Water Legislation Amendment Bill 2023

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Passed and Assented to

Water Legislation Amendment Act 2023

Water Legislation Amendment Act 2023 No. of 2023

TABLE OF PROVISIONS Clause Page

Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021 3

3 Commencement 3 4 Definitions 3 5 Assignment of water allocation 3 6 Section 26 substituted and new section 26A inserted 4 7 Proposed section 64FE of the Water Act 1989 amended—

cessation of general place of take approval 7 8 Proposed section 64FZJ of the Water Act 1989 amended—

giving particular place of take approval 7 9 Proposed section 64FZK of the Water Act 1989 amended—

application for particular place of take approval 8 10 Proposed section 64FZL of the Water Act 1989 substituted—

period for particular place of take approval 8 11 Proposed section 64FZM of the Water Act 1989 amended—

review by VCAT 10 12 Proposed section 64FZO of the Water Act 1989 amended—

application fees 10 13 New Division 5 inserted in proposed Part 4AA of the Water Act

1989 10 14 Limited term transfers 13 15 Standing assignments 14 16 Assignment of water allocation 14 17 Further assignment of water allocation 14 18 New section 39A inserted 15 19 Repeal of Act 15

Part 3—Amendment of Water Act 1989 16 20 New Subdivision 3A of Division 3 of Part 17 inserted 16 21 Regulatory impact statement not required for first rules made

under section 64FZP 17

Clause Page

Part 4—Repeal of this Act 18 22 Repeal of this Act 18

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Endnotes 19

1 General information 19

Water Legislation Amendment

Act 2023† No. of 2023

[Assented to ]

The Parliament of Victoria enacts:

Part 1—Preliminary 1 Purposes

The purposes of this Act are to— (a) amend the Water and Catchment

Legislation Amendment Act 2021— (i) to extend the last possible date for a

provision of that Act to come into operation; and

Part 1—Preliminary

Water Legislation Amendment Act 2023 No. of 2023

(ii) to make minor amendments to proposed new Part 4AA to be inserted into the Water Act 1989 by that Act as to the regulation of places, rates and times of taking water; and

(iii) to make other minor and technical amendments; and

(b) to make minor related amendments to the Water Act 1989.

2 Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent.

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021 3 Commencement

In section 2(2) of the Water and Catchment Legislation Amendment Act 2021, for "2023" substitute "2024".

4 Definitions In section 5(1) of the Water and Catchment Legislation Amendment Act 2021, in the definitions proposed to be inserted in section 3(1) of the Water Act 1989, insert— "external place of take approval means an

approval given under section 64FZS;". 5 Assignment of water allocation

After section 11(1) of the Water and Catchment Legislation Amendment Act 2021 insert—

'(1A) After section 33U(1) of the Principal Act insert—

"(1AA) A person who holds a right to take water under a water allocation to which section 33AG(4) applies, after obtaining the approval of the Minister under section 33X, may assign the whole or a part of that water allocation to any person.".'.

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

6 Section 26 substituted and new section 26A inserted For section 26 of the Water and Catchment Legislation Amendment Act 2021 substitute—

'26 New section 84VB inserted After section 84VA of the Principal Act insert—

"84VB What details about the holders of certain water rights must be recorded in the water register? The Minister must ensure that the following details are recorded in the water register—

(a) the name and address of the holder of an approved interstate right;

(b) the name and address of a person holding a right to take water under a water allocation that has been assigned under this Act, including by a further or standing assignment;

(c) any other information in relation to any of the details required in a paragraph of this section that the Minister considers necessary.".

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

26A New section 84VC inserted Before Division 5 of Part 5A of the Principal Act insert—

"84VC What is recorded in the water register about place of take approvals under Part 4AA?

(1) The Minister must ensure that the following details are recorded in the water register about general place of take approvals—

(a) the name and address of the holder of the general place of take approval;

(b) a description of the approved place;

(d) the amount of water that has been approved under any particular place of take approvals to be taken from the approved place during each water season;

(e) the water-use licence or water-use registration for the land on which the water, taken at the approved place, is authorised to be used;

(f) the notional rationing rate for the approval—

(i) as fixed under Subdivision 2 of Division 2 of Part 4AA; or

(ii) as varied under that Subdivision (if applicable);

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

(g) any conditions on the approval, including the condition specified in section 64FH;

(h) any other records or information the Minister considers necessary.

(2) The Minister must ensure that the following details are recorded in the water register about particular place of take approvals—

(a) the name and address of the holder of the particular place of take approval;

(b) a description of the approved place;

(c) the amount of water that may be taken under the water allocation to which the particular place of take approval applies;

(d) the water-use licence or water-use registration for the land on which the water, taken under the water allocation, is to be used;

(e) any other records or information the Minister considers necessary.

(3) The Minister must ensure that the following details are recorded in the water register about external place of take approvals—

(a) the name and address of the holder of the external place of take approval;

(b) a description of the approved place;

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

(c) the amount of water that may be taken under the water allocation to which the external place of take approval applies;

(d) any conditions on the approval, including any condition to which the approval is subject under section 64FZU;

(e) any other records or information the Minister considers necessary.".'.

7 Proposed section 64FE of the Water Act 1989 amended—cessation of general place of take approval

In section 32 of the Water and Catchment Legislation Amendment Act 2021, in proposed section 64FE(1)(c)(i)(A) of the Water Act 1989, for "registration; or" substitute "registration; and".

8 Proposed section 64FZJ of the Water Act 1989 amended—giving particular place of take approval

(1) In section 32 of the Water and Catchment Legislation Amendment Act 2021, for proposed section 64FZJ(1) of the Water Act 1989 substitute—

"(1) On application under section 64FZK, the Minister may give approval to the holder of a relevant water allocation, or the holder of a right to future relevant water allocations in a class of relevant water allocation, to take water under that water allocation or those water allocations from a place in a declared water system.".

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

(2) In section 32 of the Water and Catchment Legislation Amendment Act 2021, in proposed section 64FZJ(2) of the Water Act 1989, for "the holder of the relevant water allocation" substitute "the person to whom the approval is to be given".

9 Proposed section 64FZK of the Water Act 1989 amended—application for particular place of take approval

In section 32 of the Water and Catchment Legislation Amendment Act 2021, in proposed section 64FZK of the Water Act 1989, for "The holder of a relevant water allocation" substitute "A person".

10 Proposed section 64FZL of the Water Act 1989 substituted—period for particular place of take approval

In section 32 of the Water and Catchment Legislation Amendment Act 2021, for proposed section 64FZL of the Water Act 1989 substitute—

"64FZL Period for particular place of take approval A particular place of take approval ceases to be in force—

(a) for an approval that applies to a relevant water allocation that is not part of a class of relevant water allocation, when the holder of the approval no longer holds the relevant water allocation; or

(b) for an approval that applies to relevant water allocations in a class of relevant water allocation, when the holder of the approval no longer holds—

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

(i) the right to water under which the holder is entitled to receive current and future relevant water allocations in that class; and

(ii) any relevant water allocation under that right; or

Note

For the purposes of paragraphs (a) and (b), a person no longer holds a relevant water allocation if—

(a) all water under the allocation has been taken; or

(b) water has not been taken under the water allocation before the end of the water season for the allocation and has not been authorised to be taken in a subsequent water season; or

(c) the water otherwise available under the water allocation has been deducted from the holder's right to take water by the Minister under Division 3 of Part 4; or

(d) the water allocation has been assigned to another person.

or a different particular place of take approval is given for the relevant water allocation or the relevant water allocations in the class of relevant water allocation; or

(ii) the holder of the particular place of take approval no longer holds the general place of take approval for which the particular place of take approval has been given.".

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

11 Proposed section 64FZM of the Water Act 1989 amended—review by VCAT

In section 32 of the Water and Catchment Legislation Amendment Act 2021, in proposed section 64FZM of the Water Act 1989—

(a) in paragraph (k), for "64FZJ." substitute "64FZJ;";

(b) after paragraph (k) insert— "(l) section 64FZS.". 12 Proposed section 64FZO of the Water Act 1989

amended—application fees In section 32 of the Water and Catchment Legislation Amendment Act 2021, in proposed section 64FZO of the Water Act 1989, for paragraph (d) substitute—

"(d) be accompanied by— (i) the prescribed fee, if any; or (ii) if no such fee is prescribed, the fee

determined by the Minister.". 13 New Division 5 inserted in proposed Part 4AA of the

Water Act 1989 In section 32 of the Water and Catchment Legislation Amendment Act 2021, after Division 4 of proposed Part 4AA of the Water Act 1989 insert—

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

"Division 5—External place of take approval

64FZR Offence for external place of take approval

(1) A person must not take water under a relevant water allocation from a place—

(a) that is not in a declared water system; or

(b) that is not in Victoria. Penalty: 60 penalty units.

(2) A person does not contravene subsection (1) if—

(a) the person is— (i) an Authority; or (ii) the Water Holder; or (b) the person is acting under and in

accordance with the approval of the Minister under section 64FZS.

64FZS Giving of external place of take approval (1) On application under section 64FZT, the

Minister may give approval to a person who is the holder of a relevant water allocation or the holder of a right to future water allocations in a class of relevant water allocation to take water under that water allocation or those water allocations from a place—

(a) that is not in a declared water system; or

(b) that is not in Victoria.

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

(2) In giving approval under subsection (1), the Minister—

(a) must apply any relevant rules made under Division 4; and

(b) may have regard to any other matters that the Minister considers relevant.

64FZT Application for external place of take approval A person may apply to the Minister for an external place of take approval.

64FZU Conditions on external place of take approvals An external place of take approval is subject to—

(a) any conditions fixed by the Minister; and

(b) any prescribed conditions. 64FZV Period of approval

An external place of take approval ceases to be in force—

(b) for an approval that applies to relevant water allocations in a class of relevant water allocation, when the holder of the approval no longer holds—

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

(i) the right to water under which the holder is entitled to receive current and future relevant water allocations in that class; and

(ii) any relevant water allocation under that right; or

Note

For the purposes of paragraphs (a) and (b), a person no longer holds a relevant water allocation if—

(a) all water under the allocation has been taken; or

(b) water has not been taken under the water allocation before the end of the water season for the allocation and has not been authorised to be taken in a subsequent water season; or

(c) the water otherwise available under the water allocation has been deducted from the holder's right to take water by the Minister under Division 3 of Part 4; or

(d) the water allocation has been assigned to another person.

(c) in any case a different external place of take approval or a particular place of take approval is given for the relevant water allocation or the relevant water allocations in the class of relevant water allocation.".

14 Limited term transfers In section 36 of the Water and Catchment Legislation Amendment Act 2021, for the note at the foot of proposed section 33T(4) of the Water Act 1989 substitute—

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

"Note

Approvals under Part 4AA are also required before water can be taken under water allocations under a limited term transfer.".

15 Standing assignments In section 37 of the Water and Catchment Legislation Amendment Act 2021, for the note at the foot of proposed section 33TA(3) of the Water Act 1989 substitute— "Note

Approvals under Part 4AA are also required before water can be taken under an assigned water allocation.".

16 Assignment of water allocation In section 38(2) of the Water and Catchment Legislation Amendment Act 2021, for the note at the foot of proposed section 33U(4) of the Water Act 1989 substitute— "Note

Approvals under Part 4AA are also required before water can be taken under an assigned water allocation.".

17 Further assignment of water allocation In section 39 of the Water and Catchment Legislation Amendment Act 2021, for the note at the foot of proposed section 33V(2) of the Water Act 1989 substitute— "Note

Approvals under Part 4AA are also required before water can be taken under a further assigned water allocation.".

Part 2—Amendment of Water and Catchment Legislation Amendment Act 2021

Water Legislation Amendment Act 2023 No. of 2023

18 New section 39A inserted After section 39 of the Water and Catchment Legislation Amendment Act 2021 insert—

'39A Approval of Minister to taking of interstate water At the foot of section 33AG(1) of the Principal Act insert— "Note

Approvals under Part 4AA are also required before water can be taken under an approval under subsection (1).".'.

19 Repeal of Act In section 149 of the Water and Catchment Legislation Amendment Act 2021, for "2024" substitute "2025".

Part 3—Amendment of Water Act 1989

Water Legislation Amendment Act 2023 No. of 2023

Part 3—Amendment of Water Act 1989 20 New Subdivision 3A of Division 3 of Part 17 inserted

After Subdivision 3 of Division 3 of Part 17 of the Water Act 1989 insert—

"Subdivision 3A—Transitional provision for external place of take approvals

358A Transition to external place of take approval for certain approvals under section 33AI

(1) On the commencement day, a person who, immediately before the commencement day, was the holder of a transitioning section 33AI approval, is taken to hold an external place of take approval.

(2) For the purposes of subsection (1), the external place of take approval is taken to be—

(a) an approval to take water from the same place as that to which the transitioning section 33AI approval applied; and

(b) subject to the same terms and conditions (if any) as those that applied to the transitioning section 33AI approval.

(3) In this section— transitioning section 33AI approval means

an approval under section 33AI, as in force before the commencement day, to take water from a place—

(a) that is outside Victoria; or

Part 3—Amendment of Water Act 1989

Water Legislation Amendment Act 2023 No. of 2023

(b) that is not in a declared water system.".

21 Regulatory impact statement not required for first rules made under section 64FZP

After section 366(2) of the Water Act 1989 insert—

"(3) If an exemption certificate is issued by the Minister under section 12F of the Subordinate Legislation Act 1994 in respect of an Order made under section 64FZP that comes into effect on the commencement day, subsections (1) and (2) do not apply to that Order.".

Part 4—Repeal of this Act

Water Legislation Amendment Act 2023 No. of 2023

Part 4—Repeal of this Act 22 Repeal of this Act

This Act is repealed on the first anniversary of its commencement.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

Water Legislation Amendment Act 2023 No. of 2023

Endnotes 1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech—

Legislative Assembly:

Legislative Council:

The long title for the Bill for this Act was "A Bill for an Act to amend the Water and Catchment Legislation Amendment Act 2021 to make minor and technical amendments to that Act, to make minor related amendments to the Water Act 1989 and for other purposes."

By Authority. Government Printer for the State of Victoria.