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Water Legislation Amendment Bill 2015
Water Legislation Amendment Bill 2015
Explanatory Notes
Short title
The short title of the Bill is the Water Legislation Amendment Bill 2015.
Policy objectives and the reasons for them
Alignment of the Water Reform and Other Legislation Amendment Act
2014 with Government policy
The objectives of the amendments to the Water Reform and Other Legislation
Amendment Act 2014 are to:
• align Water Reform and Other Legislation Amendment Act 2014 provisions with
Government policy and election commitments
• ensure provisions for water planning instruments appropriately transition existing
instruments and processes into the new water planning framework and that the
new framework can operate effectively.
The Water Reform and Other Legislation Amendment Act 2014 was passed by the
previous Queensland Parliament on 26 November 2014. A number of changes were
included in the Water Reform and Other Legislation Amendment Act 2014, which
were not supported by the current Government when in opposition. These changes
included a new purpose of the Water Act 2000 (Water Act) which does not include
the principles of ecologically sustainable development and the introduction of a water
development option for large-scale water infrastructure projects. These provisions
have not commenced.
The Government's election commitments relating to the Water Reform and Other
Legislation Amendment Act 2014 include:
• act immediately to prevent the commencement of the Newman Government's
water laws which will have a detrimental effect on the Great Barrier Reef
catchment systems and allow for over allocation of Queensland's precious water
resources
• return ecologically sustainable development principles to the Water Act and
remove water development options in their entirety.
The proposed amendments to the Water Reform and Other Legislation Amendment
Act 2014 deliver on these commitments by including ecologically sustainable
development principles in the purpose of the Water Act, removing the water
development option provisions in their entirety and removing provisions to establish
designated watercourses.
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Water Legislation Amendment Bill 2015
Amendments to some transitional provisions of the Water Reform and Other
Legislation Amendment Act 2014 are needed to ensure the clear transition of all
existing water planning instruments and processes into the new water planning
framework under the Water Reform and Other Legislation Amendment Act 2014,
which has not commenced. A number of miscellaneous amendments are also
necessary to enable the smooth implementation and operation of the Water Reform
and Other Legislation Amendment Act 2014.
Lower Herbert Water Management Authority validation
An amendment to the Water Act is necessary to provide that the amalgamation of
four Category 2 Water Authorities to form the Lower Herbert Water Management
Authority under the Water Regulation 2002 (Water Regulation) in 2005 is taken to
have had effect as intended from when the amendment to the Water Regulation
commenced. The amendments also ensure the validity of the actions of the Authority
since its establishment.
River Improvement Trust Act 1940 amendments
Amending the River Improvement Trust Act 1940 will clarify provisions relating to the
establishment and membership of river improvement trusts (trusts), and will clarify
the powers and obligations of trusts in relation to the undertaking and maintenance
of works.
Achievement of policy objectives
Alignment of Water Reform and Other Legislation Amendment Act 2014
provisions with Government policy
To achieve its objective in relation to aligning the Water Reform and Other
Legislation Amendment Act 2014 provisions with Government policy, the Bill:
• includes the principles of ecologically sustainable development in the purpose of
the Water Act
• omits the water development option
• omits provisions that allow for designated watercourses.
Additionally the Bill makes minor amendments to ensure new provisions of the Water
Act will operate effectively and to ensure existing water planning instruments and
processes are appropriately transitioned into the water planning framework. Further
detail is provided as follows.
Including the principles of ecologically sustainable development in the new
purpose of the Water Act in relation to sustainable management
The new purpose of the Water Act under the Water Reform and Other Legislation
Amendment Act 2014 does not expressly include the principles of ecologically
sustainable development.
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Water Legislation Amendment Bill 2015
To address this, the purpose of the Water Act, contained in the Water Reform and
Other Legislation Amendment Act 2014, will be amended to include the principles of
ecologically sustainable development in describing 'sustainable management'.
The term "responsible and productive management" is replaced with "sustainable
management" by the Bill throughout the Water Reform and Other Legislation
Amendment Act 2014 for consistency with the revised new purpose.
Omitting the water development option
The water development option provisions are not consistent with the government's
position due to concerns of risks to the Great Barrier Reef, the potential over-
allocation of water resources, and absence of public consultation prior to granting of
a water development option.
To address this, the Bill omits the water development option provisions in the Water
Reform and Other Legislation Amendment Act 2014.
Omitting provisions to declare a designated watercourse
The Water Reform and Other Legislation Amendment Act 2014 expands on the
existing suite of statutory authorisations for the take and interference with water by
including provisions for the declaration of a designated watercourse. A person would
not require a water licence or permit for the take or interference with water from a
designated watercourse.
The Bill removes provisions which allow for the declaration of designated
watercourses from the Water Reform and Other Legislation Amendment Act 2014 to
ensure transparency and continued appropriate regulation of water resources.
Transitional provisions
The Bill amends the transitional provisions to ensure all existing water planning
instruments and processes are appropriately transitioned into the new framework.
Miscellaneous amendments
This Bill also amends other provisions in the Water Reform and Other Legislation
Amendment Act 2014 to ensure new provisions of the Water Act can operate
effectively. These include amendments to:
• ensure rules for deciding an application to relocate a water licence can be
included in a water plan
• ensure a water management protocol can state the criteria and process for
deciding applications for a seasonal water assignment or for relocation of a water
licence where the water plan allows
• provide for a water entitlement notice to grant a water licence or water allocation
to replace a surrendered water allocation
• correct a cross-reference in the Water Reform and Other Legislation Amendment
Act 2014 to ensure all water allocations are registered on the water allocations
register
• amend publishing requirements for water licence applications
• ensure that a decision on a water licence application must be consistent with a
water entitlement notice
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Water Legislation Amendment Bill 2015
• allow the chief executive to deal with a resource tenure that is partly within and
partly outside a declared cumulative management.
Validation of the Lower Herbert Water Management Authority
When formed in 2005 under the Water Regulation, the Lower Herbert Water
Management Authority was intended to be an amalgamation of four category 2 water
authorities--the Foresthome Drainage Board, the Loder Creek Drainage Board, the
Mandam Drainage Board and the Ripple Creek Drainage Board. However, the
amalgamation, which was enacted on 16 December 2005 by the Water and Other
Legislation Amendment Regulation (No.1) 2005, was not properly effected under the
Water Act. The amalgamation ought properly to have been effected under
section 690 of the Water Act, but was instead effected under section 548 of the
Water Act.
To address this, the Bill includes a validation provision in the Water Act to provide
that the formation of the water authority and the dissolution of the former water
authorities are taken to have had effect from the date when the amendment
regulation commenced. All of the actions of the water authority since that date are
also taken to be valid, and to have always been valid.
Amendments to the River Improvement Trust Act 1940
Minor amendments are also required to the River Improvement Trust Act 1940 (River
Improvement Trust Act) to:
• clarify provisions relating to the establishment and possible membership of river
improvement trusts
• clarify the powers and obligations of trusts in relation to the undertaking and
maintenance of works
• confirm the continuation from 19 December 2014 of all river improvement areas
and trusts in existence immediately before that date
• confirm the validity of appointments to existing trusts made by the Minister
consistently with the relevant provisions of the River Improvement Trust Act prior
to 19 December 2014.
These amendments clarify changes to the River Improvement Trust Act that
commenced 19 December 2014.
Alternative ways of achieving policy objectives
The Water Reform and Other Legislation Amendment Act 2014 must be amended to
give effect to the Government's election commitment and to ensure commencing and
transitional provisions can operate effectively. There is no alternative way of
achieving the policy objectives.
Estimated cost for government implementation
No costs to government are currently envisaged for the proposed amendments to
the Water Reform and Other Legislation Amendment Act 2014, as these changes
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Water Legislation Amendment Bill 2015
are generally administrative in nature. However, if any operational costs do arise
they will be met from existing agency budget allocations.
Consistency with fundamental legislative principles
The Bill has been drafted with regard to the fundamental legislative principles as
defined in section 4 of the Legislative Standards Act 1992 and is generally consistent
with fundamental legislative principles. Potential breaches of fundamental legislative
principles are addressed below.
Clause 5
Clause 5 of the Bill includes a transitional provision in the River Improvement Trust
Act 1940 which operates retrospectively. As such the clause could be perceived as
potentially breaching the principle that legislation should not adversely affect rights
and liberties or impose obligations, retrospectively.
The transitional provision confirms the continuation from 19 December 2014 of all
river improvement trust areas and trusts in existence immediately before that date,
and confirms the validity of appointments to existing trusts made by the Minister in
accordance with the relevant provisions of the River Improvement Trust Act prior
to 19 December 2014.
Despite this retrospectivity, the provision does not appear to adversely affect any
individual's rights and liberties, or impose obligations on any individual. This is
because river improvement trusts and their members have continued to operate as
though unaffected. This transitional provision simply puts the continued existence of
trusts beyond doubt should the validity ever be questioned in the future. As such, it is
argued that the fundamental legislative principles have not been breached in terms
of the retrospectivity of the provisions.
Clause 8
Clause 8 of the Bill potentially breaches the principle that legislation should not
adversely affect rights and liberties or impose obligations, retrospectively. The
amendment to validate the establishment of the Lower Herbert Water Management
Authority potentially breaches the principles that legislation should not adversely
affect rights and liberties, or impose obligations, retrospectively.
In this case, retrospectivity is justified to remove any doubt about the validity of
actions taken by the water authority since its establishment in 2005. In doing so, the
provision provides certainty for the authority and all entities having interacted with
the authority, including water users.
Clause 16
Clause 16 of the Bill dealing with the declaration of cumulative management areas
potentially breaches the principle that legislation should only make rights and
liberties, or obligations, dependent on administrative power if the power is sufficiently
defined and subject to appropriate review.
The amendment proposed allows the chief executive to decide, for a tenure that is
partially within and partially outside a cumulative management area, whether the
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Water Legislation Amendment Bill 2015
tenure, or part of the tenure is a cumulative management area tenure. However the
provision does not allow a tenure holder the right of appeal or review. In this case,
not providing the right of appeal or review is justified as the tenure holder will be
consulted as part of the decision-making process. Additionally, not giving the tenure
holder the right of appeal or review is consistent with the approach taken for the
remainder of the chapter 3 of the Water Act groundwater management framework
provisions.
Furthermore, this amendment forms a subsection to section 365, which gives the
chief executive the ability to declare a cumulative management area and give notice
of this declaration to each cumulative management area tenure holder. There is no
right of appeal or review given to cumulative management area tenure holders when
a cumulative management area is declared under the Water Act. Consequently, it is
considered inappropriate and inequitable to give this right to tenure holders whose
tenure is partly in and partly outside the cumulative management area when this
right is not given to cumulative management area tenure holders whose tenure is
wholly within cumulative management area.
Consultation
The Department of Natural Resources and Mines and Department of Environment
and Heritage Protection met with key stakeholder groups that form the Water
Engagement Forum on 1 and 4 June 2015, as well as 2 October 2015 to discuss
proposed changes related to the Water Reform and Other Legislation Amendment
Act 2014. Stakeholders included in the Water Engagement Forum are: AgForce,
Association of Mining and Exploration Companies, Australian Bankers' Association,
Australian Petroleum Production and Exploration Association Ltd, Environmental
Defenders Office' Great Barrier Reef Marine Park Authority, Irrigation Australia,
Local Government Association of Queensland, Local Management Arrangements for
Irrigation Channel Schemes, Queensland Conservation Council, Queensland
Farmers' Federation, Queensland Regional Natural Resource Management Groups
Collective, Queensland Resources Council, State Council of River Trusts,
Queensland Seafood Industry Association, Seqwater, SunWater, The Wilderness
Society and the World Wide Fund for Nature Australia.
The majority of stakeholders support the amendments, including the reinstatement of
ecologically sustainable development principles, omitting the water development
option provisions and omitting provisions to declare designated watercourses.
The Office of Best Practice Regulation was consulted and confirmed that the
amendments are excluded from further analysis under the Regulatory Impact
Statement System.
Consistency with legislation of other jurisdictions
The Bill is specific to the State of Queensland and amends existing Queensland
legislation.
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Water Legislation Amendment Bill 2015
Notes on provisions
Part 1 Preliminary
Short title
Clause 1 states that when enacted, the Bill will be cited as the Water Legislation
Amendment Act 2015.
Part 2 Amendment of River Improvement Trust Act 1940
Clause 2 states that this part amends the River Improvement Trust Act 1940.
Amendment of s 5 (Membership of trust)
Clause 3 amends s 5 as follows:
• section 5(1) is amended to clearly distinguish between establishment of a trust
under a regulation and provision for the membership of a trust
• section 5(1)(b) is amended for consistency with amendments to section 5(1)
• section 5(1A) is amended for consistency with amendments to section 5(1) and
to clarify that membership of a trust may alternatively be provided for in a
regulation
• section 5(1B) is amended for consistency with amendments to section 5(1A)
• section 5(2) is also amended for consistency with amendments to section5(1A).
Amendment of s 10 (Works which trust may undertake or maintain)
Clause 4 amends s 10 as follows:
• section 10(1)(a) is amended to clarify the power of the chief executive to direct
the trust not to undertake or maintain works
• section10(1)(b) is amended to clarify the power of the chief executive to direct a
trust to undertake or maintain any works for the purpose of achieving the object
of the Act
• section 10(1)(c) inserts a new paragraph that clarifies the obligation of a trust to
comply with any direction given by the chief executive to the trust about the
undertaking or maintenance of works under sections 10(1)(a) or 10(1)(b)
• section 10(3) is amended to reflect that the power of a trust under
section 10(1)(a) to undertake or maintain works is already subject to the direction
of the chief executive under section 10(1) and that a trust is no longer required to
seek the approval of the chief executive before undertaking or maintaining works
• section 10(4) is amended to clarify that this provision does not limit the power of
the trust to enter into contracts under section 7(2).
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Water Legislation Amendment Bill 2015
Insertion of new pt 9
Clause 5 inserts a new pt 9 into the River Improvement Trust Act 1940.
New Part 9 Transitional provision for Water Legislation Amendment
Act 2015
New section 24 - Continuance of areas and trusts
New section 24 confirms the continuation, from 19 December 2014 when
amendments to the River Improvement Trust Act 1940 commenced, of all
river improvement areas and river improvement trusts in existence
immediately before that date. Although no specific action has been taken
to abolish any of the river improvement areas and their respective trusts,
this section aims to clarify the intention that they continued from 19
December 2014.
Section 24 also clarifies, for the period 19 December 2014 until when the
amendments proposed by the Bill take effect that membership of an
existing river improvement trust under section 5(1) is valid despite being
provided for independently of any regulation.
Amendments to section 5 commencing 19 December 2014 required
certain membership matters to be stated in the regulation establishing the
trust, however this was only intended to apply in relation to the
establishment of specific trusts. The Bill removes this requirement, and
this section simply clarifies that the trusts and their membership are taken
to have continued, and are taken to be valid, despite a regulation not
specifically providing for the membership of the trusts.
Part 3 Amendment of Water Act 2000
Act Amended
Clause 6 states that this part amends the Water Act 2000.
Amendment of s 5AA (Watercourse etc. may be mapped)
Clause 7 amends section 5AA renumbering sections to reflect the omission of
designated watercourse from this section.
Insertion of new ch 9, pt 9
Clause 8 inserts a new ch 9, pt 9 into the Water Act 2000.
New Part 9 - Validation provision for Water Legislation Amendment
Act 2015
New section 1282 - Validation of formation and actions of Lower
Herbert Water Management Authority
New section 1282 validates the formation and actions of Lower Herbert
Water Management Authority to remove any doubt as to the validity of its
formation on 16 December 2005 under the Water and Other Legislation
Amendment Regulation (No. 1) 2005 SL No. 334.
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Water Legislation Amendment Bill 2015
Under this part, the dissolution of Foresthome Drainage Board, Loder
Creek Drainage Board, Mandam Drainage Board and Ripple Creek
Drainage Board (collectively the former authorities) and their
amalgamation to form the Lower Herbert Water Management Authority on
16 December 2005 is confirmed and validated.
The dissolution on that date of the authority areas of the former authorities
and the formation of the authority area of Lower Herbert Water
Management Authority as shown on plan AP4064 is confirmed and
validated.
The actions from that date of Lower Herbert Water Management Authority
and the appointment, employment, engagement and actions of its office
holders, employees and agents are confirmed and validated.
This provision is necessary as the amalgamation ought to have been
effected under section 690 of the Water Act in 2005, but was instead
effected under section 548 the Water Act.
Amendment of sch 4 (Dictionary)
Clause 9 amends the Water Act to correct a section reference to the appropriate
authorising provision for the dictionary.
Part 4 Amendment of Water Reform and Other Legislation
Amendment Act 2014
Act amended
Clause 10 states that this part amends the Water Reform and Other Legislation
Amendment Act 2014, part 8, which ultimately amends the Water Act.
Amendment of s 58 (Replacement of long title)
Clause 11 amends the replacement of the long title of the Water Act by section 58 of
the Water Reform and Other Legislation Amendment Act 2014 replacing 'responsible
and productive' with sustainable. This ensures the long title is consistent with the
new purpose of the Water Act as amended by the Bill.
Amendment of s 59 (Replacement of s 2 (Commencement))
Clause 12 replaces section 59 of the Water Reform and Other Legislation
Amendment Act 2014.
New section 2 - Purposes of Act and their achievement
Clause 12 replaces section 59 of the Water Reform and Other Legislation
Amendment Act 2014 to include a purpose for the Water Act that, while
based on section 59 of the Water Reform and Other Legislation
Amendment Act 2014, removes the term 'responsible and productive
management' and instead focusses on 'sustainable management',
including the principles of ecologically sustainable development, in
relation to the planning, allocation and use of water resources, quarry
material and riverine protection in Queensland.
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Water Legislation Amendment Bill 2015
The section states the four main purposes of the Water Act. Each main
purpose is intended to guide the relevant main chapters of the Water Act.
The first main purpose is to provide a framework for the sustainable
management of water resources and quarry material by establishing a
system for the planning, allocation and use of water, the allocation of
quarry material and riverine protection. This first main purpose is intended
to be primarily relevant to chapter 1A Water supply emergencies and
restrictions, and chapter 2 Management and allocation of water.
The meaning of sustainable management is outlined as applicable to this
main purpose. Sustainable management for the planning, allocation and
use of water resources, quarry material and riverine protection is
considered management that incorporates the principles of ecologically
sustainable development, provides for economic, physical and social
wellbeing, and facilitates community involvement. It recognises the
importance of sustaining ecosystem health, water quality and water-
dependent ecological processes and biological diversity associated with
catchments, watercourses, lakes, springs, aquifers and other natural
systems, provides fair, transparent and orderly processes and promotes
the efficient use of water.
The concept of the efficient use of water is clarified in terms of how it is
intended to be promoted. The efficient use of water is intended to be
considered through the initial allocation of water rather than, for example,
at each simple water licence dealing such as the subdivision of an existing
water licence.
The second main purpose is provide for the sustainable and secure water
supply and demand management for the south-east Queensland region
and other designated regions. This purpose is intended to be primarily
relevant to chapter 2A, Water supply and demand management.
Section 340 of the Water Act provides additional context to the purpose of
this chapter.
The third main purpose is to provide a framework for the management of
potential impacts on underground water caused by the exercise of
underground water rights by the resource sector. This purpose is intended
to primarily be relevant to chapters 3 Underground water management
and 3A, Office of Groundwater Impact Assessment. Section 361 provides
additional context as to the purpose of the underground water
management provision of the Water Act.
The fourth main purpose is to provide a framework for the effective
operation of water authorities, which is primarily relevant to chapter 4,
Water authorities. Section 542 of the Water Act provides additional
context as to the purposes of this chapter.
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Water Legislation Amendment Bill 2015
The main purposes will also guide the implementation of the provisions of
the supporting chapters of the Water Act. Chapter 5, Investigations,
enforcement and offences, chapter 6, Reviews and appeals, chapter 7,
Legal proceedings, chapter 8, Miscellaneous and chapter 9, Transitional
provisions and repeals, operate to support the implementation of the main
chapters of the Water Act, such as chapter 2, Management and allocation
of water.
The provisions within these supporting chapters take on the main
purpose/s of the primary chapter/s to which the provisions are supporting.
For example, a provision about an offence for the breach of a water
licence condition under chapter 5 would be relevant to chapter 2 which
provides for water licences. As such, the purpose as it applies to chapter
2 would be relevant in this instance.
The main purposes will ensure that the Water Act remains contemporary,
keeping pace with current water management best practice, government
service delivery and technology.
Amendment of s 64 (Insertion of new s 5AA)
Clause 13 amends section 64 of the Water Reform and Other Legislation
Amendment Act 2014 to remove a designated watercourse as something that may
be identified on the chief executive's watercourse identification map. Under the
provisions of the Water Reform and Other Legislation Amendment Act 2014, a water
licence or permit is not required for the taking or interfering with water in a
designated watercourse.
Designated watercourses are removed by the Bill to ensure transparency and
appropriate regulation of water resources. The remainder of new section 5AA, which
allows for the establishment of a watercourse identification map, commenced on 11
September 2015. Section 5AA of the Water Act is renumbered by clause 7 of the Bill
to accommodate the changes made through this clause.
Amendment of s 65 (Insertion of new s 6)
Clause 14 amends s 65 the Water Reform and Other Legislation Amendment Act
2014 to include a new section 7 of the Water Act which provides the meaning of
principles of ecologically sustainable development.
New section 7 - Meaning of principles of ecologically sustainable
development
New section 7 includes the principles of ecologically sustainable
development which are an important element of the current purpose of
chapter 2, Allocation and sustainable management, of the Water Act. The
principles of ecologically sustainable development set out in
subclauses (a) to (d) are the same as the principles of ecologically
sustainable development in section 3A(a) to (d) of the Environment
Protection and Biodiversity Conservation Act 1999 (Cth.).
The principles in subclauses (e) and (f) are based on guiding principles
contained in Australia's National Strategy for Ecologically Sustainable
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Water Legislation Amendment Bill 2015
Development, December 1992. The strategy defines ecologically
sustainable development as: 'using, conserving and enhancing the
community's resources so that ecological processes, on which life
depends, are maintained, and the total quality of life, now and in the
future, can be increased'.
Amendment of s 68 (Insertion of new ch 2)
Clause 15 amends section 68 of the Water Reform and Other Legislation
Amendment Act 2014 which inserts a new chapter 2 into the Water Act to provide for
the management and allocation of water. This clause amends the following sections
of the new chapter 2 as follows:
(1) Amendment of section 37 (Planning for the management of water)
Replaces the term responsible and productive with sustainable to ensure
the purpose of water planning is consistent with the new purpose of the
Water Act.
(2) Amendment of section 39(1) (Matters for regulation)
Replaces the term responsible and productive with sustainable to ensure
regulations made under the Water Act are consistent with the new
purpose of the Water Act.
(3) Amendment of section 39(2) (Matters for regulation)
Omits the requirement for a regulation that prescribes a processes for
releasing unallocated water to only allow a release to proceed if the chief
executive has first had regard to any water development options that
relate to the unallocated water. This provision is no longer required as the
Bill removes the ability to grant a water development option.
(4) Amendment of section 41 (What is a water plan)
This amendment replaces the term responsible and productive with
sustainable to ensure that the purpose of a water plan is consistent with
the purpose of the Water Act.
(5&6) Amendment of section 43 (Contents of a water plan)
Makes it clear that a water plan can state criteria and processes for
deciding an application for a dealing with a water licence. This
amendment is required as the existing provisions do not make it clear
which water planning instrument water licence dealing rules should be
located in. A related amendment to section 67 is also included in the Bill
to make it clear if the water plan allows the criteria and process for
seasonal water assignments and relocation of water licences can be
included in a water management protocol.
The amendment also renumbers the section to reflect the insertion of this
new subsection.
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Water Legislation Amendment Bill 2015
(7) Amendment of section 51(2)(c) (Preparing an amendment or
replacement of water plan)
Omits a paragraph which would have provided that the consultation
requirements do not apply to an amendment to a water plan to implement
a water development option.
(8) Omission of section 52 (Amending a water plan to implement a water
development option)
Omits section 52 which would have allowed for a water plan to be
amended to implement a water development option.
(9) Amendment of section 58 (What is a water use plan)
This amendment replaces the term responsible and productive with
sustainable to ensure that the purpose of a water use plan is consistent
with the purpose of the Water Act.
(10&11) Amendment of section 67 (What is a water management protocol)
This amendment makes it clear that a water management protocol can
state criteria and processes for deciding applications for a seasonal water
assignment or for relocation of a water licence.
The amendment also renumbers the section to reflect the insertion of this
new subsection.
(12) Amendment of section 68 (Making a water management protocol)
This amendment corrects a typographical error.
(13) Amendment of section 69(3) (Amending or replacing a water
management protocol)
Omits a paragraph that would have required the chief executive to amend
a water management protocol if necessary to implement a water
development option.
(14) Amendment of section 70(1)(b) (What is a water entitlement notice)
This amendment corrects an oversight to ensure that a water entitlement
notice can replace a surrendered water allocation, consistent with section
162 of the new chapter 2 of the Water Act.
Omits a reference to water development options.
(15) Amendment of section 73(1)(a) (Additional requirements for notices
for draft water entitlement notices that establish water allocations)
Corrects an incorrect cross-reference to make it clear that water
allocations granted under a water entitlement notice are required to be
registered on the water allocations register.
(16) Omission of Chapter 2, part 2, division 7 (Water development
options)
Omits entire division relating to water development options
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Water Legislation Amendment Bill 2015
The deleted division facilitated the concurrent environmental impact study
and Water Act approvals processes, and provided proponents with an
upfront provisional commitment over future access to water and
exclusivity of access to that water for their project providing the project's
bona fides were proven through an environmental impact assessment.
The water development option provisions are not consistent with the
government's position due to concerns of risks to the Great Barrier Reef,
the potential over-allocation of water resources, and absence of public
consultation prior to granting of a water development option.
(17) Amendment of section 101(1)(e) (Authorisation that may be altered
or limited by water planning instrument)
Removes the provision which provided an authorisation to take or
interfere with water from a designated watercourse without the
requirement for a water licence or permit. A designated watercourse is a
watercourse identified by the chief executive on the watercourse
identification map as a designated watercourse. Provisions for designated
watercourses are removed by the Bill to ensure transparency and
appropriate regulation of water resources.
(18&19) Amendment of section 112 Public notice of application for water
licence
Provides an additional option for the chief executive when requiring an
applicant for a water licence to publish a notice about the application to
notify interested parties.
Currently, the notice published by the applicant must include all the
information about the application and making submissions. This amount of
information contributes significantly to costs for water licence applicants.
This amendment will allow the chief executive to require applicants to
publish a short notice in a newspaper directing interested parties to the
department's website for further information about the application and
about making submissions in relation to the application.
Water licence applicants are required to provide evidence of the notice
having been published. This may be either the information that was
published or the notice referring to the information on the department's
website.
(20) Amendment of section 116(1) (Granting a water licence under a
process in a plan or regulation)
Omits the provision allowing the chief executive to grant a water licence to
implement a water development option.
(21) Amendment of section 126(1) (Application to relocate water licence
etc.)
Ensures that a water plan, water management protocol or regulation may
state rules that allow for the relocation of a water licence.
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Water Legislation Amendment Bill 2015
(22) Amendment of section 129(1) (When chief executive must refuse
application)
Corrects an oversight to make it clear that the chief executive must refuse
a water licence application if it is inconsistent with a water entitlement
notice.
(23) Amendment of section 130(c) (When dealing must be assessed as if
it were a new water licence)
This is an amendment as a consequence of changes made to new
section 126(1) and ensures that a change to the location of a water
licence is excluded from a section 130 process where it is permitted under
a water plan, a regulation or water management protocol.
(24) Amendment of section 147 (heading) (Granting water allocations
under a process in a plan or to implement a water development
option)
Omits a reference to water development option from the section heading.
(25) Amendment of section 147(1) (Granting water allocations under a
process in a plan or to implement a water development option)
Omits a paragraph which would have allowed for the grant of a water
allocation to implement a water development option.
(26) Amendment of section 180 (Chief executive may grant a resource
operations licence or distribution operations licence without
application)
Omits a paragraph which would have allowed the chief executive to grant
a resource operations licence or distribution operations licence without
application in order to implement a water development option.
(27) Amendment of section 182(2)(a) (Deciding application for resource
operations licence or distribution operations licence)
Replaces the term responsible and productive with sustainable to ensure
that the chief executive considerations for granting a resource operations
licence or distribution operations licence are consistent with the purpose
of the Water Act.
Amendment of s 73 (Amendment of s 365 (Declaring cumulative management
areas))
Clause 16 amends section 73 to allow the chief executive to deal with a tenure that
is partially within and partially outside a cumulative management area. The Water
Reform and Other Legislation Amendment Act 2014 includes an amendment which
states that for such a tenure, the declared cumulative management area is taken to
include the whole of the tenure. However, this approach is not appropriate in all
circumstances.
The amendment provides for the chief executive to make a decision whether such a
tenure, or part of the tenure is a cumulative management tenure. In making this
decision the chief executive will have regard to the impacts on underground water
caused by, or likely to be caused by the exercise of underground water rights by the
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Water Legislation Amendment Bill 2015
resource tenure holder, advice from the Office of Groundwater Impact Assessment
and advice from the relevant tenure holder.
Amendment of s 188 (Replacement of s 1009 (Public inspection and purchase
of documents))
Clause 17 amends section 188 to omit reference to a water development option from
the list of documents that must be kept available for public inspection at offices of the
department.
Amendment of s 201 (Amendment of ch 9 (Transitional provisions and
repeals))
Clause 18 amends section 201 of the Water Reform and Other Legislation
Amendment Act 2014. This section provides transitional arrangements for the
transition to the new chapter 2 of the Water Act. This clause makes the following
amendments to ensure the transitional arrangements will operate effectively on
commencement of the Water Reform and Other Legislation Amendment Act 2014,
as follows:
(1) Amendment of section 1250 (Definitions for pt 8)
Inserts a new definition for 'deferred aspect' to ensure that a deferred
aspect under the unamended Water Act transitions following
commencement of the Water Reform and Other Legislation Amendment
Act 2014.
(2) Amendment of section 1253(3) (Continuation under the amended Act
of notices or documents published by Minister or chief executive)
Replaces the example for section 1253 with two examples to make it
more clear the scenarios for which this provision is intended to apply.
These include:
• Where a statement of proposals to prepare a draft water resource
plan has been released prior to commencement of the new chapter 2
of the Water Reform and Other Legislation Amendment Act 2014. In
this circumstance, the operation of this section will mean the
statement of proposals is taken to be a notice of proposal under the
amended Act, and would lead to the release of a draft water plan
under the amended Act.
• Where the Minister has published a notice about the intention to
postpone the expiry of a water resource plan prior to commencement
of the new chapter 2 of the Water Reform and Other Legislation
Amendment Act 2014. In this circumstance, this section will allow the
process to be continued under the amended Act, allowing the
Minister to make a decision to postpone the expiry of the water plan.
(3-6) Amendment of section 1256 (Water resource plans taken to be water
plans)
The amendments to section 1256 clarify the arrangements for
transitioning water resource plans to water plans.
• Currently, section 1256 provides that if there is a notice published
about a draft, amending or replacement resource operations plan,
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Water Legislation Amendment Bill 2015
then a water resource plan does not transition to become a water
plan. It is not clear in the current drafting if this applies to the water
resource plan that the resource operations plan is to implement or to
all water resource plans. This amendment clarifies that it is only the
relevant water resource plan that does not transition to become a
water plan. Instead the relevant water resource plan becomes a
water plan when the draft, amending or replacement resource
operations plan that implements the water resource plan is approved
by the Governor in Council.
• These amendments also clarify the arrangements for transition of a
water resource plan when its relevant resource operations plan has
a deferred aspect. It ensures that a deferred aspect under the
unamended Water Act continues in existence until it is dealt with
under the unamended Act. If there is a deferred aspect for the
resource operations plan, both the relevant water resource plan and
resource operations plan will not transition into the new framework
until the deferred aspect has been dealt with (either cancelled or
given effect through amendment to the resource operations plan).
• Additionally, an amendment also clarifies, for the transition of water
resource plans to water plans, that if any provisions of a water
resource plan have a specified date for commencement and have
not yet commenced, those provisions remain uncommenced until the
specified commencement date even after the provisions are
transitioned to be included in a water plan.
(7-9) Amendment of section 1259 (Stated provisions of a resource
operations plan are taken to be, or are included in, or to be read and
construed with, other documents)
The amendments to section 1259 clarify the arrangements for
transitioning the provisions of resource operations plans into the new
water planning instruments under the new water planning framework:
• These amendments clarify the arrangements for transition of a
resource operations plan for which there is a deferred aspect. It
ensures that a deferred aspect under the unamended Water Act
continues in existence until it is dealt with under the unamended Act.
If there is a deferred aspect for a resource operations plan then the
relevant water resource plan and resource operations plan will not
transition into the new framework until the deferred aspect has been
dealt with (either cancelled or given effect through amendment to the
resource operations plan).
• An amendment also clarifies that if any provisions of a resource
operations plan have a specified date for commencement and have
not yet commenced at the time they transition to a new planning
instrument, then those provisions remain uncommenced until the
specified commencement date even after the provisions are
transitioned to a new water planning instrument.
(10&11) Amendment of section 1260 (Provisions of resource operations plan
taken to be included in a resource operations licence)
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Water Legislation Amendment Bill 2015
Makes it clear that environmental management rules transition from a
resource operations plan to a resource operations licence, and not to the
operations manual.
(12&13) Amendment of section 1261 (Provisions of a resource operations
plan taken to be an operations manual)
Removes reference to environmental management rules to reflect that the
environmental management rules are to transition from a resource
operations plan to become part of the resource operations licence, rather
than being included in an operations manual.
(14&15) Amendment of section 1264(1) (Provisions of a resource operations
plan taken to be an operations manual)
This amendment clarifies that this transitional provision does not apply to
processes for a seasonal water assignment or relocation of a water
licence. It is intended that provisions of a resource operations plan that
provide processes for seasonal water assignments or for relocation of a
water licence would transition to a water management protocol in
accordance with 1259(2)(f).
This amendment also corrects a paragraph numbering error.
(16) Amendment to heading of section 1265 (Provisions of Burnett water
resource plan taken to be included in operations manual)
Ensures the heading of section 1265 is consistent with the section as
amended by the Bill under subsection (17) below.
(17) Amendment of section 1265 (Provisions of Burnett water resource
plan taken to be included in operations manual)
This amendment ensures that additional provisions in the Water Resource
(Burnett Basin) Plan 2014 transition to appropriate water planning
instruments under the new chapter 2 of the Water Act. It is intended
where provisions for a water supply scheme, such as water sharing rules
or environmental management rules, are provided for in the water
resource plan, these would apply in the new planning instruments
(resource operations licence and operations manual) for the water supply
scheme. If there are equivalent provisions in the resource operations plan
for the same water supply scheme, the provisions in the water resource
plan for the water supply scheme would prevail, and the equivalent
provisions in the resource operations plan would cease to exist in the new
planning instruments.
This amendment updates the transitional provision to replace special
arrangements that existed for provisions of the Water Resource (Burnett
Basin) Plan 2014 that did not commence until 1 July 2015. As these
provisions have now commenced, the transitional arrangements for
dealing with these now commenced provisions need to be updated to
ensure they appropriately transition in to the new water planning
instruments.
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Water Legislation Amendment Bill 2015
This amendment makes it clear that the transition of water sharing rules
from the water resource plan into the operations manual by operation of
this section does not trigger an amendment of water allocations under
section 63 of the water plan. Currently section 63 of the Water Resource
(Burnett Basin) Plan 2014 requires water allocations to be amended if the
elevation of Claude Wharton Weir is less than 94.4m AHD at the time the
resource operations plan is first amended to include water sharing rules
for the Upper Burnett Water Supply Scheme.
(18) Amendment of section 1268(3) (Applications made but not decided
before commencement)
Section 1268 clarifies that this provision does not apply to a water licence
application that is subject to section 1272. Section 1272 applies to
applications about a water licence where a notice about the application
has been published. Without this amendment, there was no relevant
transitional provision that applied to water licence applications where a
notice had not been published, or is not required to be published.
(19) Omission of section 1276 (Unallocated water release process started
before commencement)
This section is omitted to reflect that the new process for release of
unallocated water has already been commenced in the Water Regulation
2002 on 11 September 2015. As such this transitional provision is no
longer required.
Amendment of s 202 (Amendment of sch 4 (Dictionary))
Clause 19 amends section 202 by omitting the definition for designated watercourse,
amending the definition of process to remove reference to a section that relates to
water development options, and including a dictionary reference to the meaning of
principles of ecologically sustainable development included by the Bill.
©The State of Queensland 2015
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