Water Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
571407
BILL LA INTRODUCTION 24/6/2014
General
Background
The Water Bill 2014 (the Bill) is intended to be the primary legislation governing the management and use of water in Victoria.
The Bill repeals the Water Act 1989 and the Water Industry Act 1994 and consequentially amends other Acts.
The Water Act 1989 and the Water Industry Act 1994 have been subject to significant incremental change in response to over two decades of water reform. As a result, these Acts are cumbersome, difficult to navigate and contain duplication and obsolete provisions. Rather than making further changes to these Acts, the Victorian Government carried out a comprehensive review of its water legislation (the Review). To guide this Review, the Minister for Water appointed an expert advisory panel with significant legal and water sector experience. The Panel was John Adams (Chair), John Wilkinson, Stuart Gemmill, Russell Cooper, Robert Sadler and Eamonn Moran PSM QC (in part).
The Panel was charged with overseeing the policy and legislative proposals reflected in the Bill, and overseeing the community consultation on the proposed changes to Victoria's water law. The Panel was supported by two technical working groups with representatives from water corporations, catchment management authorities and the Victorian Environmental Water Holder.
As part of the Review, an Exposure Draft of the Bill was released on 18December 2013 for an eight week consultation period. This allowed stakeholders and the community an opportunity to consider and provide feedback on proposed changes. During the public consultation, eight public forums and 18 targeted stakeholder forums were held across Victoria. Over700 people attended.
The Advisory Panel guided the finalisation of the Bill in response to feedback from the forums and 151 written submissions received on the Exposure Draft.
The Bill retains the best elements of the past two decades of water reform, clarifying or refining them where required, and removing or adding other elements in line with contemporary water resource management and legislative practice and stakeholder feedback. The Bill also aims to improve on the current legislative framework by reducing the administrative burden on water users, water corporations and catchment management authorities, and by implementing recent government policy.
Key reforms
The primary objective of the Review was to create a single, streamlined, modern and logical Act that is easy to understand and use and to implement current Government policies and strategies.
The Bill provides for integrated and sustainable water management and use in Victoria, based on the principles of whole of water cycle management. Specifically, the Bill enables key elements of the Victorian Government's Living Victoria policy and Melbourne's Water Future Strategy by—
· implementing a new approach to urban water cycle management planning, whereby the Minister for Water may develop a whole of water cycle management planning framework to guide the preparation of whole of water cycle management plans for defined urban areas;
· updating the objectives of water corporations to better reflect the way they carry out their business and to ensure consistency with the Living Victoria vision and objectives regarding whole of water cycle management, and making it clear that the Minister for Water can issue a statement of obligations to a water corporations about preparing whole of water cycle management plans;
· conferring clear statutory rights on a water corporations and local council to water in their stormwater infrastructure, and extending the take and use licensing regime to include water in the stormwater infrastructure of water corporations and local councils in specified areas.
The Bill also implements certain actions from the Gippsland Region and Western Region sustainable water strategies. In particular, the Bill—
· provides for the Minister to establish targeted controls on new forestry plantations to manage long-term risks to water resources in declared areas;
· provides for the licensing of aesthetic dams that are collecting or harvesting water above reasonable domestic and stock needs; and
· requiring works licences to operate new domestic and stock bores, or for existing bores upon transfer of land.
Finally, the Bill provides greater consistency with the Murray-Darling Basin Plan and the Water Act 2007 (Cth) in a way that maintains the integrity of Victoria's water entitlement regime by providing certainty to, and protection for, the interests of Victorian water users and environmental managers. Thisis achieved in part by providing for the creation of new water resource management orders, and by clarifying the definition of environmental water. Water resource management orders will consolidate in one instrument the water resource management and system operating arrangements for a particular area such as a river basin or large water supply system. The Bill replaces the concept of the "environmental water reserve" with the term "environmental water" which includes—
· held environmental water – water held by the Victorian Environmental Water Holder under an entitlement or right specifically for the environment; and
· planned environmental water – water committed to the environment under other entitlements or instruments including passing flows set aside for environmental purposes.
Other key reforms
The Bill further improves the regulatory framework under the Water Act 1989 and the Water Industry Act 1994 by—
· amending the powers of water corporations, catchment management authorities or persons authorised by the Minister to enter land to perform functions or exercise powers under the Bill, to reflect current best practice. Specifically, the Bill alters the powers of water corporations and catchment management authorities to enter land they don't manage or control to construct or install certain types of infrastructure. These changes are intended to provide greater protection for a person's property rights and privacy.
· consolidating the existing statutory liability regime in the Water Act 1989 with changes to reflect recent VCAT and Supreme Court decisions.
· establishing a new two-step process for identifying and managing long-term risks to water resources. The process encompasses assessing water resources (regional resource assessments) and determining ways to manage the risks identified (strategic reviews);
· establishing a set of core considerations that decision-makers will be required to take into account before making certain decisions, for example, deciding whether or not to issue new water entitlements;
· simplifying and regrouping the functions of water corporations and catchment management authorities based on the current water industry structure, while providing flexibility for the industry to change in future;
· setting out in primary legislation a licensing regime for activities which may have an impact of waterways and their surrounds, to ensure they are appropriately regulated; and
· creating an enhanced contemporary compliance and enforcement "toolbox" with alternatives to court action and new penalties that are more in line with the nature of the offences.
Structure
The structure of the Bill as depicted in Diagram 1 is simpler and more logical than the structure of the Water Act 1989. Provisions have also been streamlined and consolidated making it easier to locate relevant information. Table 1 below summarises the key aspects covered in each chapter of the Bill.
Diagram 1
Table 1
Chapter / Title / Summary1 / Preliminary / What the reader needs to know to understand the Bill—
• application and commencement
• purposes and objects
• key concepts in the Act—for example, core considerations and strict liability offences
2 / Resource assessment and planning / What the Minister is responsible for, and processes for:
• monitoring and reviewing water resources
• assessing and managing risks to water resources
• developing a whole of water cycle management planning framework
Chapter / Title / Summary
3 / Rights in relation to water / What are rights to water, and how the Minister may vary them, including—
• statutory rights
• water entitlements (bulk entitlements, water shares, take and use licences, water use licences and water use registrations)
• Minister's power to qualify rights and review water entitlements
4 / Taking and using water / How water entitlements are created and managed—
• issuing, amending and transferring water entitlements
• creating water resource management orders
• relevant offences
5 / Entities / How water corporations and the Victorian Environmental Water Holder are set up and governed
6 / Districts and recreational areas / How water supply, sewerage, irrigation and waterway management districts, and recreational areas, are established and altered.
7 / Functions and powers / What the functions and powers of water corporations and catchment management authorities are—
• general functions and powers, including emergency management
• specific functions and powers, including water supply, irrigation, sewerage and waterway management
Chapter / Title / Summary
8 / Regulation of infrastructure and activities / How infrastructure and activities on waterways, bores and levee maintenance on Crown land, are regulated, including—
• works and activities licences
• underground disposal
• driller's licences
• directions
9 / Finance / How the Minister, water corporations and catchment management authorities may determine and collect fees and charges, and also—
• who pays
• dispute resolution
10 / Economic regulation of water services / How the independent regulator, the Essential Services Commission, provides economic oversight of services provided by the water industry.
11 / Liabilities / What is the liability regime for injury, damage or economic loss arising out of—
• a flow of water or an interference with a flow of water;
• the taking, using or polluting of water or the construction, installation, maintenance or operation of any unauthorised infrastructure.
• compensation for damage caused by water corporations and catchment management authorities carrying out work.
Chapter / Title / Summary
12 / Provisions relating to land / How Authorities and persons authorised by the Minister enter land for—
• non-investigative purposes, including the construction and installation of infrastructure
• investigative purposes, including search and seizure powers
Provisions for granting access by landowners over land to connect to infrastructure
Schemes under community agreements
13 / Enforcement and proceedings / How the compliance and enforcement regime works, including—
• enforcement tools—remedial action notices and penalty infringement notices
• general offences, and prosecutions
14 / General / General matters—
• panels and advisory committees
• review of decisions by Victorian Civil and Administrative Tribunal
• establishing and maintaining the Victorian Water Register
15 / Saving and transitional provisions / Gives effect to Schedule 7, which contains savings and transitional provisions
16 / Repeals and amendments / Repeal of the Water Act 1989 and the Water Industry Act 1994 and consequential amendments to other Acts
Interpretation
The Bill restates with amendments the law relating to water in Victoria.
Section 16 of the Interpretation of Legislation Act 1984 provides that where an Act or a provision of an Act is repealed and re-enacted (with or without modification) then, unless the contrary intention expressly appears—
· any reference in any Act or subordinate instrument to the repealed Act or provision shall be construed as a reference to the re-enacted Act or provision; and
· insofar as any subordinate instrument made or other thing done under the repealed Act or
provision, or having effect as if so made or done, could have been made or done under the re-enacted Act or provision, it shall have effect as if made or done under the re-enacted Act or provision.
This Explanatory Memorandum at times identifies provisions of the Water Act 1989 or the Water Industry Act 1994 which are proposed to be reenacted by the Bill. This Explanatory Memorandum is not to be taken to be an exhaustive list of the provisions of the old Act re-enacted by the new Act.
CHAPTER 1—PRELIMINARY
Chapter 1 provides for the purposes, commencement, interpretation and application of the Bill. The interpretive provisions include a Dictionary located at the end of the Bill, a comprehensive list of objects, and a set of core considerations and precautionary principle that guide decision making under the Act.
PART 1.1—PURPOSES AND COMMENCEMENT
Part 1.1 outlines the purpose of the Bill and provides for its commencement.
Clause 1 sets out the purposes of the Bill, which are to restate with amendments the law relating to water in Victoria; to reform the regulatory framework for water management and use in Victoria; to improve the way in which water corporations are governed (set out in chapters 5 and 7); and to modernise the compliance and enforcement regime (set out in chapter 13).
Clause 2 provides that the Part 1.1 of the Bill will commence operation on the day after it receives Royal Assent. Subclause (2) provides that all other provisions of the Bill come into operation on a day to be proclaimed. However, if the provisions, under subclause (2), do not come into operation by 1 January 2016, under subclause (3) they will commence on that day.
A delayed commencement provision has been employed to facilitate a smooth transition from the Water Act 1989 to the new Act. It allows time to prepare the legislative instruments needed for the new Act to function effectively.
PART 1.2—INTERPRETATION
Part 1.2 provides for the objects of the Act, core considerations, the precautionary principle, and explains key provisions and terms necessary for readers to interpret the Bill.
The core considerations and the precautionary principle consolidate in one place what a decision maker must have regard to before making certain decisions. For example, deciding whether or not to issue new water entitlements. These considerations are of fundamental importance when making decisions about water. In particular, they ensure consideration of impacts on existing users and the environment. The inclusion of the precautionary principle in Part 1.2 recognises the existing role of the precautionary principle in decision making under the Water Act 1989.
Clause 3 explains the Dictionary is provided for at the end of the Bill and for the avoidance of doubt, subclause (2) clarifies that the dictionary forms part of the Bill.
Clause 4 lists the objects of the Bill
The Bill has the following objects—
· to promote the orderly, equitable and efficient use of water resources;
· to promote whole of water cycle management;
· to make sure that water resources are conserved and properly managed for present and future Victorians;