Water Legislation (Amendment) Act 2003

Victorian Legislation and Parliamentary Documents i Water Legislation (Amendment) Act 2003 Act No. 90/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2—AMENDMENT OF WATER ACT 1989 3 3. Jurisdiction of Tribunal 3 4. New penalties 3 5. By-laws 3 6. New sections 170A to 170G inserted 4 170A. Preparation and adoption of permanent water saving plan 4 170B. Variation of plan 6 170C. Major deviations from plan 7 170D. Copy of plan 8 170E. Implementation of plan 8 170F. Contravention of plan 9 170G. Inconsistency 10 7. Prosecutions 10 PART 3—AMENDMENT OF WATER INDUSTRY ACT 1994 11 8. Jurisdiction of Tribunal 11 9. Contravention of plan 11 10. New Division 1B inserted in Part 3 12 Division 1B—Permanent water saving plan 12 78I. Application of this Division 12 78J. Preparation and adoption of plan 12 78K. Variation of plan 13 78L. Major deviations from plan 15 78M. Copy of plan 15 78N. Implementation of plan 16 78O. Contravention of plan 17 78P. Inconsistency 17 11. Prosecutions 18 -- 1 of 22 -- Victorian Legislation and Parliamentary Documents Section Page ii PART 4—STATUTE LAW REVISION 19 12. Amendment to Water Act 1989 19 13. Amendments to Water Industry Act 1994 19 ═══════════════ ENDNOTES 20 -- 2 of 22 -- Victorian Legislation and Parliamentary Documents 1 Water Legislation (Amendment) Act 2003† [Assented to 11 November 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The main purpose of this Act is to amend the Water Act 1989 and the Water Industry Act 1994 to provide for permanent water saving plans and increase the penalties for certain offences relating to the use of water. Victoria No. 90 of 2003 -- 3 of 22 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Water Legislation (Amendment) Act 2003 Act No. 90/2003 2 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. __________________ s. 2 -- 4 of 22 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of Water Act 1989 Water Legislation (Amendment) Act 2003 Act No. 90/2003 3 PART 2—AMENDMENT OF WATER ACT 1989 3. Jurisdiction of Tribunal (1) After section 19(3)(a) of the Water Act 1989 insert— "(ab) may make an order for payment of a sum of money awarding damages in the nature of interest; or". (2) After section 19(3A) of the Water Act 1989 insert— "(4) In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate that it considers appropriate.". 4. New penalties (1) For the penalty set out at the foot of sections 63(1), 63(1A), 288(1) and 289(1) of the Water Act 1989 substitute— "Penalty: For a first offence, 60 penalty units or imprisonment for 6 months. For a subsequent offence, 120 penalty units or imprisonment for 12 months.". (2) In sections 63(2), 288(2) and 289(2) of the Water Act 1989, after "continues" insert "(up to a maximum of 20 additional penalty units)". 5. By-laws At the end of section 171 of the Water Act 1989 insert— "(2) A penalty imposed for a contravention of a by-law made under sub-section (1)(a) must not exceed— s. 3 See: Act No. 80/1989. Reprint No. 6 as at 4 April 2002 and amending Act Nos 5/2002, 11/2002, 23/2002, 48/2002 and 48/2003. LawToday: www.dms. dpc.vic. gov.au -- 5 of 22 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of Water Act 1989 Water Legislation (Amendment) Act 2003 Act No. 90/2003 4 (a) for a first offence, 40 penalty units or imprisonment for 3 months; and (b) for a subsequent offence, 80 penalty units or imprisonment for 6 months— and, in the case of a continuing contravention, an additional penalty not exceeding 5 penalty units for each day on which the offence continues (up to a maximum of 20 additional penalty units)— (c) after service of a notice of contravention on the person under section 151; or (d) if no notice of contravention is served, after conviction of the person for the offence.". 6. New sections 170A to 170G inserted After section 170 of the Water Act 1989 insert— "170A. Preparation and adoption of permanent water saving plan (1) An Authority must prepare a permanent water saving plan and submit that plan to the Minister for approval on or before the date specified by the Minister. (2) The Minister may, by notice served on the Authority, give directions or issue guidelines concerning the form of, and the information to be contained in, such a plan. (3) In preparing a plan, an Authority must— (a) comply with any written directions; and (b) have regard to any written guidelines— given or issued by the Minister under sub- section (2). s. 6 -- 6 of 22 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of Water Act 1989 Water Legislation (Amendment) Act 2003 Act No. 90/2003 5 (4) Without limiting sub-section (2), a plan must contain a Schedule setting out restrictions or prohibitions on the use of water in any area, or a specified part of any area, in respect of which the Authority has the function of providing a water supply system. (5) Without limiting sub-section (4), a restriction may require a use of water to be approved by a specified person or a specified class of person. (6) Before submitting a plan to the Minister under sub-section (1), an Authority must ensure that a notice in accordance with sub- section (7) is published in the Government Gazette and a newspaper circulating generally in any area capable of being affected by the plan. (7) A notice must— (a) summarise the restrictions and prohibitions proposed by the plan; (b) specify where a copy of the proposed plan can be obtained; (c) invite public comments or submissions within such time (being not less than 28 days from the latest day on which the notice is published under sub- section (6)) as is specified in the notice. (8) An Authority must ensure that all comments and submissions received before the date specified in the notice in response to the notice are considered, and any variations to the proposed plan that the Authority thinks fit are made, before the proposed plan is submitted to the Minister under sub- section (1). s. 6 -- 7 of 22 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of Water Act 1989 Water Legislation (Amendment) Act 2003 Act No. 90/2003 6 (9) An Authority must adopt a plan as approved by the Minister under sub-section (1). 170B. Variation of plan (1) An Authority may at any time, in accordance with this section, make any variations to an adopted permanent water saving plan that it thinks fit. (2) Before making any variation to an adopted plan, an Authority must submit the proposed variation to the Minister for approval. (3) The Minister may at any time, by notice served on the Authority, require an Authority to review a permanent water saving plan and submit a revised plan to the Minister for approval on or before the date specified by the Minister. (4) In preparing a variation to an adopted plan or a revised plan, an Authority must— (a) comply with any written directions; and (b) have regard to any written guidelines— given or issued by the Minister under section 170A(2) concerning the form of, and the information to be contained in, a permanent water saving plan. (5) Except with the approval of the Minister, before submitting a proposed variation or revised plan to the Minister under sub- section (2) or (3), an Authority must ensure that a notice in accordance with sub- section (6) is published in the Government Gazette and a newspaper circulating generally in any area capable of being affected by the proposed variation or revised plan. s. 6 -- 8 of 22 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of Water Act 1989 Water Legislation (Amendment) Act 2003 Act No. 90/2003 7 (6) A notice must— (a) summarise the proposed variation or revised plan; (b) specify where a copy of the proposed variation or revised plan can be obtained; (c) invite public comments or submissions within such time (being not less than 28 days from the latest day on which the notice is published under sub- section (5)) as is specified in the notice. (7) An Authority must ensure that all comments and submissions received before the date specified in the notice in response to the notice are considered, and any changes to the proposed variation or changes to the proposed revised plan that the licensee thinks fit are made, before the proposed variation or revised plan is submitted to the Minister under sub-section (2) or (3). (8) An Authority must vary a permanent water saving plan, or adopt a revised permanent water saving plan, as approved by the Minister under sub-section (2) or (3). 170C. Major deviations from plan (1) An Authority must not make a major deviation from a permanent water saving plan. (2) The Minister may issue guidelines as to what are major deviations for the purposes of sub- section (1). s. 6 -- 9 of 22 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of Water Act 1989 Water Legislation (Amendment) Act 2003 Act No. 90/2003 8 170D. Copy of plan (1) The permanent water saving plan of an Authority at any time is that plan adopted in accordance with section 170A or 170B(8), as varied under section 170B at that time. (2) An Authority must ensure that an up to date copy of its permanent water saving plan is available at its offices during business hours for inspection on request. 170E. Implementation of plan (1) An Authority must implement immediately— (a) a permanent water saving plan adopted by the Authority in accordance with section 170A or 170B(8); (b) a variation to an adopted permanent water saving plan referred to in paragraph (a). (2) Implementation involving the imposition or removal of restrictions or prohibitions on the use of water in an area may be effected by the Authority publishing a notice in the Government Gazette and a newspaper circulating generally in the area specifying— (a) the restrictions or prohibitions imposed or being substituted or removed; and (b) the area to which they apply or applied; and (c) the time from which they apply or cease to apply, not being earlier than the latest day on which the notice is published. s. 6 -- 10 of 22 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of Water Act 1989 Water Legislation (Amendment) Act 2003 Act No. 90/2003 9 (3) A person cannot be convicted of an offence against section 170F in respect of a contravention of a restriction or prohibition on the use of water contained in a permanent water saving plan if prior to the relevant time notice of the particular restriction or prohibition had not been published in accordance with sub-section (2). 170F. Contravention of plan (1) A person who receives a supply of water from an Authority must not, after receiving a warning notice from the Authority, contravene a restriction or prohibition on the use of that water contained in a permanent water saving plan of the Authority. Penalty: For a first offence, 10 penalty units; For a subsequent offence, 20 penalty units. (2) A person who is guilty of an offence under sub-section (1) that is of a continuing nature is liable, in addition to the penalty set out at the foot of that sub-section, to a further penalty of not more than 2 penalty units for each day during which the offence continues (up to a maximum of 20 additional penalty units)— (a) after service of a notice of contravention on the person under section 151; or (b) if no notice of contravention is served, after conviction. Note: Section 296(1) sets out who may prosecute an offence under sub-section (1). s. 6 -- 11 of 22 -- Victorian Legislation and Parliamentary Documents Part 2—Amendment of Water Act 1989 Water Legislation (Amendment) Act 2003 Act No. 90/2003 10 170G. Inconsistency (1) If there is an inconsistency between a restriction or prohibition in a by-law and a permanent water saving plan applying to a person who receives a supply of water from an Authority, the person must comply with the restriction or prohibition in the by-law. (2) A restriction or prohibition in a permanent water saving plan is of no effect to the extent of that inconsistency.". 7. Prosecutions (1) After section 296(1)(b) of the Water Act 1989 insert— "(ba) in the case of an offence against section 288(1), 289(1) or 290(1) where the relevant licensee is a licensee referred to in section 17(1) of the Water Industry Act 1994, an employee of the licensee authorised to do so, either generally or in any particular case, by the licensee; or". (2) After section 296(2) of the Water Act 1989 insert— "(3) An employee of a licensee may only be authorised by the licensee under sub- section (1)(ba) if the licensee is satisfied that the employee is appropriately qualified and trained.". __________________ s. 7 -- 12 of 22 -- Victorian Legislation and Parliamentary Documents Part 3—Amendment of Water Industry Act 1994 Water Legislation (Amendment) Act 2003 Act No. 90/2003 11 PART 3—AMENDMENT OF WATER INDUSTRY ACT 1994 8. Jurisdiction of Tribunal (1) After section 74A(2)(b) of the Water Industry Act 1994 insert— "(ba) make an order for payment of a sum of money awarding damages in the nature of interest;". (2) After section 74A(2) of the Water Industry Act 1994 insert— "(2A) In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate that it considers appropriate.". 9. Contravention of plan For the penalty set out at the foot of section 78H of the Water Industry Act 1994 substitute— "Penalty: For a first offence, 40 penalty units or imprisonment for 3 months; For a subsequent offence, 80 penalty units or imprisonment for 6 months; For a continuing offence, an additional penalty of 5 penalty units for each day on which the offence continues (up to a maximum of 20 additional penalty units) after service of a notice of contravention on the person under section 69.". s. 8 See: Act No. 121/1994. Reprint No. 4 as at 14 February 2002 and amending Act Nos 54/2001 and 11/2002. LawToday: www.dms. dpc.vic. gov.au -- 13 of 22 -- Victorian Legislation and Parliamentary Documents Part 3—Amendment of Water Industry Act 1994 Water Legislation (Amendment) Act 2003 Act No. 90/2003 12 10. New Division 1B inserted in Part 3 After Division 1A of Part 3 of the Water Industry Act 1994 insert— "Division 1B—Permanent water saving plan 78I. Application of this Division This Division applies to a licensee who is the holder of a water licence or a water and sewerage licence. 78J. Preparation and adoption of plan (1) A licensee must prepare a permanent water saving plan and submit that plan to the Minister for approval on or before the date specified by the Minister. (2) The Minister may, by notice served on the licensee, give directions or issue guidelines concerning the form of, and the information to be contained in, such a plan. (3) In preparing a plan, a licensee must— (a) comply with any written directions; and (b) have regard to any written guidelines— given or issued by the Minister under sub- section (2). (4) Without limiting sub-section (2), a plan must contain a Schedule setting out restrictions or prohibitions on the use of water in any area, or a specified part of any area, in respect of which the licensee has the function of providing a water supply system. (5) Without limiting sub-section (4), a restriction may require a use of water to be approved by a specified person or a specified class of person. s. 10 -- 14 of 22 -- Victorian Legislation and Parliamentary Documents Part 3—Amendment of Water Industry Act 1994 Water Legislation (Amendment) Act 2003 Act No. 90/2003 13 (6) Before submitting a plan to the Minister under sub-section (1), a licensee must ensure that a notice in accordance with sub- section (7) is published in the Government Gazette and a newspaper circulating generally in any area capable of being affected by the plan. (7) A notice must— (a) summarise the restrictions and prohibitions proposed by the plan; (b) specify where a copy of the proposed plan can be obtained; (c) invite public comments or submissions within such time (being not less than 28 days from the latest day on which the notice is published under sub- section (6)) as is specified in the notice. (8) A licensee must ensure that all comments and submissions received before the date specified in the notice in response to the notice are considered, and any variations to the proposed plan that the licensee thinks fit are made, before the proposed plan is submitted to the Minister under sub- section (1). (9) A licensee must adopt a plan as approved by the Minister under sub-section (1). (10) The Minister must consult with the Treasurer before approving a permanent water saving plan. 78K. Variation of plan (1) A licensee may at any time, in accordance with this section, make any variations to an adopted permanent water saving plan that it thinks fit. s. 10 -- 15 of 22 -- Victorian Legislation and Parliamentary Documents Part 3—Amendment of Water Industry Act 1994 Water Legislation (Amendment) Act 2003 Act No. 90/2003 14 (2) Before making any variation to an adopted plan, a licensee must submit the proposed variation to the Minister for approval. (3) The Minister may at any time, by notice served on the licensee, require a licensee to review a permanent water saving plan and submit a revised plan to the Minister for approval on or before the date specified by the Minister. (4) In preparing a variation to an adopted plan or a revised plan, a licensee must— (a) comply with any written directions; and (b) have regard to any written guidelines— given or issued by the Minister under section 78J(2) concerning the form of, and the information to be contained in, a permanent water saving plan. (5) Except with the approval of the Minister, before submitting a proposed variation or revised plan to the Minister under sub- section (2) or (3), a licensee must ensure that a notice in accordance with sub-section (6) is published in the Government Gazette and a newspaper circulating generally in any area capable of being affected by the proposed variation or revised plan. (6) A notice must— (a) summarise the proposed variation or revised plan; (b) specify where a copy of the proposed variation or revised plan can be obtained; s. 10 -- 16 of 22 -- Victorian Legislation and Parliamentary Documents Part 3—Amendment of Water Industry Act 1994 Water Legislation (Amendment) Act 2003 Act No. 90/2003 15 (c) invite public comments or submissions within such time (being not less than 28 days from the latest day on which the notice is published under sub- section (5)) as is specified in the notice. (7) A licensee must ensure that all comments and submissions received before the date specified in the notice in response to the notice are considered, and any changes to the proposed variation or changes to the proposed revised plan that the licensee thinks fit are made, before the proposed variation or revised plan is submitted to the Minister under sub-section (2) or (3). (8) A licensee must vary a permanent water saving plan, or adopt a revised permanent water saving plan, as approved by the Minister under sub-section (2) or (3). (9) The Minister must consult with the Treasurer before approving— (a) any variation to a permanent water saving plan; or (b) a revised permanent water saving plan. 78L. Major deviations from plan (1) A licensee must not make a major deviation from a permanent water saving plan. (2) The Minister may issue guidelines as to what are major deviations for the purposes of sub- section (1). 78M. Copy of plan (1) The permanent water saving plan of a licensee at any time is that plan adopted in accordance with section 78J or 78K(8), as varied under section 78K at that time. s. 10 -- 17 of 22 -- Victorian Legislation and Parliamentary Documents Part 3—Amendment of Water Industry Act 1994 Water Legislation (Amendment) Act 2003 Act No. 90/2003 16 (2) A licensee must ensure that an up to date copy of its permanent water saving plan is available at its offices during business hours for inspection on request. 78N. Implementation of plan (1) A licensee must implement immediately— (a) a permanent water saving plan adopted by the licensee in accordance with section 78J or 78K(8); (b) a variation to an adopted permanent water saving plan referred to in paragraph (a). (2) Implementation involving the imposition or removal of restrictions or prohibitions on the use of water in an area may be effected by the licensee publishing a notice in the Government Gazette and a newspaper circulating generally in the area specifying— (a) the restrictions or prohibitions imposed or being substituted or removed; and (b) the area to which they apply or applied; and (c) the time from which they apply or cease to apply, not being earlier than the latest day on which the notice is published. (3) A person cannot be convicted of an offence against section 78O in respect of a contravention of a restriction or prohibition on the use of water contained in a permanent water saving plan if prior to the relevant time notice of the particular restriction or prohibition had not been published in accordance with sub-section (2). s. 10 -- 18 of 22 -- Victorian Legislation and Parliamentary Documents Part 3—Amendment of Water Industry Act 1994 Water Legislation (Amendment) Act 2003 Act No. 90/2003 17 78O. Contravention of plan A person who receives a supply of water from a licensee must not, after receiving a warning notice from the licensee, contravene a restriction or prohibition on the use of that water contained in a permanent water saving plan of the licensee. Penalty: For a first offence, 10 penalty units; For a subsequent offence, 20 penalty units; For a continuing offence, an additional penalty of 2 penalty units for each day on which the offence continues (up to a maximum of 20 additional penalty units) after service of a notice of contravention on the person under section 69. 78P. Inconsistency (1) If there is an inconsistency between a restriction or prohibition in— (a) a drought response plan and a permanent water saving plan; or (b) an emergency management plan and a permanent water saving plan— applying to a person who receives a supply of water from a licensee, the person must comply with the restriction or prohibition in the drought response plan or emergency management plan. (2) A restriction or prohibition in a permanent water saving plan is of no effect to the extent of that inconsistency.". s. 10 -- 19 of 22 -- Victorian Legislation and Parliamentary Documents Part 3—Amendment of Water Industry Act 1994 Water Legislation (Amendment) Act 2003 Act No. 90/2003 18 11. Prosecutions (1) After section 179(1)(a) of the Water Industry Act 1994 insert— "(ab) in the case of an offence against section 78H or 78O, where the licensee responsible for the implementation of the relevant plan is a licensee referred to in section 17(1), an employee of the licensee authorised to do so, either generally or in any particular case, by the licensee; or". (2) After section 179(2) of the Water Industry Act 1994 insert— "(3) An employee of a licensee may only be authorised by a licensee under sub- section (1)(ab) if the licensee is satisfied that the employee is appropriately qualified and trained.". __________________ s. 11 -- 20 of 22 -- Victorian Legislation and Parliamentary Documents Part 4—Statute Law Revision Water Legislation (Amendment) Act 2003 Act No. 90/2003 19 PART 4—STATUTE LAW REVISION 12. Amendment to Water Act 1989 Section 295(1)(g) of the Water Act 1989 is repealed. 13. Amendments to Water Industry Act 1994 (1) In section 3 of the Water Industry Act 1994 insert the following definition— ' "Tribunal" means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;'. (2) In sections 30(3), 63(7), 65(5), 67(8), 74(4)(e), 84(3) and 86(4) of the Water Industry Act 1994, for "Administrative Appeals Tribunal" substitute "Tribunal". (3) In section 10(3)(b) of the Water Industry Act 1994 for "the Office" substitute "the Commission". ═══════════════ s. 12 -- 21 of 22 -- Victorian Legislation and Parliamentary Documents Water Legislation (Amendment) Act 2003 Act No. 90/2003 20 ENDNOTES † Minister's second reading speech— Legislative Assembly: 17 September 2003 Legislative Council: 28 October 2003 The long title for the Bill for this Act was "to amend the Water Act 1989 and the Water Industry Act 1994 and for other purposes." Endnotes -- 22 of 22 --