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This is a Bill, not an Act. For current law, see the Acts databases.
WATER RESOURCES BILL 2007
2007
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for the Environment, Water and Climate
Change)
Water
Resources Bill 2007
Contents
Page
2007
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for the Environment, Water and Climate
Change)
Water Resources Bill
2007
A Bill for
An Act to provide for sustainable management of the water resources of the
Territory, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Water Resources Act 2007.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
For example, the signpost definition ‘offence, for part
10 (Enforcement)—see section 78.’ means that the term
‘offence’ is defined in that section for part 10.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
5 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
Part
2 Main principles and
concepts
The objects of this Act are—
(a) to ensure that management and use of the water resources of the
Territory sustain the physical, economic and social wellbeing of the people of
the ACT while protecting the ecosystems that depend on those resources;
and
(b) to protect aquatic ecosystems and aquifers from damage and, where
practicable, to reverse damage that has already happened; and
(c) to ensure that the water resources are able to meet the reasonably
foreseeable needs of future generations.
7 Territory
rights to water
Subject to this Act, the right to the use, flow and control of all water of
the Territory is vested in the Territory and is exercisable by the Minister on
behalf of the Territory.
For this Act, surface water means—
(a) water on or flowing over land (including in a waterway) after
having—
(i) fallen as rain or hail or precipitated in any other way; or
(ii) risen to the surface naturally from underground; or
(iii) been returned to the environment following treatment or use;
and
(b) water mentioned in paragraph (a) that has been collected in a dam,
reservoir or rainwater tank.
(1) For this Act, ground water means water occurring or
obtained from below the surface of the ground or beneath a waterway.
(2) Ground water includes water occurring in or obtained or
flowing from a bore.
(3) However, ground water does not include water occurring
in or obtained or flowing from any other system for the distribution,
reticulation, transportation, storage or treatment of water or waste.
(1) For this Act, waterway means—
(a) a river, creek, stream or other natural channel in which water flows
(whether continuously or intermittently); or
(b) the stormwater system or any other channel formed (whether completely
or partly) by altering or relocating a waterway mentioned in paragraph (a);
or
(c) a lake, pond, lagoon or marsh (whether formed by geomorphic processes
or by works) in which water collects (whether continuously or
intermittently).
(2) Waterway includes—
(a) the bed that the water in the waterway normally flows over or is
covered by; and
(b) the banks that the water in the waterway normally flows between or is
contained by.
(3) However, waterway does not include land normally not
part of the waterway that may be covered from time to time by floodwaters from
the waterway.
(4) In this section:
stormwater means water run-off that is normally collected by
a stormwater system.
stormwater system means a system of pipes, gutters, drains
and channels that are public works constructed to collect or transport
stormwater in or through an urban area.
(1) For this Act, take water includes—
(a) in relation to surface water—
(i) withdraw, pump, extract or use surface water; and
(ii) divert surface water for the purpose of using it; and
(iii) do anything else that results in a reduction of flow of surface
water in a waterway; and
(b) in relation to ground water—allow ground water to flow or be
pumped from a bore.
(2) However, a person does not take water if the person uses
water taken by someone else under a licence to take water.
Example—s (2)
using water provided by a water utility
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Part
3 Environmental flow
guidelines
12 Environmental
flow guidelines
(1) The Minister may approve guidelines (environmental flow
guidelines) for working out the flow of water that is needed to maintain
aquatic ecosystems.
Note Power to make a statutory instrument (including guidelines)
includes power to amend or repeal the instrument (see Legislation Act, s 46
(1)).
(2) Environmental flow guidelines approved by the Minister are a
disallowable instrument.
Note A disallowable instrument must be notified, and
presented to the Legislative Assembly, under the Legislation Act.
13 Environmental
flow guidelines—preparation by authority
(1) Before the Minister approves environmental flow guidelines, the
authority must prepare draft environmental flow guidelines for the
Minister’s approval.
(2) In preparing draft guidelines, the authority must consider principally
the ecological needs of aquatic ecosystems but may also take into account the
environmental, economic and social impact of the guidelines.
14 Environmental
flow guidelines—consultation
(1) After preparing draft guidelines under section 13, the authority must
prepare a written notice (a consultation notice)—
(a) containing a brief description of the draft guidelines; and
(b) stating that copies of the draft guidelines are available for public
inspection for a period (the consultation period) and at the place
stated in the notice; and
(c) inviting people to give written comments about the draft guidelines to
the authority in the consultation period.
(2) The consultation period must be at least 60 days.
(3) The consultation notice—
(a) is a notifiable instrument; and
(b) must be published in a daily newspaper circulating generally in the
ACT.
Note A notifiable instrument must be notified under the Legislation
Act.
(4) The authority must consider any written comments given to it in the
consultation period and may revise the draft guidelines in accordance with the
comments as it considers appropriate.
(5) This section does not apply to a draft amendment of the environmental
flow guidelines that is to make formal changes only.
15 Environmental
flow guidelines—submission to Minister
(1) The authority must submit the draft guidelines (including any revision
under section 14 (4)) to the Minister for approval, together with a written
report—
(a) about the authority’s consultation with the public and with any
particular person or entity about the draft guidelines; and
(b) setting out the issues raised in the comments given to the authority
under section 14 in the consultation period.
(2) On receiving draft guidelines submitted for approval, the Minister
may—
(a) approve the guidelines as submitted; or
(b) refer the draft back to the authority with a written direction to do 1
or more of the following:
(i) conduct further stated consultation;
(ii) consider any revision suggested by the Minister;
(iii) revise the draft in a stated way.
(3) If the Minister refers draft guidelines back to the authority under
subsection (2) (b), the authority must—
(a) comply with the Minister’s directions; and
(b) resubmit the draft guidelines (with any revisions required) to the
Minister for approval together with a written report about the authority’s
compliance with the Minister’s directions and about any revision of the
draft guidelines.
(4) Subsection (2) applies to draft guidelines resubmitted to the Minister
for approval.
Part
4 Water access
entitlements
16 Water
management areas
(1) The Minister must determine areas (water management
areas) for managing the water resources of the Territory.
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
17 Amounts
of water available from areas
(1) The Minister must determine—
(a) the total amount of surface water that is available for taking in each
water management area; and
(b) the total amount of ground water that is available for taking in each
water management area.
(2) The amounts must be determined taking into account—
(a) the environmental flow guidelines; and
(b) the total water resources of the Territory; and
(c) any investigations undertaken by the authority to establish
sustainable yields for the water management area.
(3) The Minister may also determine, for any water management area, an
amount of the water determined under subsection (1) that is to be reserved for
future use.
(4) If the Minister makes a determination reducing the amount of water
reserved for future use under subsection (3), the determination may state the
reason for the reduction.
(5) A determination under this section is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
18 Amounts
of water reasonable for uses
(1) The Minister may determine guidelines for working out the amounts of
water that are reasonable amounts for particular uses.
Note Decisions about granting water access entitlements and issuing
licences to take water require consideration of what are reasonable amounts for
intended uses (see s 21 (2) (a) (ii) and s 30 (2) (c)).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
19 Water
access entitlements
(1) A water access entitlement is an entitlement to the
amount of surface water or ground water stated in the entitlement.
(2) The amount must be stated as the lesser of—
(a) a percentage of the total amount of the surface water or ground water
available for taking from time to time in the water management area stated in
the entitlement; and
(b) a stated maximum volume.
Note Because a water access entitlement entitles the holder to a
percentage of the water available for taking, and that amount is likely to vary
from time to time, the entitlement does not guarantee that a particular volume
of water, or any water, will be available under the entitlement.
20 Water
access entitlement—application
(1) A person may apply to the Minister for a water access
entitlement.
Note 1 If a form is approved under s 108 for this provision, the
form must be used.
Note 2 A fee may be determined under s 107 for this
provision.
(2) The application must be in writing and must state—
(a) the applicant’s name; and
(b) whether the applicant seeks surface water or ground water;
and
(c) the amount of water sought; and
(d) the water management area to which the amount relates; and
(e) the intended use of the water; and
(f) the place where the applicant intends to access the water and the
basis of the applicant’s right to have access to that place.
(3) The Minister may, by written notice given to the applicant, require
the applicant to give the Minister additional information or documents the
Minister reasonably needs to decide the application.
(4) If the applicant does not comply with a requirement under subsection
(3), the Minister may refuse to consider the application further.
21 Water
access entitlement—decision on application
(1) On application by a person for a water access entitlement, the
Minister must—
(a) grant the water access entitlement; or
(b) refuse to grant the water access entitlement.
(2) The Minister must not grant the water access entitlement unless
satisfied that—
(a) the amount of water to which the entitlement would give
access—
(i) is available for taking having regard to any determination in force
under section 17 (Amounts of water available from areas) and any other water
access entitlements and surviving allocations that exist in relation to the
water management area; and
(ii) is not more than a reasonable amount for the intended use having
regard to any determination in force under section 18 (Amounts of water
reasonable for uses); and
(b) the water is not intended to be used on urban residential property;
and
(c) the intended use of the water is otherwise consistent with the
Territory plan; and
(d) the applicant does not hold a surviving allocation; and
Note Surviving allocations are water
allocations that were granted under the repealed Act. A person holding a
surviving allocation may surrender it, and be granted a water access
entitlement, under this Act, pt 13 (Surviving allocations).
(e) it is appropriate to grant the entitlement having regard
to—
(i) the applicant’s environmental record; and
(ii) anything else the Minister considers relevant.
(3) Subsection (2) (b) does not apply if the applicant is a water
utility.
(4) In deciding applications, the Minister must give
priority—
(a) first, to any application for surface water by the owner or occupier
of land who—
(i) was previously able to take water without a licence because the water
was taken from a waterway on or immediately adjacent to the land; and
(ii) can no longer do so because a boundary change was made to the land,
on the Territory’s initiative, after the commencement of this Act;
and
(iii) is seeking the water for stock or domestic use; and
(b) second, to any application by a person who does not have access to
urban water supply and is seeking the water for stock or domestic use;
and
(c) after that, as the Minister considers appropriate.
22 Water
access entitlement—content
A water access entitlement must state—
(a) the name of the holder of the entitlement; and
(b) the amount of surface water or ground water that may be taken;
and
Note The amount must be stated as the
lesser of a percentage of the total amount of water available for taking in the
water management area and a stated maximum volume (see s
19 (2)).
(c) the water management area to which the amount relates; and
(d) if the holder does not have access to urban water supply and the
entitlement is for water for stock or domestic use—
(i) that the water is for stock or domestic use; and
(ii) the place where the water may be taken; and
(e) anything else required under this Act to be stated in the water access
entitlement.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
23 Water
access entitlement—conditions
(1) A water access entitlement is subject to any
condition—
(a) imposed when the entitlement is granted; or
(b) prescribed by regulation; or
(c) imposed on amendment of the entitlement under section 24.
Examples of conditions to which water access
entitlement may be subject
1 that the water may be used only for the purpose stated in the
entitlement
2 that the water may be used only in a water management area
3 that the water may be taken only from the place stated in the
entitlement
4 for an entitlement to ground water granted to enable a bore to be
drilled—that the entitlement will expire at the end of 12 months after the
entitlement is granted if ground water is not found in that period.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The conditions to which a water access entitlement is subject are
taken to be conditions of any licence to take water that is based on the
entitlement.
24 Water
access entitlement—amendment
(1) The authority may amend a water access entitlement, including by
imposing a condition on, or amending an existing condition of, the
entitlement.
Note A fee may be determined under s 107 for this
provision.
(2) However, the authority may amend an entitlement only
if—
(a) the authority has given the holder of the entitlement written notice
of the proposed amendment; and
(b) the notice states that written comments on the proposal may be made to
the authority before the end of a stated period of at least 14 days after
the day the notice is given to the holder; and
(c) the authority has considered any comments made before the end of the
stated period.
(3) Subsection (2) does not apply if the holder applied for, or agreed in
writing to, the proposed amendment.
(4) The amendment of an entitlement takes effect on—
(a) the date on which notice of the amendment is given to the holder;
or
(b) if a later date is stated in the notice—that date.
(5) A condition imposed or amended by the authority must not be
inconsistent with any condition prescribed by regulation that applies to the
entitlement.
(6) This section does not apply to an amendment made under
section 25.
25 Water
access entitlement—special provision for certain entitlements based on
surviving allocations etc
(1) This section applies to a water access entitlement granted by the
authority under section 111 (Surviving allocations—surrender
generally) or section 202 (Water access entitlement for certain existing
licence holders) that includes a statement about where the water may be
taken.
Note The statement is included on—
• water access entitlements granted under s 111 if no fee was
paid under the repealed Act for the grant of the surrendered allocation;
and
• all water access entitlements granted under s 202.
(2) On application by the holder of the entitlement, the authority must
amend the water access entitlement to remove the statement.
Note A fee may be determined under s 107 for this
provision.
(3) The authority must also amend the entitlement to remove the statement
before—
(a) approving a transfer of the entitlement; or
(b) making any other amendment of the entitlement.
Example—s
(3) (b)
changing the percentage of water that may be taken stated in the
entitlement
Note 1 A fee may be determined under s 107 for this
provision.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) Subsection (3) does not apply in relation to—
(a) an entitlement held by a water utility; or
(b) an entitlement that—
(i) is held by a person who does not have access to urban water supply;
and
(ii) is for water for stock or domestic use; or
(c) an amendment of an entitlement held by an individual that is to be
made only because the individual has changed his or her name.
26 Water
access entitlement—transfer
(1) The holder of a water access entitlement may, with the approval of the
authority, transfer the whole or part of the entitlement to someone
else.
Note A fee may be determined under s 107 for this
provision.
(2) The authority must not approve the transfer of a water access
entitlement unless satisfied that—
(a) the intended use of the water and the place it is proposed to be used
is consistent with—
(i) the conditions of the entitlement; and
(ii) the Territory plan; and
(b) it is appropriate to approve the transfer having regard
to—
(i) the transferee’s environmental record; and
(ii) anything else the authority considers relevant.
(3) A transfer of a water access entitlement may be absolute or for a
limited period.
(4) A transfer of part of a water access entitlement must be for units no
smaller than 0.5ML.
(5) A water access entitlement that entitles the holder to water for stock
or domestic use on particular land may be transferred to someone else only if
the holder’s interest in the land is also transferred to that
person.
(6) A regulation may make provision in relation to the transfer of water
access entitlements.
27 Water
access entitlement—effect of transfer on licence to take
water
(1) If a person transfers absolutely the whole of a water access
entitlement or corresponding water access entitlement to which a licence to take
water relates, the licence is taken to be cancelled.
(2) If a person transfers, for a limited period, the whole of a water
access entitlement or corresponding water access entitlement to which a licence
to take water relates, the licence is taken to be suspended for the
period.
(3) If a person transfers absolutely part of a water access entitlement or
corresponding water access entitlement to which a licence to take water relates,
the amount of water the person is authorised to take under the licence is taken
to be reduced by the amount of the transfer.
(4) If a person transfers, for a limited period, part of a water access
entitlement or corresponding water access entitlement to which a licence to take
water relates, the amount of water the person is authorised to take under the
licence is taken to be reduced by the amount of the transfer for the
period.
(5) In this section:
corresponding water access entitlement means a water access
entitlement (however described) granted under a law of the Commonwealth, a State
or another Territory that regulates the granting of entitlements to water and is
prescribed by regulation for this definition.
Division
5.1 Licences to take
water
28 Licence
to take water—requirement
(1) A person commits an offence if the person—
(a) takes surface water or ground water from a place; and
(b) does not have a licence to take the water from the place.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person who is the owner or occupier of land commits an offence if
the person—
(a) takes ground water from a bore on the land; and
(b) does not have a licence to take the ground water.
Maximum penalty: 50 penalty units.
(3) An offence against subsection (2) is a strict liability
offence.
(4) A person commits an offence if the person—
(a) in the conduct of a business carrying or extracting water, takes
surface water from a place; and
(b) does not have a licence to take the surface water.
Maximum penalty: 50 penalty units.
(5) An offence against subsection (4) is a strict liability
offence.
(6) This section does not apply to—
(a) the taking of water from a waterway—
(i) for camping or similar purposes; or
(ii) for watering travelling stock; or
Examples—par
(a) (i)
1 bushwalking
2 picnicking
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(b) the taking of rainwater from a rainwater tank that has been installed
in accordance with the approval (if any) required under the Planning and
Development Act 2007, chapter 7 (Development approvals); or
(c) the owner or occupier of land on or immediately adjacent to which
there is a waterway who takes water from the waterway, or surface water from the
land, for stock or domestic use; or
(d) the exercise or purported exercise by a relevant person of a function
under the Emergencies Act 2004 for the purpose of protecting life or
property, or controlling, extinguishing or preventing the spread of a fire;
or
(e) the taking of water by a person who is exempt under a regulation from
the requirement to have a licence.
(7) In this section:
relevant person means—
(a) the chief officer (fire brigade); or
(b) any other member of the fire brigade; or
(c) the chief officer (rural fire service); or
(d) any other member of the rural fire service; or
(e) a police officer; or
(f) any other person under the control of the chief officer (fire brigade)
or the chief officer (rural fire service).
29 Licence
to take water—application
(1) A person may apply to the authority for a licence to take water from a
stated place.
Note 1 If a form is approved under s 108 for this provision, the
form must be used.
Note 2 A fee may be determined under s 107 for this
provision.
(2) The authority may, by written notice given to the applicant, require
the applicant to give the authority additional information or documents the
authority reasonably needs to decide the application.
(3) If the applicant does not comply with a requirement under subsection
(2), the authority may refuse to consider the application further.
30 Licence
to take water—decision on application
(1) On application by a person for a licence to take water, the authority
must—
(a) issue the licence; or
(b) refuse to issue the licence.
(2) The authority must not issue the licence unless satisfied
that—
(a) the applicant—
(i) holds a water access entitlement, a corresponding water access
entitlement or a surviving allocation on which to base the taking of water under
the licence; or
(ii) is exempt from this requirement under a regulation; and
(b) the water to be taken under the licence is to be taken
from—
(i) the water management area stated in the water access entitlement or
subcatchment stated in the surviving allocation; or
(ii) another water management area from which the water may be taken under
section 32 (Licence to take water—where water may be taken) or under a
regulation; and
(c) the amount of water to be taken under the licence is not more than a
reasonable amount for the intended use having regard to any determination in
force under section 18; and
(d) the water is not intended to be used on urban residential property;
and
(e) the intended use of the water is otherwise consistent with the
Territory plan; and
(f) the applicant has lawful authority—
(i) to obtain access to the place from which the water is to be taken
under the licence; and
(ii) if the water is to be diverted from that place to where it is to be
used—to divert the water; and
(g) if the application relates to a development for which an approval is
required under the Planning and Development Act 2007, chapter 7
(Development approvals)—the development has been approved under that
chapter.
(3) Also the authority must not issue the licence unless satisfied it is
appropriate to do so having regard to—
(a) the applicant’s environmental record; and
(b) whether issuing the licence would or may—
(i) adversely affect the environmental flows for a particular waterway or
aquifer that are required under the environmental flow guidelines; or
(ii) adversely affect the environment in any other way; or
(iii) adversely affect the interests of other water users; and
(c) anything else the authority considers relevant.
(4) Subsection (2) (d) does not apply—
(a) to a water utility; or
(b) if the entitlement on which the licence is to be
based—
(i) was granted under section 111 (Surviving allocations—surrender
generally) or section 202 (Water access entitlement for certain existing
licence holders) (whether or not it has been later transferred); and
(ii) allows the water to be used on stated urban residential
property.
(5) A regulation made for subsection (2) (a) may authorise the
authority to exempt a person from the requirement mentioned in that subsection
in the circumstances prescribed by regulation.
31 Licence
to take water—conditions
(1) A licence to take water is subject to any condition—
(a) prescribed by regulation; or
(b) imposed on the licence by the authority.
Examples of conditions to which licence may
be subject
1 that records must be kept
2 that a water meter must be installed, operated and maintained
3 that information about compliance with licence conditions must be given
to the authority
4 that monitoring and testing must be done after water is taken
5 that places from which water is taken must be marked in a stated
way
6 that water may only be taken at a stated rate (which may be different for
different days of the year)
7 that not more than a stated maximum amount of water may be
taken
8 that water must not be taken from a waterway at a time when there is no
or little flow in the waterway
9 that the authority must be allowed to conduct regular routine
inspections
Note 1 The licence is also subject to any condition that applies to
a water access entitlement on which the licence is based (see
s 23 (2)).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A condition imposed by the authority must not be inconsistent with any
condition prescribed by regulation that applies to the licence.
32 Licence
to take water—where water may be taken
(1) A licence to take water held by a water utility may authorise the
utility to take surface water under the licence from—
(a) the water management area stated in the water access entitlement on
which the licence is based; or
(b) a place in a waterway that is downstream from the water management
area; or
(c) any other water management area for which the utility holds a water
access entitlement.
(2) A licence to take water held by a person other than a water utility
may authorise the person to take surface water under the licence
from—
(a) the water management area stated in the water access entitlement on
which the licence is based; or
(b) if the water management area is prescribed by regulation for this
paragraph—a place in a waterway that is downstream from the water
management area.
(3) A licence to take water must not authorise ground water to be taken
under the licence from a water management area other than the water management
area stated in the water access entitlement on which the licence is
based.
(4) In this section:
water access entitlement includes a surviving allocation.
Note Surviving allocation is defined in s 110.
Division
5.2 Driller’s
licences
33 Driller’s
licence—requirement
A person commits an offence if the person—
(a) does bore work; and
(b) does not hold a driller’s licence to do the bore work.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
34 Driller’s
licence—application
(1) A person may apply to the authority for a driller’s
licence.
Note 1 If a form is approved under s 108 for this provision, the
form must be used.
Note 2 A fee may be determined under s 107 for this
provision.
(2) The authority may, by written notice given to the applicant, require
the applicant to give the authority additional information or documents the
authority reasonably needs to decide the application.
(3) If the applicant does not comply with a requirement under subsection
(2), the authority may refuse to consider the application further.
35 Driller’s
licence—decision on application
(1) On application by a person for a driller’s licence, the
authority must—
(a) issue the licence; or
(b) refuse to issue the licence.
(2) The authority must not issue a driller’s licence unless
satisfied that—
(a) the applicant has the qualifications (if any) approved under
subsection (3); and
(b) it is appropriate to issue the licence having regard
to—
(i) the applicant’s environmental record; and
(ii) anything else the authority considers relevant.
(3) The authority may approve qualifications that must be held by a person
who holds a driller’s licence.
(4) An approval is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
36 Driller’s
licence—conditions
(1) A driller’s licence is subject to any condition—
(a) prescribed by regulation; or
(b) imposed on the licence by the authority.
(2) A condition imposed by the authority must not be inconsistent with any
condition prescribed by regulation that applies to the licence.
Division
5.3 Bore work
licences
37 Bore
work licence—requirement
(1) A person who is the owner or occupier of land commits an offence
if—
(a) bore work is done on the land; and
(b) the person does not have a bore work licence for the bore
work.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person who is the holder of a driller’s licence commits an
offence if—
(a) the person does bore work on land; and
(b) the owner or occupier of the land does not have a bore work licence
for the bore work.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) This section does not apply to bore work that is exempt from the
requirement for a bore work licence under a regulation.
38 Bore
work licence—application
(1) A person may apply to the authority for a licence to do bore
work.
Note 1 If a form is approved under s 108 for this provision, the
form must be used.
Note 2 A fee may be determined under s 107 for this
provision.
(2) The authority may, by written notice given to the applicant, require
the applicant to give the authority additional information or documents the
authority reasonably needs to decide the application.
(3) If the applicant does not comply with a requirement under subsection
(2), the authority may refuse to consider the application further.
39 Bore
work licence—decision on application
(1) On application by a person for a bore work licence, the authority
must—
(a) issue the licence; or
(b) refuse to issue the licence.
(2) The authority must not issue a bore work licence unless satisfied
that—
(a) the applicant holds a water access entitlement or surviving allocation
in relation to ground water to be taken from the proposed bore; and
(b) it is appropriate to grant the licence having regard
to—
(i) the proximity of any existing bores; and
(ii) anything else the authority considers relevant.
40 Bore
work licence—conditions
(1) A bore work licence is subject to any condition—
(a) prescribed by regulation; or
(b) imposed on the licence by the authority.
(2) A condition imposed by the authority must not be inconsistent with any
condition prescribed by regulation that applies to the licence.
Division
5.4 Waterway work
licences
In this division:
water structure means—
(a) a dam (whether or not it is in or on a waterway); or
(b) another water retention structure in or on a waterway.
waterway work means—
(a) constructing or altering a water structure; or
(b) doing other work in or on a waterway.
42 Waterway
work licence—requirement
(1) A person commits an offence if—
(a) the person does waterway work; and
(b) the work adversely affects, or may adversely affect, the flow or
quality of water, or the aquatic habitat, in the waterway; and
(c) the person does not have a waterway work licence for the waterway
work.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(2) This section does not apply to the construction or alteration
of—
(a) a water structure that has a capacity of less than 2ML and is not in a
waterway; or
(b) a structure prescribed by regulation.
43 Waterway
work licence—application
(1) A person may apply to the authority for a licence to do waterway
work.
Note 1 If a form is approved under s 108 for this provision, the
form must be used.
Note 2 A fee may be determined under s 107 for this
provision.
(2) The authority may, by written notice given to the applicant, require
the applicant to give the authority additional information or documents the
authority reasonably needs to decide the application.
(3) If the applicant does not comply with a requirement under subsection
(2), the authority may refuse to consider the application further.
44 Waterway
work licence—decision on application
(1) On application by a person for a waterway work licence, the authority
must—
(a) issue the licence; or
(b) refuse to issue the licence.
(2) The authority must not issue a waterway work licence unless satisfied
it is appropriate to do so having regard to—
(a) whether issuing the licence would or may—
(i) adversely affect the environmental flows for a particular waterway or
aquifer that are required under the environmental flow guidelines; or
(ii) adversely affect the environment in any other way; or
(iii) adversely affect the interests of other water users; and
(b) whether the work would be in the interests of the public;
and
(c) for work that involves the construction or alteration of a water
structure—
(i) whether the structure is designed to allow water to pass over, under
or through it; and
(ii) the need for the structure and whether another more appropriate
approach is available; and
(d) anything else the authority considers relevant.
45 Waterway
work licence—conditions
(1) A waterway work licence is subject to any condition—
(a) prescribed by regulation; or
(b) imposed on the licence by the authority.
(2) A condition imposed by the authority must not be inconsistent with any
condition prescribed by regulation that applies to the licence.
46 Planning
and Development Act not affected
This division does not affect the operation of the Planning and
Development Act 2007.
Division
5.5 Recharge
licences
47 Recharge
licence—requirement
A person commits an offence if the person—
(a) does any of the following work for the purpose of increasing the
quantity of groundwater:
(i) constructs works;
(ii) operates works;
(iii) alters works; and
(b) does not have a recharge licence for the work.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
48 Recharge
licence—application
(1) A person may apply to the authority for a recharge licence.
Note 1 If a form is approved under s 108 for this provision, the
form must be used.
Note 2 A fee may be determined under s 107 for this
provision.
(2) The authority may, by written notice given to the applicant, require
the applicant to give the authority additional information or documents the
authority reasonably needs to decide the application.
(3) If the applicant does not comply with a requirement under subsection
(2), the authority may refuse to consider the application further.
49 Recharge
licence—decision on application
(1) On application by a person for a recharge licence, the authority
must—
(a) issue the licence; or
(b) refuse to issue the licence.
(2) The authority must not issue a recharge licence unless satisfied it is
appropriate to do so having regard to—
(a) the applicant’s environmental record; and
(b) the risk of the rising level of ground water damaging soil, rock or
structures; and
(c) the risk of damaging ecosystems that depend on the area in question;
and
(d) the risk of affecting the natural drainage of surface water of the
area in question; and
(e) anything else the authority considers relevant.
50 Recharge
licence—conditions
(1) A recharge licence is subject to any condition—
(a) prescribed by regulation; or
(b) imposed on the licence by the authority.
(2) A condition imposed by the authority must not be inconsistent with any
condition prescribed by regulation that applies to the licence.
51 Recharge
licence—cancellation
The authority may cancel a recharge licence if satisfied that the work
being carried out under the licence is—
(a) damaging soil, rock or structures; or
(b) damaging ecosystems that depend on the area in question; or
(c) affecting the natural drainage of surface water of the area in
question.
Note A recharge licence may also be cancelled under pt 6
(Disciplinary action) or s 106 (Nonpayment of fees).
Division
5.6 Licences—general
provisions
A licence is issued for the term stated in the licence.
(1) The holder of a licence may apply, in writing, to the authority for
renewal of the licence.
Note 1 If a form is approved under s 108 for this provision, the
form must be used.
Note 2 A fee may be determined under s 107 for this
provision.
(2) The application must be made not later than 14 days before the end of
the licence period.
(3) If the application is made in accordance with subsection (2), the
licence remains in force, subject to this Act, until the application is
decided.
(4) On application to renew a licence, the authority must—
(a) renew the licence; or
(b) refuse to renew the licence.
(5) If the authority renews the licence, the renewal of the licence begins
on the day after the day the licence being renewed ends.
(6) A suspended licence may be renewed, but the renewed licence is
suspended until the suspension ends.
54 Licences—not
transferable
A licence is not transferable.
(1) The authority may amend a licence, including by imposing a condition
on, or amending an existing condition of, the licence.
(2) However, the authority may amend a licence only if—
(a) the authority has given the licence holder written notice of the
proposed amendment; and
(b) the notice states that written comments on the proposal may be made to
the authority before the end of a stated period of at least 14 days after
the day the notice is given to the holder; and
(c) the authority has considered any written comments made before the end
of the stated period.
(3) Subsection (2) does not apply if the holder applied for, or agreed in
writing to, the proposed amendment.
(4) A condition imposed or amended by the authority must not be
inconsistent with any condition prescribed by regulation that applies to the
licence.
(5) The amendment of a licence takes effect on—
(a) the date on which notice of the amendment is given to the holder;
or
(b) if a later date is stated in the notice—that date.
The holder of a licence may surrender the licence to the authority by
written notice accompanied by the licence.
57 Offence—failing
to produce licence
(1) The holder of a licence must, if asked by the authority, produce the
holder’s licence to the authority when carrying out an activity under the
licence.
Maximum penalty: 5 penalty units.
(2) An offence against this section is a strict liability
offence.
58 Offence—contravening
licence conditions
(1) The holder of a licence commits an offence if the holder contravenes a
condition of the licence.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability
offence.
59 Offences—contravening
certain conditions of licence to take water
(1) The holder of a licence to take water commits an offence
if—
(a) the holder’s licence is subject to a condition requiring the
holder to install a water meter; and
(b) the holder contravenes the condition.
Maximum penalty: 25 penalty units.
(2) The holder of a licence to take water commits an offence
if—
(a) the holder’s licence is subject to a condition requiring the
holder to maintain a water meter in working condition; and
(b) the holder contravenes the condition.
Maximum penalty: 25 penalty units.
(3) The holder of a licence to take water commits an offence
if—
(a) the holder’s licence is subject to a condition requiring the
holder to record water meter readings at stated times or intervals;
and
(b) the holder contravenes the condition.
Maximum penalty: 10 penalty units.
(4) The holder of a licence to take water commits an offence
if—
(a) the holder’s licence is subject to a condition requiring the
holder to give water meter data to the authority; and
(b) the holder contravenes the condition.
Maximum penalty: 25 penalty units.
(5) The holder of a licence to take water commits an offence
if—
(a) the holder’s licence is subject to a condition limiting the use
of the water; and
(b) the holder contravenes the condition.
Maximum penalty: 50 penalty units.
(6) An offence against this section is a strict liability
offence.
Part
6 Disciplinary
action
60 Grounds
for disciplinary action
Each of the following is a ground for disciplinary action
against a person who holds a water access entitlement, surviving allocation or
licence:
(a) the person gave information to the Minister or authority in relation
to the application for, or an application for amendment of, the entitlement,
allocation or licence that was false or misleading in a material
particular;
(b) the person has contravened, or is contravening, a condition of the
entitlement, allocation or licence;
(c) the person has contravened, or is contravening, this Act (or a
requirement made under this Act), whether or not the holder has been convicted
or found guilty of an offence for the contravention;
(d) the person has contravened, or is contravening, a territory law (other
than this Act) or a law of the Commonwealth, a State or another Territory,
whether or not the holder has been convicted or found guilty of an offence for
the contravention.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Each of the following is disciplinary action when taken
against a person who is the holder of a water access entitlement, surviving
allocation or licence:
(a) reprimanding the person;
(b) for a driller’s licence—requiring the person to complete a
stated course of training to the satisfaction of the authority or another stated
person;
(c) amending the entitlement, allocation or licence, including by imposing
a condition on it or amending any of its conditions;
(d) suspending the entitlement, allocation or licence—
(i) for a stated period; or
(ii) until a stated event happens;
(e) cancelling the entitlement, allocation or licence;
(f) cancelling the entitlement, allocation or licence and disqualifying
the person from applying for an entitlement or licence—
(i) for a stated period; or
(ii) until a stated event happens.
62 Taking
disciplinary action
(1) If the authority proposes to take disciplinary action in relation to a
person, the authority must give the person a written notice
(a disciplinary notice) that—
(a) states the proposed action (including any proposed suspension or
disqualification period or amendment of an entitlement, allocation or licence);
and
(b) states the grounds for the proposed action; and
(c) tells the person that the person may, not later than 14 days after the
day the person receives the notice, give a written response to the authority
about the notice.
(2) In deciding whether to take disciplinary action, the authority must
consider any response given to the authority by the person in accordance with
the notice.
(3) The authority may take the proposed disciplinary action in relation to
the person if satisfied that a ground for taking disciplinary action has been
established in relation to the person.
(4) The authority must give the person written notice of the
authority’s decision.
(5) Disciplinary action under this section takes effect
on—
(a) the day when notice of the decision is given to the person;
or
(b) if the notice states a later date of effect—that date.
63 Effect
of suspension of entitlement, allocation or licence
(1) If a water access entitlement, surviving allocation or licence is
suspended—
(a) the entitlement, allocation or licence does not authorise the holder
to do anything authorised under the entitlement, allocation or licence during
the suspension; and
(b) the holder is, during the suspension—
(i) taken not to hold the entitlement, allocation or licence;
and
(ii) disqualified from applying for an entitlement or licence.
(2) However, the entitlement may still be transferred, and the allocation
may still be surrendered, in accordance with this Act.
(3) The authority may end the suspension of an entitlement that is
transferred or an allocation that is surrendered.
64 Functions
of environment protection authority
(1) The authority has the following functions under this Act:
(a) to keep the state and condition of the water resources of the
Territory under review;
(b) to coordinate policies in relation to water resource
management;
(c) to regulate the allocation of water from waterways;
(d) to compile and maintain up-to-date information about the water
resources of the Territory;
(e) to promote the importance, and encourage the efficient use, of water
resources;
(f) to foster public education about the management of water resources;
(g) to implement national water resource measures made under national
scheme laws or intergovernmental agreements relating to water resource
management;
(h) to confer, and exchange information, with any entity having functions
corresponding to those of the authority under a law of the Commonwealth, a State
or another Territory relating to water resource management;
(i) any other functions given to the authority under this Act.
(2) In exercising the authority’s functions under this Act, the
authority must have regard to the objects set out in section 6 and, where
appropriate, promote an integrated approach to water resource management,
environment protection and water catchment management.
The authority may delegate its functions under this Act to a public
employee.
Note For the making of delegations and the exercise of delegated
functions, see Legislation Act, pt 19.4.
(1) The authority must keep a register for this Act.
(2) The register may be kept in any form, including electronically, that
the authority decides.
(3) The register must include details of each of the water access
entitlements granted, surviving allocations in force, licences issued and
transfers made under this Act.
(4) The register may also include—
(a) information required to be provided to the authority under a water
access entitlement, surviving allocation or licence; and
(b) information given to the authority about third party interests in
water access entitlements, surviving allocations or licences; and
(c) other information collected by the authority in carrying out its
functions under this Act; and
Example
the results of monitoring, testing or recording carried out by the
authority
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(d) any other information given to or held by the authority in relation to
the water resources of the Territory (whether current or historical).
67 Inspection
of register
(1) The register must be available for public inspection at reasonable
times.
(2) A person may, on payment of the reasonable copying costs, obtain a
copy of any information in the register.
Part
8 Assessment of water
resources
68 Water
resources investigation
(1) The authority must ensure, as far as possible, that a continuous
program for the assessment of water resources of the Territory is carried
out.
(2) For this part, the authority may—
(a) construct, repair, alter or remove gauging, recording and monitoring
stations or drill bores; and
(b) systematically gauge stream flow, record climate data and monitor
ground water levels; and
(c) operate or maintain gauging, recording and monitoring stations;
and
(d) carry out investigations to determine the existence, location and
nature of bores and water structures; and
(e) monitor bores and water structures; and
(f) sample and analyse water.
(3) The authority may, at all reasonable times, enter land to take
measures and carry out work that is reasonably required for the purpose of doing
something mentioned in subsection (2) and with the people and equipment that is
reasonably required.
Note The Criminal Code, s 361 and s 363 contain offences for
obstructing Territory public officials.
(4) However, the authority must not enter land to do work mentioned in
subsection (2) (a) unless, at least 14 days before the entry day, the authority
gave the owner or occupier of the land written notice (a works
notice) of—
(a) the land proposed to be entered; and
(b) the work proposed to be done; and
(c) any vehicle, plant or machinery proposed to be used to carry out the
work.
(5) The authority may, at all reasonable times, enter land on which work
mentioned in a works notice is being, or has been, done for the purpose of doing
something mentioned in subsection (2) (b), (c), (d), (e) or (f) and with
the people and equipment that is reasonably required.
(6) This section does not authorise entry into a part of premises that is
being used for residential purposes other than with the occupier’s
consent.
(7) A person who enters land under this section is not authorised to
remain on the land if, on request by the occupier of the land, the person does
not produce—
(a) for an authorised officer—the officer’s identity card;
or
(b) in any other case—a certificate signed by the authority for this
section that the person is authorised to carry out an activity mentioned in the
certificate.
69 Cooperation
etc with other jurisdictions
For this part, the authority may liaise and work in cooperation with the
Commonwealth or a State in the investigation of water resources in which there
is a shared interest.
70 Things
fixed to land by authority not taken to be fixtures
If, in the exercise of a function, the authority attaches anything to land,
it is taken not to be—
(a) a fixture to the land for the purpose of giving the owner or occupier
of the land a proprietary interest in it; or
(b) an improvement.
Part
9 Protection of water
resources
71 Notice
prohibiting or restricting taking of water
(1) This section applies if—
(a) temporary water restrictions are in force under the Utilities
(Water Conservation) Regulation 2006; or
(b) the Minister is satisfied that—
(i) because of contamination of surface water or ground water, taking the
water may pose a risk to the health or safety of people or of damage to property
or the environment; or
(ii) for any other reason, taking surface water or ground water may
adversely affect the environment.
(2) The Minister may, by written notice, prohibit or restrict the taking
of surface water or groundwater.
(3) The notice is a notifiable instrument.
Note 1 A notifiable instrument must be notified under the
Legislation Act.
Note 2 The power to make a statutory instrument (including a
notifiable instrument) includes power to make different provisions in relation
to different matters or different classes of matters, and provisions that apply
differently by reference to stated exceptions or factors (see Legislation Act, s
48).
(4) The authority must also give a copy of the notice to each licence
holder who is affected by it.
(5) The notice expires on the date (not later than 12 months after the day
it is notified under the Legislation Act) stated in the notice.
(6) A person commits an offence if the person engages in conduct that
contravenes a prohibition or restriction under a notice under this
section.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
72 Direction
to modify or remove water structure
(1) The Minister may give the owner or occupier of land where a water
structure is located a written direction to modify or remove the structure to
allow water to pass over, under or through it.
(2) A person commits an offence if the person engages in conduct that
contravenes a direction given to the person under this section.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
73 Direction
to rectify effect of unauthorised activity etc
(1) This section applies if a person has—
(a) done bore work or waterway work that is not authorised under a
licence; or
(b) contravened a condition of a licence issued under this Act.
(2) The authority may give the owner or occupier of the land where the
work was done or the contravention happened a written direction to
take—
(a) stated action to rectify the effect of the work or contravention; and
(b) any other stated action the authority considers appropriate.
(3) The direction may state a period within which the person must comply
with the direction.
(4) A person commits an offence if the person engages in conduct that
contravenes a direction given to the person under this section.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
74 Direction
to prevent or rectify damage to bed or bank of waterway
(1) It is the duty of the owner or occupier of land on which there is a
waterway or that adjoins a waterway to take reasonable steps to prevent damage
to the bed or banks of the waterway.
(2) If the authority is satisfied that the owner or occupier of land has
failed to carry out the duty, the authority may give the owner or occupier a
written direction to take stated action the authority considers
appropriate—
(a) to prevent damage mentioned in subsection (1); and
(b) to rectify any damage that has already happened.
(3) The direction may state a period within which the person must comply
with the direction.
(4) A person commits an offence if the person engages in conduct that
contravenes a direction given to the person under this section.
Maximum penalty: 100 penalty units.
(5) In this section:
damage does not include—
(a) damage caused in the normal course of an activity authorised under
this Act; or
(b) damage of a minor nature.
75 Directions
in relation to unlicensed taking of surface water
(1) This section applies if the authority is satisfied that a person who
does not have a licence to take water from a waterway—
(a) has taken or is taking water from the waterway; or
(b) has pumping equipment in or near the waterway that may be used to take
water from the waterway.
(2) The authority may give the person a written direction to do 1 or more
of the following:
(a) not take the water;
(b) stop taking the water;
(c) not use the pumping equipment;
(d) stop using the pumping equipment;
(e) remove the pumping equipment from the waterway.
(3) A person commits an offence if the person contravenes a direction
given to the person under this section.
Maximum penalty: 50 penalty units.
76 Directions
in relation to bores
(1) This section applies if the authority is satisfied that something done
or not done in relation to a bore may result, directly or indirectly, in the
pollution or deterioration, inequitable distribution, loss, wastage or undue
depletion of water, or unlicensed taking of water.
(2) The authority may give the owner or occupier of the land where the
bore is located a written direction to do 1 or more of the following:
(a) shut off the supply of ground water from the bore in the way stated in
the direction;
(b) restrict or limit the amount of water taken from the bore to the
extent stated in the direction;
(c) install and maintain a suitable meter to record the amount of water
taken or discharged from the bore;
(d) discontinue the use of the bore;
(e) close, or partly or completely plug, seal off or backfill the bore in
the way stated in the direction;
(f) use the water taken from the bore for the purpose stated in the
direction;
(g) do any other stated thing necessary for the protection of ground water
or an aquifer.
(3) The direction may state a period within which the person must comply
with the direction.
(4) A person commits an offence if the person engages in conduct that
contravenes a direction given to the person under this section.
Maximum penalty: 50 penalty units.
(5) An offence against this section is a strict liability
offence.
77 Action
by authority if notice or direction contravened
(1) This section applies if the authority has reasonable grounds for
believing that a person has engaged in conduct that contravened—
(a) a prohibition or restriction under a notice given to the person under
section 71; or
(b) a direction given to the person under this part.
(2) An authorised officer, or someone else authorised by the authority for
this section, may—
(a) enter the relevant land and take any action stated in the notice or
direction; and
(b) do anything else necessary to give effect to the notice or
direction.
(3) A person who enters land under this section is not authorised to
remain on the land if, on request by the occupier of the land, the person does
not produce—
(a) for an authorised officer—the officer’s identity card;
or
(b) in any other case—a certificate signed by the authority for this
section that the person is authorised to carry out an activity mentioned in the
certificate.
(4) The reasonable costs incurred by the authority in taking action under
this section are a debt owing to the Territory by the person to whom the notice
or direction was given.
In this part:
connected—a thing is connected with an
offence if—
(a) the offence has been committed in relation to it; or
(b) it will provide evidence of the commission of the offence;
or
(c) it was used, is being used, or is intended to be used, to commit the
offence.
occupier, of premises, includes—
(a) a person believed, on reasonable grounds, to be an occupier of the
premises; and
(b) a person apparently in charge of the premises.
offence includes an offence that there are reasonable grounds
for believing has been, is being, or will be, committed.
premises includes land.
Division
10.2 Powers of authorised
officers
79 Power
to enter premises
(1) For this Act, an authorised officer may—
(a) at any reasonable time, enter premises to which a licence relates to
carry out an inspection authorised under the licence; or
(b) at any reasonable time, enter premises where a bore is located to
inspect the bore and take samples from it; or
(c) at any time, enter premises with the occupier’s consent;
or
(d) enter premises in accordance with a search warrant.
(2) However, subsection (1) (a) does not authorise entry into a part of
premises that is being used for residential purposes.
(3) An authorised officer may, without the consent of the occupier of
premises, enter land around the premises to ask for consent to enter the
premises.
(4) To remove any doubt, an authorised officer may enter premises under
subsection (1) without payment of an entry fee or other charge.
80 Production
of identity card
An authorised officer must not remain at premises entered under this part
if the authorised officer does not produce the officer’s identity card
when asked by the occupier.
(1) When seeking the consent of an occupier of premises to enter premises
under section 79 (1) (c), an authorised officer must—
(a) produce the officer’s identity card; and
(b) tell the occupier—
(i) the reason for the entry; and
(ii) that anything found and seized under this part may be used in
evidence in court; and
(iii) that consent may be refused.
(2) If the occupier consents, the authorised officer must ask the occupier
to sign a written acknowledgment (an acknowledgement of
consent)—
(a) that the occupier was told—
(i) the reason for the entry; and
(ii) that anything found and seized under this part may be used in
evidence in court; and
(iii) that consent may be refused; and
(b) that the occupier consented to the entry; and
(c) stating the time and date when consent was given.
(3) If the occupier signs an acknowledgment of consent, the authorised
officer must immediately give a copy to the occupier.
(4) A court must find that the occupier did not consent to entry to the
premises by the authorised officer under this part if—
(a) the question arises in a proceeding in the court whether the occupier
consented to the entry; and
(b) an acknowledgment of consent is not produced in evidence;
and
(c) it is not proved that the occupier consented to the entry.
82 General
powers on entry to premises
(1) An authorised officer who enters premises under this part may, for
this Act, do 1 or more of the following in relation to the premises or anything
on the premises:
(a) inspect or examine;
(b) take measurements or conduct tests;
(c) take samples;
(d) take photographs, films, or audio, video or other
recordings;
(e) require the occupier, or anyone at the premises, to give the
authorised officer reasonable assistance to exercise a power under this
part.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against self incrimination and client legal
privilege.
(2) A person must take all reasonable steps to comply with a requirement
made of the person under subsection (1) (e).
Maximum penalty: 50 penalty units.
(1) An authorised officer who enters premises under this part with the
occupier’s consent may seize anything at the premises if—
(a) the authorised officer is satisfied, on reasonable grounds, that the
thing is connected with an offence against this Act; and
(b) seizure of the thing is consistent with the purpose of the entry told
to the occupier when seeking the occupier’s consent.
(2) An authorised officer who enters premises under a warrant under this
part may seize anything at the premises that the authorised officer is
authorised to seize under the warrant.
(3) An authorised officer who enters premises under this part (whether
with the occupier’s consent, under a warrant or otherwise) may seize
anything at the premises if satisfied, on reasonable grounds,
that—
(a) the thing is connected with an offence against this Act; and
(b) the seizure is necessary to prevent the thing from
being—
(i) concealed, lost or destroyed; or
(ii) used to commit, continue or repeat the offence.
(4) Also, an authorised officer who enters premises under this part
(whether with the consent of a person in charge of the premises, under a warrant
or otherwise) may seize anything at the premises if satisfied, on reasonable
grounds, that the thing poses a risk to the health or safety of people or of
damage to property or the environment.
(5) The powers of an authorised officer under subsections (3) and (4) are
additional to any powers of the authorised officer under subsections (1)
and (2) or any other territory law.
(6) Having seized a thing, an authorised officer may—
(a) remove the thing from the premises where it was seized (the
place of seizure) to another place; or
(b) leave the thing at the place of seizure but restrict access to
it.
(7) A person commits an offence if the person —
(a) interferes with a seized thing, or anything containing a seized thing,
to which access has been restricted under subsection (6); and
(b) does not have an authorised officer’s approval to interfere with
the thing.
Maximum penalty: 50 penalty units.
84 Power
to require name and address
(1) An authorised officer may require a person to state the person’s
name and home address if the authorised officer believes, on reasonable grounds,
that the person is committing or has just committed an offence against this
Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
(2) The authorised officer must tell the person the reason for the
requirement and, as soon as practicable, record the reason.
(3) The person may ask the authorised officer to produce the
officer’s identity card for inspection by the person.
(4) A person must comply with a requirement made of the person under
subsection (1) if the authorised officer—
(a) tells the person the reason for the requirement; and
(b) complies with any request made by the person under subsection
(3).
Maximum penalty: 10 penalty units.
(5) An offence against this section is a strict liability
offence.
(6) In this section:
home address, of a person, means the address of the place
where the person usually lives.
Division
10.3 Search
warrants
(1) An authorised officer may apply to a magistrate for a warrant to enter
premises.
(2) The application must be sworn and state the grounds on which the
warrant is sought.
(3) The magistrate may refuse to consider the application until the
authorised officer gives the magistrate all the information the magistrate
requires about the application in the way the magistrate requires.
(4) The magistrate may issue a warrant only if satisfied there are
reasonable grounds for suspecting—
(a) there is a particular thing or activity connected with an offence
against this Act; and
(b) the thing or activity—
(i) is, or is being engaged in, at the premises; or
(ii) may be, or may be engaged in, at the premises within the next 7
days.
(5) The warrant must state—
(a) that an authorised officer may, with any necessary assistance and
force, enter the premises and exercise the authorised officer’s powers
under this part; and
(b) the offence for which the warrant is issued; and
(c) the things that may be seized under the warrant; and
(d) the hours when the premises may be entered; and
(e) the date, within 7 days after the day of the warrant’s issue,
the warrant ends.
86 Warrants—application
made other than in person
(1) An authorised officer may apply for a warrant by phone, fax, radio or
other form of communication if the authorised officer considers it necessary
because of—
(a) urgent circumstances; or
(b) other special circumstances.
(2) Before applying for the warrant, the authorised officer must prepare
an application stating the grounds on which the warrant is sought.
(3) The authorised officer may apply for the warrant before the
application is sworn.
(4) After issuing the warrant, the magistrate must immediately fax a copy
to the authorised officer if it is practicable to do so.
(5) If it is not practicable to fax a copy to the authorised
officer—
(a) the magistrate must tell the authorised officer—
(i) the warrant’s terms; and
(ii) the date and time the warrant was issued; and
(b) the authorised officer must complete a form of warrant (the
warrant form) and write on it—
(i) the magistrate’s name; and
(ii) the date and time the magistrate issued the warrant; and
(iii) the warrant’s terms.
(6) The faxed copy of the warrant, or the warrant form properly completed
by the authorised officer, authorises the entry and the exercise of the
authorised officer’s powers under this part.
(7) The authorised officer must, at the first reasonable opportunity, send
to the magistrate—
(a) the sworn application; and
(b) if the authorised officer completed a warrant form—the completed
warrant form.
(8) On receiving the documents, the magistrate must attach them to the
warrant.
(9) A court must find that a power exercised by the authorised officer was
not authorised by a warrant under this section if—
(a) the question arises in a proceeding in the court whether the exercise
of power was authorised by a warrant; and
(b) the warrant is not produced in evidence; and
(c) it is not proved that the exercise of power was authorised by a
warrant under this section.
87 Search
warrants—announcement before entry
(1) An authorised officer must, before anyone enters premises under a
search warrant—
(a) announce that the authorised officer is authorised to enter the
premises; and
(b) give anyone at the premises an opportunity to allow entry to the
premises; and
(c) if the occupier of the premises, or someone else who apparently
represents the occupier, is present at the premises—identify himself or
herself to the person.
(2) The authorised officer is not required to comply with
subsection (1) if the authorised officer believes, on reasonable grounds,
that immediate entry to the premises is required to ensure—
(a) the safety of anyone (including the authorised officer or any person
assisting); or
(b) that the effective execution of the warrant is not
frustrated.
88 Details
of search warrant to be given to occupier etc
If the occupier of premises, or someone else who apparently represents the
occupier, is present at the premises while a search warrant is being executed,
the authorised officer or a person assisting must make available to the
person—
(a) a copy of the warrant; and
(b) a document setting out the rights and obligations of the
person.
89 Occupier
entitled to be present during search etc
(1) If the occupier of premises, or someone else who apparently represents
the occupier, is present at the premises while a search warrant is being
executed, the person is entitled to observe the search being
conducted.
(2) However, the person is not entitled to observe the search
if—
(a) to do so would impede the search; or
(b) the person is under arrest, and allowing the person to observe the
search being conducted would interfere with the objectives of the
search.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
Division
10.4 Return and forfeiture of things
seized
90 Receipt
for things seized
(1) As soon as practicable after an authorised officer seizes a thing
under this part, the authorised officer must give a receipt for it to the person
from whom it was seized.
(2) If, for any reason, it is not practicable to comply with
subsection (1), the authorised officer must leave the receipt, secured
conspicuously, at the place of seizure under section 83 (Power to seize
things).
(3) A receipt under this section must include the following:
(a) a description of the thing seized;
(b) an explanation of why the thing was seized;
(c) the authorised officer’s name, and how to contact the authorised
officer;
(d) if the thing is moved from the premises where it is seized—where
the thing is to be taken.
91 Moving
things to another place for examination or processing under search
warrant
(1) A thing found at premises entered under a search warrant may be moved
to another place for examination or processing to decide whether it may be
seized under the warrant if—
(a) both of the following apply:
(i) there are reasonable grounds for believing that the thing is or
contains something to which the warrant relates;
(ii) it is significantly more practicable to do so having regard to the
timeliness and cost of examining or processing the thing at another place and
the availability of expert assistance; or
(b) the occupier of the premises agrees in writing.
(2) The thing may be moved to another place for examination or processing
for not longer than 72 hours.
(3) An authorised officer may apply to a magistrate for an extension of
time if the authorised officer believes, on reasonable grounds, that the thing
cannot be examined or processed within 72 hours.
(4) The authorised officer must give notice of the application to the
occupier of the premises, and the occupier is entitled to be heard on the
application.
(5) If a thing is moved to another place under this section, the
authorised officer must, if practicable—
(a) tell the occupier of the premises the address of the place where, and
time when, the examination or processing will be carried out; and
(b) allow the occupier or the occupier’s representative to be
present during the examination or processing.
(6) The provisions of this part relating to the issue of search warrants
apply, with any necessary changes, to the giving of an extension under this
section.
92 Access
to things seized
A person who would, apart from the seizure, be entitled to inspect a thing
seized under this part may—
(a) inspect it; and
(b) if it is a document—take extracts from it or make copies of
it.
93 Return
or forfeiture of things seized
(1) A thing seized under this part must be returned to its owner, or
reasonable compensation must be paid by the Territory to the owner for the loss
of the thing, if—
(a) an infringement notice for an offence relating to the thing is not
served on the owner within 90 days after the day of the seizure and a
prosecution for an offence relating to the thing—
(i) is not started within the 90-day period; or
(ii) is started within the 90-day period but the court does not find the
offence proved; or
(b) an infringement notice for an offence relating to the thing is served
on the owner within 90 days after the day of the seizure, the infringement
notice is withdrawn and a prosecution for an offence relating to the
thing—
(i) is not started within the 90-day period; or
(ii) is started within the 90-day period but the court does not find the
offence proved; or
(c) an infringement notice for an offence relating to the thing is served
on the owner and not withdrawn within 90 days after the day of the seizure,
liability for the offence is disputed in accordance with the Magistrates
Court Act 1930, section 132 (Disputing liability for infringement
notice offence) and an information—
(i) is not laid in the Magistrates Court against the person for the
offence within 60 days after the day notice is given under section 132 that
liability is disputed; or
(ii) is laid in the Magistrates Court against the person for the offence
within the 60-day period, but the Magistrates Court does not find the offence
proved.
(2) If anything seized under this part is not required to be returned or
reasonable compensation is not required to be paid under subsection (1),
the thing—
(a) is forfeited to the Territory; and
(b) may be sold, destroyed or otherwise disposed of as the authority
directs.
Part
11 Review of
decisions
Each of the following decisions of the authority is a reviewable
decision:
(a) amending a water access entitlement under section 24;
(b) refusing to approve the transfer of the whole or part of a water
access entitlement under section 26;
(c) refusing to issue a licence to take water under section 30;
(d) imposing a condition on a licence to take water under
section 31;
(e) refusing to issue a driller’s licence under section
35;
(f) imposing a condition on a driller’s licence under section
36;
(g) refusing to issue a bore work licence under section 39;
(h) imposing a condition on a bore work licence under section
40;
(i) refusing to issue a waterway work licence under section 44;
(j) imposing a condition on a waterway work licence under section
45;
(k) refusing to issue a recharge licence under section 49;
(l) imposing a condition on a recharge licence under section 50;
(m) refusing to renew a licence under section 53;
(n) imposing a condition, on or amending an existing condition of, a
licence under section 55;
(o) taking, under section 62, disciplinary action mentioned in section
61 (c), (d), (e) or (f);
(p) giving a direction under section 72 (Direction to modify or remove
water structure);
(q) giving a direction under section 73 (Direction to rectify effect
of unauthorised activity);
(r) giving a direction under section 74 (Direction to prevent or rectify
damage to bed or bank of waterway);
(s) giving a direction under section 75 (Directions in relation to
unlicensed taking of surface water);
(t) giving a direction under section 76 (Directions in relation to
bores).
Application may be made to the AAT for review of a reviewable
decision.
96 Notice
of reviewable decisions
(1) The authority must give notice of a reviewable decision
to—
(a) for a decision mentioned in section 94 (a) or (b)—the holder of
the water access entitlement; or
(b) for a decision mentioned in section 94 (c) to (n)—the applicant
for or the holder of the licence; or
(c) for a decision mentioned in section 94 (o)—the holder of the
water access entitlement, water allocation or licence; or
(d) for a decision mentioned in section 94 (p) to (t)—the person to
whom the direction was given.
(2) The notice must be in accordance with the requirements of the code of
practice in force under the Administrative Appeals Tribunal
Act 1989, section 25B (1).
97 Protection
of officials from liability
(1) In this section:
official means—
(a) the authority; or
(b) anyone else exercising a function under this Act.
(2) An official, or anyone engaging in conduct under the direction of an
official, is not personally liable for conduct engaged in honestly and without
recklessness—
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the conduct was in the exercise of a
function under this Act.
(3) Any civil liability that would, apart from subsection (2), attach
to an official attaches instead to the Territory.
98 Damage
etc to be minimised
(1) In the exercise, or purported exercise, of a function under this Act,
an authorised officer must take all reasonable steps to ensure that the
authorised officer, and any person assisting the authorised officer, causes as
little inconvenience, detriment and damage as practicable.
(2) If an authorised officer, or a person assisting an authorised officer,
damages anything in the exercise or purported exercise of a function under this
Act, the authorised officer must give written notice of the particulars of the
damage to the person the authorised officer believes, on reasonable grounds, is
the owner of the thing.
(3) If the damage happens at premises entered under this Act in the
absence of the occupier, the notice may be given by leaving it, secured
conspicuously, at the premises.
99 Compensation
for exercise of powers
(1) A person may claim compensation from the Territory if the person
suffers loss or expense—
(a) in complying with a notice given to the person under section 72
(Direction to modify or remove water structure); or
(b) because of the exercise, or purported exercise, of a function under
any of the following provisions by an authorised officer, a person assisting an
authorised officer or someone else authorised by the authority:
(i) part 8 (Assessment of water resources);
(ii) section 77 (Action by authority if notice or direction contravened);
(iii) part 10 (Enforcement).
(2) Compensation may be claimed and ordered in a proceeding
for—
(a) compensation brought in a court of competent jurisdiction;
or
(b) an offence against this Act brought against the person making the
claim for compensation.
(3) A court may order the payment of reasonable compensation for the loss
or expense only if satisfied it is just to make the order in the circumstances
of the particular case.
(4) A regulation may prescribe matters that may, must or must not be taken
into account by the court in considering whether it is just to make the
order.
100 Incorporation
of documents
A statutory instrument under this Act may apply, adopt or incorporate an
instrument, as in force from time to time.
Note 1 The text of an applied, adopted or incorporated instrument,
whether applied as in force from time to time or at a particular time, is taken
to be a notifiable instrument (see Legislation Act s 47 (5) and (6)).
However, that requirement does not apply if—
• section 102 is complied with; or
• the operation of the Legislation Act, s 47 (5) or (6) is
otherwise disapplied (see that Act, s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
101 Inspection
of incorporated documents
(1) This section applies to an incorporated document, or an amendment of,
or replacement for, an incorporated document.
Note For the meaning of incorporated document, see the
dictionary.
(2) The authority must ensure that the document, amendment or replacement
is made available for inspection free of charge to the public on business days
at reasonable times at the office of the authority.
(3) In this section:
amendment, of an incorporated document—see section 102
(6).
replacement, for an incorporated document—see section
102 (6).
102 Notification
of certain incorporated documents
(1) This section applies to—
(a) an incorporated document; or
(b) an amendment of, or replacement for, an incorporated
document.
Example of replacement
document
a new edition of the incorporated document
Note 1 For the meaning of incorporated document, see
the dictionary.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The authority may prepare a written notice (an incorporated
document notice) for the incorporated document, amendment or replacement
that contains the following information:
(a) for an incorporated document—details of the document, including
its title, author and date of publication;
(b) for an amendment—the date of publication of the amendment (or of
the document as amended) and a brief summary of the effect of the
amendment;
(c) for a replacement—details of the replacement, including its
title, author and date of publication;
(d) for an incorporated document or any amendment or
replacement—
(i) a date of effect (no earlier than the day after the day of
notification of the notice); and
(ii) details of how access to inspect the document, amendment or
replacement may be obtained under section 101; and
(iii) details of how copies may be obtained, including an indication of
whether there is a cost involved.
(3) An incorporated document notice is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(4) An incorporated document, and any amendment or replacement of an
incorporated document, has no effect under this Act unless—
(a) an incorporated document notice is notified in relation to the
document, amendment or replacement; or
(b) the document, amendment or replacement is notified under the
Legislation Act, section 47 (6).
(5) The Legislation Act, section 47 (7) does not apply in relation to
incorporated documents.
(6) In this section:
amendment, of an incorporated document, includes an amendment
of a replacement for the incorporated document.
replacement, for an incorporated document,
means—
(a) a document that replaces the incorporated document; or
(b) a document (an initial replacement) that replaces a
document mentioned in paragraph (a); or
(c) a document (a further replacement) that replaces an
initial replacement or any further replacement.
103 Evidentiary
certificates
In a prosecution for an offence against this Act, a certificate signed by
the authority that includes any of the following statements is evidence of the
matters stated:
(a) a statement that, at a stated time or during a stated period, a stated
person was or was not the holder of a stated licence;
(b) a statement that, at a stated time or during a stated period, a stated
person was or was not the owner of stated land;
(c) a statement that a stated place is, or is not, a waterway or
bore;
(d) a statement that, at a stated time or during a stated period, there
was or was not, on stated land, a channel or other means (including mechanical
means) by which water could be taken;
(e) a statement that, at a stated time or during a stated period, there
were or were not, at a stated place, works to increase ground water;
(f) a statement that, at a stated time or during a stated period, there
was or was not, a water structure on stated land.
104 Criminal
liability of corporation officers
(1) An officer of a corporation commits an offence if—
(a) the corporation commits an offence (a relevant offence)
by contravening a provision of this Act; and
(b) the officer was reckless about whether the contravention would happen;
and
(c) the officer was in a position to influence the conduct of the
corporation in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the
contravention.
Maximum penalty: The maximum penalty that may be imposed for the
commission of the relevant offence by an individual.
(2) This section applies whether or not the corporation is prosecuted for,
or convicted of, the relevant offence.
(3) In deciding whether the officer took, or failed to take, reasonable
steps to prevent the contravention, a court must have regard to the
following:
(a) any action the officer took directed towards ensuring the following
(to the extent that the action is relevant to the act or omission):
(i) that the corporation arranged regular professional assessments of the
corporation’s compliance with the contravened provision;
(ii) that the corporation implemented any appropriate recommendation
arising from such an assessment;
(iii) that the corporation’s employees, agents and contractors had a
reasonable knowledge and understanding of the requirement to comply with the
contravened provision;
(b) any action the officer took when the officer became aware that the
contravention was, or might be, about to happen.
(4) Subsection (3) does not limit the matters to which the court may have
regard.
(5) This section does not apply if the corporation would have a defence to
a prosecution for the relevant offence.
(6) In this section:
officer, of a corporation, means—
(a) a director or secretary of the corporation; or
(b) a person—
(i) who makes, or takes part in making, decisions that affect all, or a
substantial part, of the business of the corporation; or
(ii) in accordance with whose instructions or wishes the directors of the
corporation are accustomed to act (excluding advice given by the person in the
proper exercise of functions attaching to the person’s professional
capacity or business relationship with the directors or the corporation);
or
(iii) a receiver, or receiver and manager, of the corporation’s
property; or
(c) an administrator of the corporation; or
(d) an administrator of a deed of company arrangement executed by the
corporation; or
(e) a liquidator of the corporation; or
(f) a trustee or other person administering a compromise or arrangement
made between the corporation and someone else.
105 Selfincrimination
etc
(1) This section applies if a person is required to give information or
produce a document under this Act.
(2) The person can not rely on the common law privileges against
selfincrimination and exposure to the imposition of a civil penalty to refuse to
give the information or produce the document.
Note The Legislation Act, s 171 deals
with client legal privilege.
(3) However, any information, document or other thing obtained, directly
or indirectly, because of the giving of the information or producing of the
document, is not admissible in evidence against the person in a criminal
proceeding, other than a proceeding for—
(a) an offence in relation to the failure to give the information or
produce the document; or
(b) any offence in relation to the falsity or the misleading nature of the
information or document.
If a fee payable in relation to a water access entitlement or licence is
not paid before the end of 30 days after the day it is payable, the authority
may—
(a) suspend the entitlement or licence until the fee is paid; or
(b) cancel the entitlement or licence.
107 Determination
of fees
(1) The Minister may determine fees for this Act.
Note The Legislation Act contains provisions about the making
of determinations and regulations relating to fees (see pt 6.3).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and
presented to the Legislative Assembly, under the Legislation Act.
(1) The authority may approve forms for this Act.
(2) If the authority approves a form for a particular purpose, the
approved form must be used for that purpose.
Note For other provisions about forms, see the Legislation Act, s
255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the
Legislation Act.
109 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the
Legislative Assembly, under the Legislation Act.
(2) A regulation may apply, adopt or incorporate an instrument as in force
from time to time.
Note 1 The text of an applied, adopted or incorporated instrument,
whether applied as in force from time to time or as at a particular time, is
taken to be a notifiable instrument if the operation of the Legislation Act,
s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
(3) A regulation may create offences and fix maximum penalties of not more
than 10 penalty units for the offences.
Part
13 Surviving
allocations
110 Survival
of allocations
A water allocation in force under the repealed Act immediately before the
commencement day (a surviving allocation) continues in force
subject to this Act.
111 Surviving
allocations—surrender generally
(1) A surviving allocation can not be transferred or amended but, subject
to section 112 and section 113, may be surrendered to the authority at any
time.
(2) If a person who holds a surviving allocation surrenders it to the
authority, the person may request that a water access entitlement be granted to
the person.
(3) On request under subsection (2), the authority must grant to the
person—
(a) if the surrendered allocation was for surface water
only—a water access entitlement for surface water; or
(b) if the surrendered allocation was for ground water
only—a water access entitlement for ground water; or
(c) if the surrendered allocation was partly for surface water and partly
for ground water (a mixed allocation)—a water access
entitlement for surface water and a water access entitlement for ground
water.
(4) A water access entitlement granted to a person under subsection (3)
must state—
(a) the person’s name; and
(b) the amount of surface water or ground water that may be taken;
and
(c) the water management area to which the amount relates; and
(d) if the person does not have access to urban water supply and the
surrendered allocation was for water for stock or domestic use—
(i) that the water is for stock or domestic use; and
(ii) the place where the water may be taken; and
(e) if no fee was paid under the repealed Act for the grant of the
surrendered allocation—the place where the water may be taken; and
Note For removal of this statement, see
s 25.
(f) anything else required under this Act to be stated in the water access
entitlement.
(5) For subsection (4) (b), the amount stated must
be—
(a) if a fee was paid under the repealed Act for the grant of the
surrendered allocation—the percentage of the water available for taking in
the water management area that is equivalent to the volume of the allocation
(or, for a mixed allocation, the relevant part of the allocation); and
(b) if no fee was paid under the repealed Act for the grant of the
surrendered allocation—the percentage of the water available for taking in
the water management area that is equivalent to the lesser of—
(i) the volume of the allocation (or, for a mixed allocation, the relevant
part of the allocation); and
(ii) the amount that, under the determination in force under
section 18 (Amounts of water reasonable for uses), is a reasonable amount
for the existing use.
112 Surviving
allocations—surrender by water utility
(1) This section applies to a surviving allocation held by a water
utility.
(2) The utility may surrender the allocation to the authority and request
a water access entitlement under section 111 before the end of
6 months after the commencement day.
(3) If the utility does not surrender the allocation to the authority
before the end of that 6-month period, the allocation is taken to be surrendered
to the authority and the authority must grant a water access entitlement to the
utility under section 111.
113 Surviving
allocations—surrender by holder no longer owner or occupier of
land
(1) This section applies to the holder of a surviving allocation (other
than a water utility) if the holder is not the owner or occupier of the land to
which the allocation relates.
(2) The holder may surrender the allocation to the authority and request a
water access entitlement under section 111 before the end of the later
of—
(a) 6 months after the day the person ceases to be the owner or occupier
of the land; and
(b) 6 months after the commencement day.
(3) If the holder does not surrender the allocation to the authority
before the end of that 6-month period, the allocation is taken to be surrendered
to the authority and the holder must not be granted a water access entitlement
under section 111 in relation to the allocation.
200 Environmental
flow guidelines
(1) The environmental flow guidelines in force under the repealed Act are
taken to be environmental flow guidelines under this Act, section 12
(Environmental flow guidelines) and apply, with any necessary changes, for this
Act.
(2) To remove any doubt and without limiting subsection (1), the
environmental flow guidelines mentioned in subsection (1) may be amended or
repealed as if they had been approved under this Act, section 12.
(3) To remove any doubt, the environmental flow guidelines mentioned in
subsection (1) are taken—
(a) to have been notified under the Legislation Act on the day this Act is
notified; and
(b) to have commenced on the commencement day; and
(c) not to be required to be presented to the Legislative Assembly under
the Legislation Act, section 64 (1).
(4) Subsections (1), (2) and (3) are laws to which the Legislation Act,
section 88 (Repeal does not end effect of transitional laws etc)
applies.
201 Existing
licences and permits
(1) A licence in force under the repealed Act, section 35 (Licence to take
water) is taken to be a licence to take water under this Act, section
30.
(2) A licence in force under the repealed Act, section 39 (Unlicensed
drilling) is taken to be a driller’s licence under this Act, section
35.
(3) A permit in force under the repealed Act, section 44 (Bore
construction permit) is taken to be a bore work licence under this Act,
section 39.
(4) A licence in force under the repealed Act, section 47 (Unlicensed
recharge) is taken to be a recharge licence under this Act,
section 49.
(5) A permit in force under the repealed Act, section 69 (Water control
structures—permit to construct etc) is taken to be a waterway work licence
under this Act, section 44.
(6) Any condition to which the licence or permit was subject under the
repealed Act continues to apply but may be amended in accordance with this
Act.
(7) This section is a law to which the Legislation Act, section 88 (Repeal
does not end effect of transitional laws etc) applies.
202 Water
access entitlement for certain existing licence holders
(1) This section applies to a person who—
(a) was the holder of a licence to take ground water in force under the
repealed Act, section 35; but
(b) did not have a water allocation under that Act on which to base the
taking of ground water under the licence.
(2) The authority must grant a water access entitlement to the person for
a percentage of the ground water available in the relevant water management area
that is equivalent to the lesser of—
(a) the amount of ground water the person could take under the licence;
and
(b) the amount that, under the determination in force under
section 18 (Amounts of water reasonable for uses), is a reasonable amount
for the existing use.
(3) The water access entitlement must state—
(a) the person’s name; and
(b) the amount of ground water that may be taken; and
(c) the water management area to which the amount relates; and
(d) the place where the water may be taken; and
Note For removal of this statement, see
s 25.
(e) if the person does not have access to urban water supply and the
entitlement is for water for stock or domestic use—that the water is for
stock or domestic use; and
(f) anything else required under this Act to be stated in the water access
entitlement.
203 Information
on register
(1) The authority may include on the register under this Act any
information held on the register under the repealed Act.
(2) This section is a law to which the Legislation Act, section 88 (Repeal
does not end effect of transitional laws etc) applies.
204 References
to Planning and Development Act
(1) A reference in this Act to the Planning and Development Act
2007 includes a reference to the Land (Planning and Environment)
Act 1991.
(2) A reference in this Act to the Planning and Development Act
2007, chapter 7 (Development approvals) includes a reference to the Land
(Planning and Environment) Act 1991, part 6 (Approvals and
orders).
205 Transitional
regulations
(1) A regulation may prescribe transitional matters necessary or
convenient to be prescribed because of the enactment of this Act.
(2) A regulation may modify part 13 or this part to make provision in
relation to anything that, in the Executive’s opinion, is not, or is not
adequately or appropriately, dealt with in either part.
(3) A regulation under subsection (2) has effect despite anything
elsewhere in this Act.
This part expires 1 year after the commencement day.
Part
21 Repeals and consequential
amendments
(1) The Water Resources Act 1998 A1998-63 is repealed.
(2) The following legislative instruments are repealed:
(a) the Water Resources Regulation 2006 SL2006-14;
(b) the Water Resources (Fees) Determination 2006 (No 1)
DI2006-138;
(c) the Water Resources Management Plan 2004 DI2004-66;
(d) all notifiable instruments under the Water Resources Act
1998.
208 Administrative
Decisions (Judicial Review) Act
1989Schedule 1, item
18
omit
209 Gunghalin
Drive Extension Authorisation Regulation
2004Section 4 (e)
substitute
(e) the Water Resources Act 2007.
210 Land
(Planning and Environment) Regulation
1992Schedule 1, item 3
(d)
after
Water Resources Act 1998
insert
or the Water Resources Act 2007
211 Utilities
Act 2000Section
20 (2) (l)
substitute
(l) the Water Resources Act 2007.
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• environment protection authority
• function
• infringement notice.
aquifer means a geological formation or structure, or an
artificial landfill, permeated or capable of being permeated (whether
permanently or intermittently) with water.
authorised officer means an authorised officer under the
Environment Protection Act 1997, section 14 (3).
authority means the environment protection
authority.
bore means a bore, hole, well, excavation or other opening in
the ground or an underground cavity (whether occurring naturally or having been
artificially constructed or modified)—
(a) that is used, or is capable of being used, to intercept or collect
ground water; or
(b) from which ground water is, or is capable of being, obtained or used;
or
(c) that is used, or is capable of being used, for the disposal of water
or waste below the surface of the ground; or
(d) that extends into an aquifer.
bore work means any of the following:
(a) drilling, constructing, altering, plugging, backfilling or sealing off
a bore;
(b) removing, replacing, altering, slotting or repairing the casing,
lining or screen of a bore;
(c) deepening a bore (in the course of construction or
otherwise).
bore work licence means a licence under section 39.
commencement day means the day this Act commences.
connected with an offence, for part 10
(Enforcement)—see section 78.
corresponding water access entitlement—see section
27.
disciplinary action—see section 61.
disciplinary notice—see section 62.
driller’s licence means a licence under section
35.
engage in conduct means—
(a) do an act; or
(b) omit to do an act.
environmental flow guidelines means environmental flow
guidelines under section 12.
environmental record, of a person, means the person’s
environmental record both in the ACT and elsewhere so far as it relates to
water, and includes any action taken in relation to the person
under—
(a) this Act or the repealed Act; or
(b) a licence issued under this Act or the repealed Act; or
(c) a law of the Commonwealth, a State or another Territory that relates
to water.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
flow, in relation to surface water and ground water, includes
the discharge, release, escape or passage of the water.
ground, for disciplinary action—see section
60.
ground water—see section 9.
incorporated document means an instrument applied, adopted or
incorporated by a statutory instrument under this Act.
land includes a building or structure on land.
licence means a licence under this Act.
licence to take water means a licence under section
30.
occupier, of premises, for part 10 (Enforcement)—see
section 78.
offence, for part 10 (Enforcement)—see
section 78.
owner, of land, includes the lessee of the land.
premises, for part 10 (Enforcement)—see
section 78.
recharge licence means a licence under section 49.
register means the register under section 66.
repealed Act means the Water Resources Act
1998.
Note A reference to a repealed Act is a reference to the Act as in
force immediately before it was repealed (see Legislation Act,
s 103).
reviewable decision—see section 94.
stock or domestic use of water by a person means 1 or more of
the following:
(a) use for the person, or the person’s family or employees, for
domestic purposes;
(b) use for drinking water for stock—
(i) not exceeding the number of stock normally depastured on the relevant
land having regard to seasonal fluctuations in the carrying capacity of the
land; and
(ii) not held in close concentration for a purpose other than grazing;
(c) use for irrigating a garden, not larger than 2 hectares, that is for
domestic use and not for the sale, barter or exchange of goods produced in the
garden.
surface water—see section 8.
surviving allocation—see section 110.
take water—see section 11.
urban residential property means any of the following, within
the meaning of the Territory plan, that has access to urban water
supply:
(a) single dwelling housing;
(b) multi-unit housing;
(c) a boarding house;
(d) a guest house.
urban water supply means water supplied by a water utility,
other than treated sewage.
water means surface water or ground water, and includes water
that contains impurities.
water access entitlement—see section 19.
water management areas—see section 16.
water structure—see section 41.
water utility means a utility licensed under the Utilities
Act 2000 to provide a water service.
waterway—see section 10.
waterway work—see section 41.
waterway work licence means a licence under section
44.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2007.
2 Notification
Notified under the Legislation Act on 2007.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2007
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