where a person is noted on the register referred to in
section 26GZI as having a security interest (as defined in
Part III Division 3E) in a licence, the Commission must not
approve the transfer of the licence or the water entitlement
under the licence without the written consent of that person.
30 35. Requirement for notice of application in certain cases
(1) This clause applies to applications under clause 32 of a kind
prescribed by local by-laws for the purposes of this clause.
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(2) Notice of the application must be given by the Commission
to any person required by local by-laws to be notified.
(3) A person to whom notice has been given may, in accordance
with the regulations, make submissions in writing to the
5 Commission in relation to the grant or refusal of the
application.
(4) The Commission must give the applicant a copy of any
submissions made and allow the applicant an opportunity to
respond in writing to the submissions.
10 (5) The response referred to in subclause (4) must be made
within the number of days prescribed by the regulations
after the relevant material is given to the applicant.
(6) The Commission may allow a person, who, in submissions
made, requested an appearance before the Commission, a
15 reasonable opportunity to appear personally or by
representative before and make submissions to --
(a) the Commission; or
(b) a water resources management committee
established for the area under Part III Division 3C.
20 (7) If a person so appears, the Commission must also allow the
applicant a reasonable opportunity, on request, to appear
personally or by representative in order to respond to any
relevant matter.
(8) The Commission must give to each person who made
25 submissions notice of --
(a) its decision on the application; and
(b) the date of the decision.
(9) A notice under subclause (8) must be given not later than
7 days after the date of the decision.
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36. Endorsement and record of dealings
The Commission must --
(a) endorse on a licence the name and address of the
person to whom the licence has been transferred;
5 and
(b) in the case of the transfer of the water entitlement
under a licence, endorse on both licences affected
such particulars as it thinks fit relating to the
transfer.
10 Division 8 -- Transfer of licences and water entitlements to
the Commission
37. Definition
In this Division --
"water entitlement", in relation to a licence, means the
15 quantity of water that the licensee is entitled to take
under the licence, and includes part of a water
entitlement.
38. Authority of Commission to receive transfers
(1) This clause applies in relation to a licence if --
20 (a) the regulations authorize the Commission to enter
into an agreement under this clause in relation to
licences of the class to which the licence belongs;
(b) the Commission considers that the water entitlement
under the licence is not being used in whole or in
25 part;
(c) the purpose for which water taken under the licence
is being used is no longer a purpose for which a
licence would be granted by the Commission; or
(d) the Commission considers that it would be in the
30 public interest for it to enter into an agreement
under this clause in relation to the licence.
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(2) Where this clause applies in relation to a licence, the
Commission may enter into and give effect to an agreement
with the licensee under which --
(a) the licensee is to transfer --
5 (i) the licence; or
(ii) a water entitlement,
to the Commission; and
(b) the Commission is to pay an agreed amount to the
licensee as consideration for the transfer.
10 (3) An agreement under subclause (2) may also contain
provisions incidental and supplementary to the matters
mentioned in that subclause.
(4) A transfer of a licence or a water entitlement under this
clause may be absolute or for a limited period.
15 (5) A licence that has been transferred under this clause for a
limited period reverts automatically to the transferor when
the period expires.
(6) A water entitlement that has been transferred under this
clause for a limited period reverts automatically to the
20 transferor's licence when the period expires.
(7) Where a person is noted on the register referred to in
section 26GZI as having a security interest (as defined in
Part III Division 3E) in a licence, the Commission must not
enter into an agreement under subclause (2) in respect of the
25 licence without the written consent of that person.
Division 9 -- Compensation
39. Compensation
(1) If a person suffers damage, including loss of profit --
(a) due to the exercise of a power under
30 clause 24(2)(e)(i) in relation to a licence held by
the person;
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(b) due to the exercise of a power under clause 25(2)(e)
in relation to a licence held by the person; or
(c) in circumstances prescribed by a local by-law,
the Commission is, in accordance with this clause, to
5 compensate that person for the damage if the person
requests compensation.
(2) Damage may be compensated for only if --
(a) it is due to the loss of a use which was reasonable,
authorized by the relevant licence and consistent
10 with the objects of this Act; and
(b) the person requesting compensation is not
responsible for the damage and has attempted to
offset or mitigate the damage as far as is
practicable.
15 (3) Local by-laws may prescribe --
(a) the time within which compensation may be
claimed and the procedures for making claims;
(b) the types of damage for which compensation is to
be made; and
20 (c) how compensation is to be assessed.
(4) A dispute about the amount of compensation is to be
determined by arbitration under the provisions of the
Commercial Arbitration Act 1985, unless the parties agree
on some other method of determination.
25 (5) Compensation under this clause, and any costs incurred by
the Commission under subclause (4), are to be charged to
the Consolidated Fund, which this section appropriates to
the necessary extent.
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Part 5 Amendments relating to licensing
s. 51
Division 10 -- Issue of licences and transfer of licences and
water entitlements by the Commission for a premium
40. Authority of Commission to issue licences at a premium
(1) This clause applies in relation to the grant of a licence if --
5 (a) the regulations authorize the Commission to enter
into an agreement under this clause in relation to the
grant of licences of the class to which the licence
belongs; or
(b) the Commission has established the facilities by the
10 use of which water may be taken under the licence.
(2) Where this clause applies in relation to the grant of a
licence, the Commission may enter into and give effect to an
agreement with a person under which --
(a) the Commission is to grant a licence to the person;
15 and
(b) the person is to pay an agreed amount to the
Commission as a premium for the grant of the
licence.
(3) An agreement under subclause (2) may also contain
20 provisions incidental and supplementary to the matters
mentioned in that subclause.
41. Authority of Commission to transfer licences etc. for a
premium
(1) This clause applies in relation to a licence or a water
25 entitlement if --
(a) the regulations authorize the Commission to enter
into an agreement under this clause in relation to
licences or water entitlements of the class to which
the licence belongs; or
30 (b) the licence or water entitlement has been transferred
to the Commission by an agreement made under
clause 38.
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(2) Where this clause applies in relation to a licence or a water
entitlement, the Commission may enter into and give effect
to an agreement with a person who is eligible to hold a
licence under which --
5 (a) the Commission is to transfer --
(i) the licence; or
(ii) the water entitlement,
to the person; and
(b) the person is to pay an agreed amount to the
10 Commission as consideration for the transfer.
(3) The amount to be paid as consideration may be established
by public auction or tender or by private treaty.
(4) An agreement under subclause (2) may also contain
provisions incidental and supplementary to the matters
15 mentioned in that subclause.
(5) A transfer of a licence or a water entitlement under this
clause may be absolute or for a limited period.
(6) A licence or a water entitlement that has been transferred
under this clause for a limited period reverts automatically
20 to the Commission when the period expires.
Division 11 -- Miscellaneous
42. Notification to be given to Registrars
(1) If --
(a) a licence under section 5C is --
25 (i) granted;
(ii) renewed under clause 22;
(iii) amended under clause 24;
(iv) suspended or cancelled under clause 25;
(v) surrendered under clause 27; or
30 (vi) transferred under clause 29;
or
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(b) a security interest (as defined in Part III
Division 3E) in a licence --
(i) is noted on the register referred to in
section 26GZI; or
5 (ii) the notation referring to such a security
interest is removed from the register or any
details of the notation in the register are
varied, under section 26GZQ,
the Commission is to give notice of the event to the
10 Registrar in the form approved by the Registrar.
(2) The Registrar is to record the notification, or remove a
record relating to the notification, as is appropriate, in the
relevant documents relating to the land in the appropriate
manner.
15 (3) In this clause --
"Registrar" means the Registrar of Titles under the
Transfer of Land Act 1893 or the Registrar of Deeds
and Transfers under the Registration of Deeds
Act 1856, as the case requires.
20 43. Licensee to maintain facilities
A licensee must maintain works, facilities and equipment to
which the licence refers in good order and condition.
Penalty: $2 000.
44. Licensee to notify change of circumstances
25 A licensee must without delay inform the Commission in
writing of any material change to the facts or circumstances
stated by the licensee in an application for the grant or
renewal of the licence.
Penalty: $2 000.
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Amendments relating to licensing Part 5
s. 51
45. Duplicate licences
If the Commission is satisfied that a licence has been lost or
destroyed the Commission may issue a duplicate licence on
payment of the prescribed fee.
5 46. Meters
(1) The Commission may --
(a) cause a meter or meters to be placed or otherwise
installed; or
(b) require a licensee to provide and place or otherwise
10 install a meter or meters,
on any well or other facility that is the subject of a licence
for taking water.
(2) A licensee who is required to provide a meter under
subclause (1) must --
15 (a) maintain the meter in good condition; and
(b) use every reasonable endeavour to ensure that the
meter is operating accurately.
Penalty: $2 000.
(3) The Commission may at any time --
20 (a) cause a meter placed or installed by a licensee under
subclause (1) to be tested; or
(b) require the testing of such a meter by a person
approved by the Commission.
(4) The regulations may prescribe fees --
25 (a) for the cost and installation of a meter by the
Commission;
(b) for the maintenance, testing and replacement of a
meter provided by the Commission; or
(c) for the reading of a meter,
30 and may combine a fee authorized under this subclause with
the fee under clause 4(1)(d).
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(5) In this clause --
"meter" means any device for measuring or estimating the
volume or flow of water that is approved, or is of a
description that is approved, by the Commission by
5 order published in the Gazette.
47. Meter reading to be presumed correct
The quantity of water shown by a meter placed or installed
under clause 46 as having passed through the meter is to be
presumed, in the absence of evidence to the contrary, to be
10 the amount of water that has actually been taken by the
licensee.
Appendix to Schedule 1
Matters to which licence terms, conditions or
restrictions may relate
15 [cls. 7(5) and 15(3) of Sch. 1]
1. The taking, use or disposal of water, including --
(a) arrangements for water, whether from one source or
different sources, to be shared by a licensee with, or
supplied by a licensee to, other persons; and
20 (b) requirements to be met in relation to the taking, use or
disposal of water by a licensee who is the holder of an
operating licence under the Water Services Coordination
Act 1995.
2. The use, management, protection and enhancement of --
25 (a) any water resource and its ecosystem; or
(b) the environment in which the water resource is situated.
3. The amendment, renewal or surrender of a licence.
4. The transfer of a licence or water entitlement (as defined in
Division 7) by the licensee to another person, including a
30 prohibition or restriction on any such transfer of a licence or
water entitlement.
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5. The transfer of a licence or water entitlement (as defined in
Division 7) that relates to any place so that it relates to another
place of the same kind, including a prohibition or restriction on
any such transfer of a licence or water entitlement.
5 6. The construction, alteration, maintenance or operation of works,
structures and equipment including the qualifications of persons
who are responsible for any of those things.
7. The removal of works, structures and equipment, the making
good of land or premises, or the condition in which works,
10 structures, equipment, land or premises are to be left.
8. The monitoring of --
(a) any water resource and its ecosystem; or
(b) the environment in which the water resource is situated.
9. The provision of information to the Commission including
15 information by way of periodical returns at specified times.
".
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Rights in Water and Irrigation Amendment Bill 1999
Part 6 Amendments relating to dams and drainage
s. 52
Part 6 -- Amendments relating to dams and drainage
52. Section 17 amended
(1) Section 17(1) and (3) are amended by deleting "or under this or"
and inserting instead --
5 " a permit or by ".
(2) After section 17(3) the following subsection is inserted --
"
(3a) Without limiting subsection (1) or (3) --
(a) the construction or alteration of a dam is to be
10 taken to be prohibited by that subsection; and
(b) the reference in that subsection to a permit is a
reference to the grant of a permit by the
Commission under regulations referred to in
section 17B.
15 ".
(3) After section 17(4) the following subsections are inserted --
"
(4a) Despite subsections (1) and (3), this section does not
apply to the construction or alteration of a dam in an
20 area, or of a size or type, excluded from the operation
of this section by local by-laws if the dam is
constructed or altered in accordance with such by-laws.
(4b) Despite section 19, this section applies to a watercourse
to which Division 2 applies that is --
25 (a) prescribed for the purposes of this section by
local by-laws; or
(b) situated within an area that is so prescribed.
".
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Amendments relating to dams and drainage Part 6
s. 53
(4) After section 17(7) the following subsection is inserted --
"
(8) In this section and in section 17A --
"dam" includes any artificial barrier or levee, whether
5 temporary or permanent, which does or could
impound, divert or control water, silt, debris or
liquid borne materials, together with its
appurtenant works.
".
10 53. Sections 17A and 17B inserted
After section 17 the following sections are inserted --
"
17A. Saving for existing dams
(1) Nothing in section 17 is to be taken to require a permit
15 as mentioned in subsection (3a)(b) of that section for
the construction or alteration of a dam if that
construction or alteration was commenced before the
coming into operation of section 52 of the Rights in
Water and Irrigation Amendment Act 1999 ("the
20 commencement day").
(2) Subsection (1) does not affect --
(a) the application of section 17 to the alteration,
after the commencement day, of a dam the
construction of which is exempted from that
25 section by subsection (1); or
(b) any breach of that section that occurred before
that day.
17B. Regulations as to permits for section 17
The regulations may make provision for the permits
30 that are required under section 17(1) and (3), including
provision for the matters set out in section 27B.
".
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Part 6 Amendments relating to dams and drainage
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54. Sections 26O and 26P inserted
After section 26N, as inserted by section 45, the following
sections are inserted --
"
5 26O. Local by-laws for control of drainage
(1) Local by-laws may be made to provide for the
regulation and control of drainage and dewatering so
far as they affect or are likely to affect the use or
management of water resources under this Act.
10 (2) By-laws referred to in subsection (1) may --
(a) prohibit the construction, use, alteration or
removal of drainage and dewatering works
except under and in accordance with a licence;
and
15 (b) impose penalties --
(i) not exceeding $5 000 and a daily
penalty of $500 for a breach of any such
prohibition; and
(ii) not exceeding $2 000 and a daily
20 penalty of $200 for any other breach of
by-laws made under this section.
(3) In this section --
"dewatering" means removing underground water to
facilitate construction or other activity.
25 26P. Local by-laws relating to flood protection works
Local by-laws may be made --
(a) providing for the regulation and control of
flood protection levees so far as they obstruct
or interfere with the flow of a watercourse,
30 including the flow of its flood waters;
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(b) imposing penalties --
(i) not exceeding $5 000 and a daily
penalty of $500 for a breach of any
prohibition on the construction,
5 alteration, use or removal of a flood
protection levee; and
(ii) not exceeding $2 000 and a daily
penalty of $200 for any other breach of
by-laws made under this section;
10 and
(c) conferring on the Commission powers --
(i) to direct that works that contravene the
by-laws be removed at the expense of
the owner or occupier of the land on
15 which the works are situate; and
(ii) if a direction is not complied with to --
(I) effect the removal; and
(II) recover the cost of doing so
from that owner or occupier,
20 and making provision incidental and
supplementary to those powers.
".
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Rights in Water and Irrigation Amendment Bill 1999
Part 7 Amendments relating to penalties and appeals
s. 55
Part 7 -- Amendments relating to penalties
and appeals
55. Section 14 repealed
Section 14 is repealed.
5 56. Section 22 amended
Section 22(4) is amended by deleting the passage from "$500;
and" to the end of the subsection and inserting instead --
" $4 000 and a daily penalty of $400. ".
57. Section 23 repealed
10 Section 23 is repealed.
58. Section 26A amended
Section 26A(2) is amended by deleting the passage from
"$2 000 and," to the end of the subsection and inserting
instead --
15 " $10 000 and a daily penalty of $1 000. ".
59. Section 26B amended
Section 26B(6) is amended by deleting the passage from
"$2 000 and," to the end of the subsection and inserting
instead --
20 " $10 000 and a daily penalty of $1 000. ".
60. Section 26D amended
Section 26D(4) and (5) are repealed.
61. Section 26E amended
Section 26E(1) is amended, in the penalty provision at the foot
25 of the subsection, by deleting "$500" and inserting instead --
" $1 000 ".
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Amendments relating to penalties and appeals Part 7
s. 62
62. Section 26F amended
Section 26F(2) is amended by deleting "$2 000 and a further
penalty of $200 for each day during which the offence continues
after conviction" and inserting instead --
5 " $10 000 and a daily penalty of $1 000 ".
63. Section 26G amended
Section 26G(3) is amended by deleting the penalty provision at
the foot of the subsection and inserting the following provision
instead --
10 " Penalty: $5 000 and a daily penalty of $500. ".
64. Division 3B inserted in Part III
After Part III Division 3A, as inserted by section 40, the
following Division is inserted --
"
15 Division 3B -- Appeals
26GG. Appeals relating to licences to take water
(1) A person referred to in subsection (2) may appeal to
the Minister if the person is aggrieved by a decision of
the Commission under Schedule 1 --
20 (a) to refuse an application for the grant or renewal
of a licence under section 5C ("a licence");
(b) as to the period for which a licence is granted
or renewed;
(c) as to any term, condition or restriction included
25 in a licence;
(d) to undertake to grant a licence, including as to
any term, condition, or restriction undertaken to
be included in the licence;
(e) to amend, suspend or cancel a licence; or
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Part 7 Amendments relating to penalties and appeals
s. 64
(f) to refuse to approve the transfer of a licence or
of a water entitlement under a licence.
(2) A person may appeal under subsection (1) only if the
person is an applicant for the licence, the licensee or, if
5 the appeal is made under subsection (1)(f), a person to
whom the licence or water entitlement would be
transferred.
26GH. Appeals relating to directions as to the taking of
water
10 A person given a direction, or variation of a direction,
under section 22, 26G or 26GC may appeal to the
Minister if the person is aggrieved by the direction or
variation.
26GI. Appeals relating to licences under Division 3
15 An applicant for a licence under section 26D may
appeal to the Minister if the person is aggrieved by a
decision of the Commission --
(a) to refuse a licence under section 26D(2)(c);
(b) as to any term, limitation or condition included
20 in a licence under that section; or
(c) to require alterations to be made as mentioned
in section 26D(2)(b).
26GJ. Schedule 2 applies to appeals
An appeal under this Division is to be brought, dealt
25 with and determined in accordance with the provisions
of Schedule 2.
".
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Amendments relating to penalties and appeals Part 7
s. 65
65. Section 27 amended
Section 27 is amended as follows:
(a) after paragraph (ga) by inserting --
" and ";
5 (b) by deleting paragraph (h) and "and" after it.
66. Section 70 amended
Section 70 is amended by deleting "$1 000" and inserting
instead --
" $5 000 ".
10 67. Section 71 amended
Section 71 is amended by deleting "$2 000" and inserting
instead --
" $10 000 ".
68. Section 72 amended
15 Section 72 is amended by deleting "$2 000" and inserting
instead --
" $10 000 ".
69. Schedule 2 added
After Schedule 1, added by section 51, the following Schedule
20 is added --
"
Schedule 2 -- Appeal provisions
[s. 26GJ]
1. Definition
25 In this Schedule --
"appeal" means an appeal under Part III Division 3B;
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s. 69
"decision" means a decision, direction or variation of a
direction against which an appeal may be brought
under that Division.
2. Bringing an appeal
5 (1) A person who is entitled to bring an appeal against a
decision may do so by lodging a written notice of appeal
with the Minister within 30 days of being given notice of the
decision.
(2) The Minister may accept a notice of appeal after the expiry
10 of the period of 30 days referred to in subclause (1) if the
Minister considers it would be equitable to do so.
(3) An agent may bring an appeal on behalf of a person entitled
to bring the appeal, but the agent must, if required by the
Minister, satisfy the Minister of the agent's authority.
15 3. Notice of appeal
A notice of appeal must --
(a) state the name and address of the appellant;
(b) set out or otherwise identify sufficiently the
decision appealed against;
20 (c) set out the grounds of the appeal and state briefly
the facts on which the appellant relies; and
(d) indicate whether the appellant wishes the Minister
to exercise the power conferred on the Minister by
clause 4.
25 4. Decision may be suspended
The Minister may suspend the operation of the decision
appealed against during the period when the appeal is
pending, but otherwise the bringing of an appeal does not
affect the decision during that period.
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Amendments relating to penalties and appeals Part 7
s. 69
5. Action that Minister may take
(1) If the appellant so requests, on receiving a notice of appeal
the Minister is to cause an inquiry to be conducted
concerning the matters raised in the appeal by 3 or more
5 persons appointed in writing for the purpose by the Minister
including --
(a) a nominee of the appellant approved by the
Minister; and
(b) a nominee of the Commission approved by the
10 Minister.
(2) The Minister may, before taking action under subclause (1),
appoint a person to assist the appellant and the Commission
to resolve the issues on which the appeal is brought with a
view to the appeal being withdrawn in whole or in part.
15 (3) The Minister may --
(a) direct that any person who is appointed under this
clause is to be paid remuneration or allowances, or
both; and
(b) determine the amount of any such payments on the
20 recommendation of the Minister for Public Sector
Management.
6. Conduct of inquiry
(1) The following persons are to be given a reasonable
opportunity of making oral and written submissions to the
25 persons conducting the inquiry --
(a) the appellant;
(b) the Commission; and
(c) where there is a water resources management
committee under Part III Division 3C for the
30 locality to which the subject-matter of the appeal
relates, that committee or, in the case of oral
submissions, a representative of that committee
nominated by it for the purposes of this clause.
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(2) An inquiry is to be conducted according to equity and the
substantial merits of the case without regard to legal
technicalities.
(3) The persons conducting an inquiry are not bound by any
5 rules of evidence and, subject to subclause (2), may conduct
the inquiry and obtain information in any manner they
consider appropriate.
(4) On completing the inquiry, the persons conducting it are to
report to the Minister giving their findings and
10 recommendations in respect of the appeal.
7. Appellant to be given copy of report
The person who conducted the inquiry are to give the
appellant --
(a) a copy of the report referred to in clause 6(4); or
15 (b) if they consider that the report contains confidential
information, an edited copy from which that
information has been deleted.
8. Stating a case to District Court
(1) If the persons conducting an inquiry consider it desirable to
20 do so, they may --
(a) of their own initiative; or
(b) on the application of the appellant or the
Commission,
refer a question of law arising in the inquiry for
25 determination by the District Court.
(2) Where a question of law has been referred to the District
Court, the conduct of the inquiry is not to be concluded until
the determination of the District Court has been made and
taken into account.
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Amendments relating to penalties and appeals Part 7
s. 69
9. Decision of Minister on the appeal
(1) On receipt of the report under clause 6(4), the Minister is to
consider, and make a decision on, the appeal and may --
(a) allow the appeal wholly or in part;
5 (b) dismiss the appeal; or
(c) refer the appeal back to the persons conducting the
inquiry with a request for consideration or further
consideration of some fact or issue.
(2) In deciding an appeal, the Minister is to have regard to, but
10 is not bound by, the findings and recommendations of the
inquiry.
(3) If the Minister allows an appeal the Minister may give to the
Commission directions in respect of the matter that are
consistent with this Act.
15 (4) The decision of the Minister on an appeal is final and the
Commission is to give effect to the decision and any
directions given to it under subclause (3).
".
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Part 8 Transitional provisions
s. 70
Part 8 -- Transitional provisions
70. Definitions
In this Part, unless the contrary intention appears --
"principal Act" means the Rights in Water and Irrigation
5 Act 1914.
71. Interpretation Act 1984 not affected
The provisions of this Part do not affect the application of the
Interpretation Act 1984, so far as it is consistent with those
provisions, to the amendments made by this Act.
10 72. Appeals in progress
If --
(a) before --
(i) the commencement of section 55 of this Act
notice has been given to the Minister under
15 section 14(1) of the principal Act;
(ii) the commencement of section 57 of this Act
notice has been given to the Minister under
section 23(1) of the principal Act; or
(iii) the commencement of section 60 of this Act
20 notice has been given to the Minister under
section 26D(4) of the principal Act;
but
(b) the steps and procedures under section 14(2), 23(2) or
26D(5) of the principal Act, as the case may be, have
25 not been completed,
the notice does not lapse on that commencement but the
relevant repealed provision mentioned in paragraph (b)
continues to have effect in respect of the notice as if the repeal
had not occurred.
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Transitional provisions Part 8
s. 73
73. Applications made for licences to take water
(1) This clause applies to an application for --
(a) a special licence under section 12 of the principal Act
that was made before the commencement of section 25
5 of this Act; and
(b) a licence under section 13 of the principal Act that was
made before the commencement of section 26 of this
Act,
but that was not before the relevant commencement finally
10 disposed of by the grant or refusal of a licence or withdrawn.
(2) An application to which this clause applies is to continue to be
governed by the principal Act, including section 14, as if this
Act had not been enacted.
(3) However, if a licence is granted on the application --
15 (a) it is to be treated after the grant as if it were a licence
under section 5C of the principal Act; and
(b) after the grant, the provisions of the principal Act apply
to it in the same way as they apply to a licence under
section 5C granted under the principal Act as amended
20 by this Act.
74. Applications made for licences in respect of wells
(1) This clause applies to an application for a licence under
section 26D of the principal Act that --
(a) was made before the commencement of section 37 of
25 this Act; but
(b) was not before that commencement finally disposed of
by the grant or refusal of a licence or withdrawn.
(2) An application to which this clause applies is to continue to be
governed by the principal Act, including section 26D(4) and (5),
30 as if this Act had not been enacted.
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Part 8 Transitional provisions
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(3) However, if a licence is granted on the application --
(a) it is to be treated after the grant as if it were --
(i) so far as it relates to the taking of water, a licence
under section 5C of the principal Act authorizing
5 that taking; and
(ii) so far as it relates to the carrying out of work, a
licence under section 26D of the principal Act
authorizing the carrying out of that work;
(b) those licences may be combined in a single instrument;
10 and
(c) after the grant, the provisions of the principal Act apply
to the licences in the same way as they apply to a licence
under section 5C or 26D, as the case may be, granted
under the principal Act as amended by this Act.
15 75. Licences under section 12 or 13
(1) This section applies to a licence that --
(a) immediately before the commencement of section 25 of
this Act was in force under section 12 of the principal
Act; or
20 (b) immediately before the commencement of section 26 of
this Act was in force under section 13 of the principal
Act.
(2) A licence referred to in subsection (1) --
(a) is taken on the commencement of section 25 or 26 as the
25 case may be, to be a licence under section 5C of the
principal Act; and
(b) subject to subsection (3), continues in force for the
remainder of its term.
(3) After the commencement of section 25 or 26, as the case may
30 be, the provisions of the principal Act as amended by this Act
apply to a licence referred to in subsection (1) in the same way
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Transitional provisions Part 8
s. 76
as they apply to a licence under section 5C of the principal Act
granted after that commencement.
76. Licences under section 26D
(1) This section applies to a licence that immediately before the
5 commencement of section 37 of this Act was in force under
section 26D of the principal Act.
(2) A licence referred to in subsection (1) is taken on the
commencement of section 37 --
(a) so far as it relates to the taking of water (and whether it
10 refers to taking or to drawing), to be a licence under
section 5C of the principal Act authorizing that taking;
and
(b) so far as it relates to the carrying out of work, to be a
licence under section 26D of the principal Act
15 authorizing the carrying out of that work,
and those licences are taken to be licences combined in a single
instrument as mentioned in clause 2(3) of Schedule 1 to the
principal Act.
(3) Subject to subsection (4), a licence referred to in
20 subsection (2)(a) continues in force for the remainder of its
term.
(4) After the commencement of section 37 of this Act, the
provisions of the principal Act as amended by this Act apply to
a licence referred to in subsection (2)(a) in the same way as they
25 apply to a licence under section 5C of the principal Act granted
after that commencement.
77. Civil remedy under section 5E
The right of action created by section 5E inserted in the
principal Act by section 18 of this Act does not apply to a
30 contravention of section 5C of the principal Act that occurred
before the commencement of section 18.
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Part 8 Transitional provisions
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78. Time running for purposes of section 26B(4) or (5)
If at the commencement of section 35(1) of this Act time is
running in respect of the period of 2 months mentioned in
repealed section 26B(4) or (5) of the principal Act, the time is to
5 be treated as running for the purpose of subsection (4)(c)
or (5)(c) of that section as inserted in the principal Act by
section 35(1).
79. Existing augmentations of water volumes
The application of section 26GA inserted in the principal Act by
10 section 40 of this Act extends to a situation where --
(a) at or after the commencement of section 40 the volume
of water in a watercourse or wetland is augmented by
the introduction of water by artificial means, whether
the augmentation is of the kind referred to in
15 section 9(3) of the principal Act repealed by section 22
of this Act or otherwise; and
(b) the augmentation is caused by things done before that
commencement.
80. Orders under section 26C
20 An order under section 26C of the principal Act that was in
force immediately before the commencement of section 36 of
this Act is taken on that commencement to declare that
section 5C, as well as section 26B(3) to (6), is not to apply in
relation to the non-artesian well or wells specified in the order
25 and on and after that commencement has effect accordingly.
81. Powers in relation to transitional provisions
(1) If there is no sufficient provision in this Part for any matter or
thing necessary or convenient to give effect to the transition
from the principal Act, as in force before the commencement of
30 any provision of this Act, to the principal Act as in force after
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Rights in Water and Irrigation Amendment Bill 1999
Transitional provisions Part 8
s. 81
that commencement, the Governor may make that provision by
order published in the Gazette.
(2) If in the opinion of the Minister an anomaly arises in the
carrying out of any provision of this Part the Governor may by
5 order published in the Gazette --
(a) modify that provision to remove the anomaly; and
(b) make such provision as is necessary or expedient to
carry out the intention of that provision.
(3) An order under this section in relation to an amendment made to
10 the principal Act by this Act may be made so as to have effect
from the commencement of that amendment.
(4) To the extent that a provision of any such order has effect on a
day that is earlier than the day of its publication in the Gazette,
the provision does not operate so as --
15 (a) to affect, in a manner prejudicial to any person (other
than the State), the rights of that person existing before
the day of its publication; or
(b) to impose liabilities on any person (other than the State)
in respect of anything done or omitted to be done before
20 the day of publication.
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Rights in Water and Irrigation Amendment Bill 1999
Part 9 Consequential amendments to other Acts
s. 82
Part 9 -- Consequential amendments to other Acts
82. Country Areas Water Supply Act 1947
Section 11(2)(a) of the Country Areas Water Supply Act 1947 *
is amended by deleting "Division 1" and inserting instead --
5 " Division 1B ".
[* Reprinted as at 19 March 1999.]
83. Environmental Protection Act 1986
Section 57(5)(c) of the Environmental Protection Act 1986* is
amended by deleting "Division 1" and inserting instead --
10 " Division 1B ".
[* Reprinted as at 7 March 1996.
For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 83.]
84. Metropolitan Water Supply, Sewerage, and Drainage Act 1909
15 Section 14(2)(a) of the Metropolitan Water Supply, Sewerage,
and Drainage Act 1909* is amended by deleting "Division 1"
and inserting instead --
" Division 1B ".
[* Reprinted as at 28 May 1996.
20 For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 163.]
85. Mining Act 1978
Section 162(2)(p) of the Mining Act 1978* is deleted.
[* Reprinted as at 27 February 1996.
25 For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 167.]
page 112
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