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WATER AMENDMENT (ENTITLEMENTS) BILL 2009

      Water Amendment (Entitlements)
                Bill 2009

                          Introduction Print

               EXPLANATORY MEMORANDUM


                                   General
Part 1 of the Bill provides for preliminary matters, namely the purposes and
commencement of the Bill.
Part 2 of the Bill amends the Water Act 1989 to make further provision as to
rights to water in publicly accessible waterways, to make provision as to the
assignment of water allocations under bulk entitlements and make other
amendments to the provisions as to bulk entitlements, to alter the meaning of
water allocation, to provide for various matters relating to environmental
entitlements and to provide for various matters relating to the provisions for
water shares and the water register.
Part 3 of the Bill makes amendments to the Residential Tenancies Act 1997.
Part 4 of the Bill provides for the repeal of the Bill on 1 January 2012.
The Schedule to the Bill provides for minor and consequential amendments
to the Water Act 1989.

                                Clause Notes

                       PART 1--PRELIMINARY
Clause 1    sets out the purposes of the Bill.
            The purposes of the Bill are to amend the Water Act 1989
            (the Water Act)--
              ·       to make further provision as to rights to water in
                      publicly accessible waterways;
              ·       to make provision as to the assignment of water
                      allocations under bulk entitlements and make other
                      amendments to the provisions as to bulk entitlements;
              ·       to alter the meaning of water allocation;

561166                                 1     BILL LA INTRODUCTION 25/11/2009

 


 

· to provide for various matters relating to environmental entitlements; · to provide for various matters relating to the provisions for water shares and the water register; and · to provide for other minor matters relating to the operation of the Act. The Bill also amends the Residential Tenancies Act 1997 to make further provision for the rating standards for water appliances in premises to which the Act applies. Clause 2 provides for commencement of the Bill. The provisions of the Bill come into operation 1 July 2011 unless they are proclaimed earlier. PART 2--AMENDMENTS TO THE WATER ACT 1989 Clause 3 substitutes certain definitions in 3(1) of the Water Act. Clause 3(1) substitutes the definition of bulk entitlement to mean an entitlement granted under Division 1 of Part 4 of the Water Act. Clause 3(2) substitutes the definition of person to mean an individual or an incorporated body in Part 3A (Water Shares), Division 1A of Part 4 (Environmental Entitlements), Part 4B (Water-Use Licences and Water Use Registrations), Part 5A (Victorian Water Register) and Schedule 12A (Recording Mortgages of Water Shares). In any other part of the Water Act, person means an individual, a body or an association (incorporated or unincorporated) or a partnership. Clause 3(3) substitutes the definition of water allocation. In relation to an environmental entitlement and a bulk entitlement, water allocation means the volume of water determined under a seasonal determination to be available for the entitlement or, in the absence of a seasonal determination for that entitlement, the water that is available to be taken in any water season under the terms of the entitlement. In relation to a water share, water allocation means the amount of water allocated to the water share at any particular time, in accordance with Division 7 of Part 3A. The clause establishes a distinction between the entitlement and the water available to be taken under that entitlement on an annual basis. 2

 


 

Clause 4 substitutes section 8(3) of the Water Act with new subsections (3), (3A), (3B) and (3C). Section 8(3) currently provides that a person has the right to use water taken by that person from a waterway or bore when the water is taken under a right conferred by section 8(1). New section 8(3) restricts the use of water taken for domestic and stock use from a waterway to which a person has access by a public road or a public reserve to the place of taking. The clause in not intended to limit the right to water cattle or other stock, colloquially known as the "drover's right" or the exercise of any cultural rights by Aboriginal persons as recognised by the Charter of Human Rights and Responsibilities Act 2006. New subsections 8(3A), (3B) and (3C) otherwise restate the remaining aspects of substituted section 8(3) regarding using water taken under a right conferred by section 8(1) from a waterway or bore. Clause 5 Clause 5 amends section 9 of the Water Act by omitting references to obsolete provisions. Clause 5(1) substitutes section 9(1)(a) of the Water Act by removing obsolete references to entitlements that have since been converted to bulk entitlements. Clause 5(2) substitutes a new section 9(2)(b) to provide the right to take water to a generation company within the meaning of the Electricity Industry Act 2000, for any purpose connected with the exercise of its functions or powers. The current subsection dealt with the Melbourne and Metropolitan Board of Works Act 1958, which has been repealed, therefore making the current section 9(2)(b) obsolete. Clause 5(3) repeals section 9(2)(c) and 9(2)(e) of the Water Act. Section 9(2)(c) is repealed as it contains references to entities that do not hold bulk entitlements. The relevant entities covered by this Act are provided for in the new section 9(2)(b). Section 9(2)(e) is repealed as it refers to entitlements that are no longer created under Part 11 of the Act. Clause 5(4) substitutes the references to paragraphs (e) or (f) of the definition of Authority in section 34, referred to in section 9(2)(d) of the Water Act, with a reference to paragraph (d). 3

 


 

Clause 6 inserts new sections 33AAA(2A) and 33AAA(2B) into the Water Act. The new section 33AAA(2A) provides that a declaration that a water shortage exists remains in force for the period specified by the Minister in the declaration. The new section 33AAA(2B) provides that a qualification to rights to water during a declared water shortage remains in force for the period for which the declaration remains in force or a lesser period specified in the qualification by the Minister. The clause clarifies how long a temporary qualification can remain in place. These clauses complement section 33AAA which gives the Minister the power to temporarily qualify water rights in the event of a declared water shortage. Clause 7 inserts new section 33AAD into the Water Act which authorises the Minister to impose certain conditions or duties on the holder of a bulk entitlement that has been qualified under Division 4 of Part 3 of the Act, in relation to matters arising from that qualification. Clause 8 amends section 33F(2) of the Water Act by providing that a water share authorises the taking of water under the water allocation for the share during the water season for which the water allocation is allocated. The reference to requiring the approval of the Minister, in a subsequent season has been removed. This is because the authorisation to carry over the water allocation for these entitlements will be brought into effect by the provision enabling the Minister to make a declaration of carry over from the current water season to a subsequent season. The clause also contains a note explaining that the operation of some provisions of the Water Act affect the taking or use of water under a water share. Section 33AD is cited as an example of such a provision. Clause 9 amends section 33S(1) of the Water Act by substituting the reference to "another" person in that section with "a" person. The amendment will facilitate the rearrangement of ownership arrangements of a water share where the transferor will retain an interest in the water share. Clause 10 substitutes section 33T(3) of the Water Act. Section 33T authorises the owner of a water share to transfer the whole of the right to future water allocations under the share for a limited, identified and consecutive period to certain persons. 4

 


 

New section 33T(3) provides that the holder of the transfer is entitled to receive future water allocations under the water share from the date on which the transfer is recorded in the water register or, if a later date is specified in the transfer, on that date. The clause provides that the holder of the limited term transfer will not be entitled to receive future water allocations under the water share until the transfer is recorded in the water register. A limited term transfer can be specified to have a later effect if so intended by the parties. The operation of the clause is consistent with the transfer of ownership of water shares in section 33S(3) of the Water Act. Clause 11 amends sections 33U(3) and (4) of the Water Act to clarify the nature of the entitlement conferred by an assignment of a water allocation under a water share, which is a right to take water. Clause 12 makes consequential amendments to section 33(V)(3) of the Water Act for the reasons set out in relation to clause 11. Clause 13 substitutes section 33X(3) of the Water Act. Section 33X provides for Ministerial approval of a transfer of ownership of a water share, a limited term transfer and water allocation assignment. Section 33(X)(3) provides that the Minister must not give approval for the transfer of ownership of a water share if any fee under Division 9 that is payable in relation to the share is outstanding or for any other prescribed reason. There is presently no ability to prescribe reasons for refusing an application to assign a water allocation or give a limited term transfer. New section 33X(3) allows reasons to be prescribed by which the Minister must refuse an application to assign a water allocation or a limited term transfer. Clause 14 inserts a new section 33Y(4) into the Water Act. New section 33Y(4) provides that on the division of a water share under section 33Y any limited term transfer which applies to the water share will continue to apply in the case of cancellation of the old share to each new share issued, or in the case of variation of one share and the issue of one or more new shares to the share that is varied and to each new share that is issued. Clause 15 amends section 33AC(2) of the Water Act, to clarify that the water allocation for a water share relates to a water season. 5

 


 

Clause 16 substitutes section 33AD of the Water Act. Section 33AD currently provides for individual applications by persons who are entitled to take water under a water allocation for carryover. Approval of the Minister is discretionary and may be subject to such terms and conditions as the Minister sees fit. In giving the approval, the Minister must consider any relevant rules made under Division 13 of the Act. There is currently no mechanism to authorise carry over for all or part of a water system. New section 33AD will replace the current provision which provides for individual applications by persons who are entitled to take water under a water allocation for carry over. New section 33AD(1) will enable the Minister to make a declaration with respect of any water shares authorising the taking of unused water that is entitled to be taken under an existing water allocation for the water shares in a subsequent water season. New section 33AD(2) provides that a declaration may apply to water shares in a water system or part of a water system or a class or classes of water shares or a water system or part of a water system. New section 33AD(3) provides that the taking of carry over water is subject to any terms and conditions specified by the Minister in the declaration. New section 33AD(4) provides that a declaration must be published in the Government Gazette and in a newspaper circulating in the area to which the declaration applies. New section 33AD(5) provides that a declaration has effect upon publication of the notice of making in the Government Gazette. Clause 17 inserts a new section 33AQ(2A) into the Water Act which provides that the owner of a water share may apply to the Minister for a determination under section 33AN. Section 33AN allows the Minister to revoke a determination that a water share is associated with land under section 33AL in circumstances where there are no works or systems that are available or reasonably likely to be available to supply or deliver water to the land with which the share is associated. The power may be exercised on the Minister's own motion or after an application is received. 6

 


 

Clause 18 substitutes the heading for section 33AV of the Water Act and inserts three new sections, sections 33AV(7), (8) and (9) into the Water Act. Section 33AV sets out the consequences of the death of the mortgagee over a water share regarding the mortgagee's interest in the water share. New section 33AV(7) provides that upon the death of a person who holds a mortgage over a water share, the mortgage forms part of the estate of that person. New section 33AV(8) provides that the remainder holdings of the mortgage become joint holdings where the mortgage is held as a joint tenant. New section 33AV(9) provides that where the mortgage is held as a tenant in common that person's portion becomes part of the estate of the person. Clause 19 substitutes the definition of Authority in section 34(1) of the Water Act. Clause 20 inserts new sections 34A and 34B into the Water Act. New section 34A provides that the Minister may by Order published in the Government Gazette grant a bulk entitlement to water to an Authority on approving an application under section 42(1)(c) of the Water Act. New section 34B provides that a bulk entitlement authorises the holder to take and use water in accordance with the terms of the entitlement. The clause also contains a note explaining that the operation of some provisions of the Water Act affect the taking or use of water under a bulk entitlement. Section 47DA is cited as an example of such a provision. Clause 21 inserts the heading to section 35 of the Water Act. The clause also repeals section 35(1) of the Water Act, which provides that an Authority under the Act may only be granted a bulk entitlement to water under Division 1 or 3 of Part 4. This is now dealt with by new section 34A. Clause 22 repeals section 36(2)(b) of the Water Act, which specified the particulars which an application for a bulk entitlement must contain. Section 36(2)(b) is obsolete as section 36(2)(a) already provides for the Minister to determine the form of application. 7

 


 

Clause 23 repeals section 37 of the Water Act. Section 37 is obsolete as the Governor in Council no longer has a role in determining applications for a bulk entitlement. Such applications will be determined by the Minister. Clause 24 makes consequential amendments to section 38(2) of the Water Act by omitting the reference to the Governor in Council. Clause 25 makes consequential amendments to section 39 of the Water Act by omitting references to the Governor in Council. Clause 25 further substitutes section 39(5) of the Water Act. Substituted section 39(5) sets out the matters that a panel appointed under section 39 to consider an application for a bulk entitlement under section 36(1) must have regard to. Clause 26 makes consequential amendments to section 40(1) of the Water Act by omitting references to the Governor in Council. The clause further inserts new section 40(1)(ab) which requires the Minister, in considering an application for a bulk entitlement under section 36(1), to have regard to all submissions received by the panel referred to in clause 25. The clause further repeals section 40(1)(f) of the Water Act which required the Minister to consider the volume of water allocated for sale under section 222(1)(c). Clause 27 makes consequential amendments to section 41 of the Water Act, by omitting references to the Governor in Council. Clause 28 makes consequential amendments to section 42 of the Water Act, by omitting references to the Governor in Council. Clause 28 further repeals section 42(1)(b) omitting the ability for the Minister to give preliminary approval to an application for a bulk entitlement under section 36(1). Given the removal of the ability to give preliminary approval and the change in role of the Governor in Council, sections 42(3), 42(4), 42(5) and 42(6) are repealed and section 42(1)(c) is amended. Clause 29 repeals section 43(bb) of the Water Act and omits the reference to the holder of a licence issued under section 51 and 52. Clause 30 substitutes section 44(1) of the Water Act to provide that the Minister may amend a bulk entitlement or an entitlement to which section 35(2) applies by an Order published in the Government Gazette. This provision clarifies that the Minister may amend an entitlement that was originally issued by the Governor in Council. 8

 


 

The clause further inserts new section 44(4) which defines the word amend in relation to an entitlement under section 44, as including the consolidation of the entitlement with another such entitlement. Clause 31 substitutes section 45 of the Water Act. New section 45 provides that a bulk entitlement may be amended either upon application by the entitlement holder or by the Minister, after consultation with the entitlement holder. New section 45 will also enable amendments to be made where the Minister considers the amendment is necessary to correct a mistake in the description of any element of the entitlement, to make a minor variation arising from practical operations (including any dealing in a right or entitlement under the Act) to vary an obligation or impose a new obligation on a resource manager, storage manager or environmental manager or to make any other amendment to an entitlement that does not impact on another person's entitlement to water or the environmental water reserve. These amendments only come into effect after notice of the amendment is published in the Government Gazette. These amendments provide a streamlined mechanism for making minor amendment to bulk entitlements, by providing that the Minister can make minor changes to bulk entitlements without requiring an application by the entitlement holder. Clause 32 inserts a heading to section 46. This clause further amends section 46 of the Water Act by providing for a temporary transfer of a bulk entitlement between Authorities to be described as an assignment of a water allocation under a bulk entitlement. This clause also provides that an assignment of a water allocation under a bulk entitlement from an Authority to another Authority authorises the assignee to take the assigned water from the date specified in the assignment. Clause 33 amends section 46A of the Water Act, to provide for a temporary transfer of a bulk entitlement from an Authority to an irrigator to be described as an assignment of a water allocation under a bulk entitlement. This clause also amends the types of person to whom a water allocation under a bulk entitlement may be assigned, being the owner or occupier of land specified in a water-use licence or registration or, in an undeclared system, the holder of a licence issued under section 51. 9

 


 

This clause also provides that an assignment of a water allocation for a bulk entitlement from an Authority to an irrigator authorises the assignee to take the assigned water from the date specified in the assignment. Clause 34 amends section 46B of the Water Act to provide for a temporary transfer of a bulk entitlement from an Authority to a person outside Victoria to be described as an assignment of a water allocation under a bulk entitlement. This clause also provides that an assignment of a water allocation under a bulk entitlement from an Authority to persons outside Victoria authorises the assignee to take the assigned water from the date specified in the assignment. Clause 35 substitutes section 47A(1) of the Water Act to restate the existing law which is that an Authority referred to in section 34(1)(c) of the Water Act, being a generation company within the meaning of the Electricity Act 2000, must comply with the specifications of an Order granting a bulk entitlement. Clause 36 amends section 47C of the Water Act, to remove references to obsolete provisions, remove references to obsolete water rights and make a statute law revision. Clause 37 substitutes section 47D(5)(d) of the Water Act, to provide that details of the sale of unallocated water are given to the relevant Authority for entry on the water register. Clause 38 inserts new section 47DA into the Water Act. New section 47DA provides that the Minister may make a declaration in respect of a bulk entitlement to take water in a water system, authorising the taking of water that is entitled to be taken under any water allocation for the bulk entitlement in a subsequent water season. These declarations may apply to bulk entitlements in a water system or part of a water system or to a class or classes of bulk entitlements in a water system or part of a water system. Any taking of water under a declaration of the Minister is subject to the terms and conditions of the bulk entitlement to which the water allocation applies and any terms and conditions specified by the Minister in the declaration. The new section also provides that notice of the making of such a declaration must be published in the Government Gazette or in a newspaper circulating in the area to which the declaration applies. A declaration only has effect after the publication of the notice. 10

 


 

Clause 39 repeals section 48 of the Water Act. Section 48 provided for a register of entitlements to be kept by the Departmental Head and made available for inspection during office hours. This function has been taken over by the water register. Clause 40 amends section 48BA of the Water Act to clarify that the nature of an environmental entitlement as described by this section is subject to other relevant provisions in the Act. The new clause also inserts a note, explaining that the operation of some provisions of the Water Act affect the application of water under an environmental entitlement. An example of the new section 48MA is cited as an example of such an entitlement. Clause 41 inserts section 48MA into the Water Act. Section 48MA provides that the Minister may make a declaration in respect of an environmental entitlement to apply water in a water system, authorising the application of water available to be applied under any water allocation for the environmental entitlement in a subsequent water season. A declaration under this new section applies to environmental entitlements in a water system or part of water system or a class or classes of environmental entitlement in a water system or part of water system. Any application of water under a declaration made by the Minister is subject to the terms and conditions of the environmental entitlement to which the water allocation applies and any terms and conditions specified by the Minister in the declaration. The new section also provides that notice of the making of such a declaration must be published in the Government Gazette or in a newspaper circulating in the area to which the declaration applies. A declaration only has effect after the publication of the notice. Clause 42 amends section 48PB of the Water Act, to provide that the Minister can delegate under a subordinate instrument made under Division 1A of Part 4 of the Water Act. This extends the power of the environment Minister to delegate any of his or her functions, powers or duties under any subordinate instrument made under Division 1A of Part 4 of the Act. These subordinate instruments may include Regulations, bulk entitlements or environmental entitlements. 11

 


 

Clause 43 amends the heading to section 59 of the Water Act. This clause also amends section 59(1) of the Water Act by providing that the Minister of his or her own motion may amend a licence issued under section 51. Clause 44 inserts three new sections 59A, 59B and 59C into the Water Act. Section 59A provides that the Minister can amend a licence issued under section 51 upon application by the licence holder. It also specifies the form, information and fee required for such application. Section 59B provides that the procedure that applies for the issue of a licence under section 51 also apply to an application under section 59A, subject to the operation of section 59C. Section 59C provides that in considering an application for amendment of a licence under section 59A, the Minister must have regard to any matters referred to in sections 53(1)(a) and (b) and 53(2) of the Water Act and any other matter that the Minister thinks fit. Clause 45 inserts new section 62A into the Water Act. Section 62A provides that a Minister may make a declaration in respect of licences issued under section 51 to take water in a water system, authorising that the holders of the licences may take water that is entitled to be taken under the licences in any particular water season in a subsequent water season. A declaration may apply to licences in a water system or part of a water system or a class or classes of licences in a water system or part of a water system. Any taking of water under a declaration will be subject to any terms and conditions of the licence and any terms and conditions specified by the Minister in the declaration. In addition, the Minister must give notice of the making of such declaration in the Government Gazette and in a newspaper circulated in the affected area. Any such declaration comes into effect upon the publication of the notice in the Government Gazette. Clause 46 inserts new section 64(1)(ga) into the Water Act to extend the right of review by the Victorian Civil and Administrative Tribunal for a person whose interests are affected by a decision of the Minister under this Act in relation to an application to amend a licence under section 59A(1) and or 59A(2). 12

 


 

Clause 47 repeals section 64G of the Water Act. Section 64G provided for periodic amendments of bulk entitlements, by the Minster, by notice to the holder of the entitlement. Such amendment will be authorised under new section 45 (clause 31). Clause 48 Section 64GB of the Water Act requires an Authority for each declared water system to determine the amount of water available in the water system for each class of water share, each bulk entitlement and each environmental entitlement for that system. Clause 48 amends section 64GB(1)(b) and (c) to clarify that a determination is only required for bulk entitlements and environmental entitlements where the available water cannot be determined from the terms of the respective entitlement. Clause 49 amends section 64X(b) of the Water Act, to omit the reference to a newspaper circulating generally throughout the State, so that notification of a determination of water-use objectives for water- use licences need only be published in a newspaper circulating generally in the part of the Sate to which the objectives apply. Clause 50 amends section 64AC(1)(b) of the Water Act to omit the reference to a newspaper circulating generally throughout the State, so that notification of a determination on standard water- use licence conditions need only be published in a newspaper circulating generally in the part of the Sate to which the determination relates. Clause 51 amends section 64AU(1) of the Water Act, so that the Minister is given the power to, on application by the holder of a water-use registration, also vary the conditions of the water-use registration. Prior to this, the Minister only had the power to vary the terms of the water use registration. Clause 52 substitutes section 84C(1) and (2) of the Water Act, so that the Minister (and not the Registrar) is responsible for establishing and maintaining the system for the water register. A new section 84C(2A) is inserted to provide that the Registrar is responsible for establishing and maintaining records and information in the water register relating to water shares. Clause 53 amends section 84D of the Water Act, by replacing references to Registrar with references to the Minister. 13

 


 

Clause 54 amends section 84E of the Water Act by clarifying the Registrar's authority to disclose all records and information to the Minister to allow the Minister to carry out his functions under the Water Act. These functions are described in clause 55. Clause 55 inserts a new Division 1A in Part 5A of the Water Act, which details the functions of the Minister in relation to the water register. Clause 56 repeals sections 84G(1)(a), 84G(1)(d), 84G(1)(f) and 84G(2) of the Water Act, which deal with the Registrar's functions. These functions are now to be undertaken by the Minister in accordance with clause 55. Clause 57 substitutes section 84H(1) of the Water Act, relating to the Registrar's power of delegation. New section 84H(1) expresses the Registrar's powers of delegation in a way that is consistent with other powers of delegation under the Act, such as those for the Minister and water corporations. Clause 58 amends section 84J(3) of the Water Act, to provide that the Registrar must not record the transfer of ownership of a water share under section 33S or a limited term transfer unless satisfied at the time the transfer was lodged for recording, that the Minister has approved the transfer. Clause 59 substitutes section 84K of the Water Act. New Section 84K provides that legal personal representative of a deceased estate may lodge a document with the Registrar for the recording of the transmission to the legal personal representative of the ownership of the holding of a limited term transfer. Previously, section 84K only provided for water shares, not limited term transfers. The new section 84K also provides for the recording of a legal personal representative of a deceased mortgage which means that on the death of the mortgagee, the legal personal representative may exercise the rights of the mortgagee as provided for under Schedule 12A of the Act. Section 84K did not previously make provision for the legal personal representative of a deceased mortgagee to be recorded. Clause 60 substitutes section 84L of the Water Act, to enable the legal personal representative and survivor/s of the holder of a limited term transfer to be recorded. Previously, section 84L only provided for the recording of survivorship in joint ownership of water shares, and not limited term transfers. 14

 


 

Clause 61 inserts new section 84Q(1A) into the Water Act. This new section provides an exception to the requirement to record documents in the order lodged where it is clear that the intention of the parties was to lodge and record the documents in a different order. Under the existing provision, the Registrar did not have the power to prioritise the recording of documents other than by order of lodgement. The new provision enables the Registrar to record the documents in a different order if necessary to reflect the intention of the parties. Clause 62 repeals section 84X(2) of the Water Act. Section 84X(2) prevented the address of any person being made available by public search. The section has been repealed as the prohibition on addresses being made available as the result of a search of the water register undermines the function of the water register. The water register is a public register and its purposes as set out in the Water Act is to facilitate the responsible, transparent and sustainable use of the State's water resources. It is considered that prohibition on the publication of addresses undermined these purposes. Clause 63 amends section 84ZG of the Water Act to enable the recording of a transfer of ownership or a limited term transfer of water shares for non-monetary consideration. Section 84ZG previously required that the transfer of ownership of a water share or a limited term transfer state the monetary consideration in relation to the water shares. The new provision allows for the recording of non-monetary consideration, as well as continuing to provide for monetary consideration. Clause 64 substitutes the heading to section 84ZH of the Water Act. The clause also amends section 84ZH to allow the giving of notice to the person's address as recorded in the water register. This can include giving notice by posting the notice to the person's post office box, if the post office box is the address recorded in the water register. Clause 65 amends section 247(1) of the Water Act, by substituting the reference to an Authority with a reference to a water corporation. Clause 66 substitutes section 287C(1)(c) of the Water Act, in relation to the discharging of any recorded mortgage. This section omits references to the priority of the Authority's charge. The priority of the Authority's charge is secured under section 33AK of the Water Act. 15

 


 

Clause 67 amends section 287D of the Water Act. Section 287D of the Act provides that where an Authority sells a water share to recover unpaid fees, the sale is not affected by the rights of the owner of the water share or any mortgagee over the water share over which the Authority's charge has priority. The amendment clarifies that the sale of a water share under section 287B of the Act does not affect the rights of a holder of a limited term transfer under the water share. The clause also amends section 287D(a) of the Water Act to remove references to the priority of the Authority's charge for the reasons mentioned in clause 66. Clause 68 amends section 305C(2) of the Water Act to extend the ability to incorporate by reference material in an instrument made under sections 35, 44, 48B and 48K of the Act. Clause 69 amends section 306(1) of the Water Act. Section 306 provides the power of delegation for the Minister. The amended provision extends this power of delegation to powers, discretions, functions, authorities or duties under any subordinate instrument made under the Water Act. The clause further amends section 306(b) which specifies which powers may not be delegated. Carry over determinations made under sections 33AD, 47DA, 48MA and 62A cannot be delegated. Clause 70 amends section 307 of the Water Act, which deals with the Minister's powers to give directions to an Authority. The clause will provide that the Minister can give a written direction to an Authority in relation to its compliance with any conditions in or duties imposed on an Authority as part of the qualification of the Authority's bulk entitlement under Division 4 of Part 3 of the Water Act. Clause 71 amends the power of the Governor in Council contained in section 324 of the Water Act to make Regulations. The clause amends section 324(1)(ab) to provide a power to prescribe fees for applications for assignments of entitlements. The clause further substitutes section 324(1A) of the Water Act specifying that specified regulations may provide for the waiver of fees and enabling the fixing of one fee for two or more matters. Clause 72 repeals section 325 and Schedule 13 to the Water Act, which are spent provisions. 16

 


 

Clause 73 repeals sections 326(1) and 326(2) and Schedule 14 to the Water Act, which are savings and transitional provisions and are no longer required. Clause 74 inserts a new section 334 into the Water Act. The new section provides that if a body has taken over land under an Order under section 98 of the Water Act as in force before the commencement of section 84 of the Water (Governance) Act 2006 or is the successor in law of a body that has so taken over land, the chief executive officer of the body may apply to the Registrar of Titles to have the Register amended. The new section also specifies the documents and other items required for such an application. Clause 75 substitutes clause 10(1) of Schedule 12A to the Water Act. The substituted clause provides that a person may lodge with the Registrar a discharge of mortgage signed by the mortgagee to disclose a recorded mortgage for a water share. On lodging the discharge, the Registrar may make the recording following which the shares cease to be subject to the money secured by the mortgage. Clause 76 inserts a new clause 9(2A) of Schedule 15 to the Water Act, providing that section 33AV(4) does not apply to limited terms transfers under clause 9(1). Clause 77 amends clause 32 of Schedule 15 to the Water Act, by inserting a new clause 32(3), which provides that in the case of an assignment of a water allocation under a water share to which subclause 9(1)(d) applies, all persons who own a water share, in whole or in part, and all persons who have limited term transfers under the water share, in whole or in part are to be taken to be the holder of the water share. The clause further amends clause 32(1) of Schedule 15 to the Water Act by expanding the list of dealings that can be undertaken with respect to unconfirmed water shares. Clause 78 provides that the Act is further amended in accordance with the Schedule. PART 3--AMENDMENTS TO THE RESIDENTIAL TENANCIES ACT 1997 Clause 79 substitutes the definition of A rating with the definition of prescribed rating system in section 3(1) of the Residential Tenancies Act 1997. 17

 


 

Clause 80 amends sections 69, 72(3), 181 and 188(3) of the Residential Tenancies Act 1997 by replacing the references to "A rating" with a "prescribed level of rating in a prescribed rating system". The amendments allow both the relevant rating system and the level within that system to be prescribed with respect to replacement water appliances required to be fitted under those sections. PART 4--REPEAL Clause 81 provides for the automatic repeal of the Bill on 1 January 2012. The repeal of the Bill does not affect in any way the continuing operation of the amendments made by the Bill (see section 15(1) of the Interpretation of Legislation Act 1984). SCHEDULE MINOR AND CONSEQUENTIAL AMENDMENTS TO THE WATER ACT 1989 The clauses of this Schedule make minor amendments to sections of the Water Act. 18

 


 

 


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