Tasmanian Bills Fact Sheets Tasmanian Bills Fact Sheets[Index] [Search] [Download] [Bill] [Help]
Water Legislation Amendment Bill 2013
FACT SHEET
1. BACKGROUND
The Water Legislation Amendment Bill 2013 introduces amendments to the Water
Management Act 1999, Irrigation Company Act 2011, Land Use Planning and
Approvals Act 1993, Local Government (Building and Miscellaneous Provisions) Act
1993, War Service Land Settlement Act 1950 and Water and Sewerage Industry Act
2008.
In addition, the Bill also repeals the Irrigation Clauses Act 1973 and Waterworks
Clauses Act 1952.
The Bill has been developed as a result of a review of the Water Management Act
1999, Irrigation Clauses Act 1973 and Waterworks Clauses Act 1952, undertaken by
the Department of Primary Industries, Parks, Water and Environment.
The primary objective of the Water Legislation Amendment Bill 2013 is to provide a
contemporary framework for the administration and operation of water districts in
Tasmania, which is of critical importance given the Government's irrigation
development initiative and the development and operation of irrigation schemes by
Tasmanian Irrigation Pty Ltd.
In addition, Tasmania's rural water legislation will be consolidated within the one Act.
The amendments introduced through this Bill will place the legislative provisions
relating to water districts entirely within the Water Management Act 1999, and
complete the Tasmanian Water Legislation Framework in a manner entirely
consistent with the National Water Initiative.
1.1 Supply of Water for Irrigation
The Irrigation Clauses Act 1973 has been stretched in dealing with the contemporary
circumstances relating to water districts now at play in Tasmania, as it was never
intended to deal with the type and nature of irrigation districts and schemes that
Tasmanian Irrigation Pty Ltd administers.
The existing legislation does not provide the optimum contemporary framework to
support the progression of the Government's irrigation development program, and
some "quick-fix" amendments have been made in recent years, as interim measures
to remove legislative barriers to the development of modern irrigation schemes.
Notwithstanding that the Irrigation Clauses Act 1973 is not necessarily at odds with
National Water Initiative requirements, legislative reforms will enhance administration
and operation of irrigation districts in Tasmania, and give greater certainty for
investment in irrigation infrastructure.
2
The administration and operation of irrigation districts has evolved substantially since
the Irrigation Clauses Act 1973 was first introduced. Newer districts are administered
and operated in a much more sophisticated way, though at the same time, there are
a number of districts still operating in a manner more akin to that provided for forty
years ago.
An important aspect of this Bill is that it provides for the administration of irrigation
districts under a range of circumstances, such as small districts utilising flood
irrigation under the system of general availability, other districts supplying water from
natural flows as well as stored water, and the newest districts administered by
Tasmanian Irrigation Pty Ltd, supplying water through extensive and complex
schemes, which in some cases are fully reticulated.
Following passage of the new legislation, the administration of existing irrigation
districts will not change unless the relevant water entities decided to utilise new
provisions such as introducing a system of water delivery rights. In this way, the new
legislation will allow water entities to optimise the administration and operation
arrangements to best suit the circumstances of the districts they are administering.
Whilst the legislation will provide a contemporary framework for the administration of
water districts in Tasmania, it is important to note that there has been no change to
the core public policy objective relating to irrigation districts.
The Irrigation Clauses Act 1973 provides a set of statutory arrangements
underpinning rights and obligations of water entities, occupiers of land in irrigation
districts and holders of irrigation rights and other authorisations to take water in an
irrigation district. These statutory arrangements provide a public policy outcome in
the guise of enabling water supply arrangements for the benefit of communities,
defining who may expect to be supplied with water in an irrigation district, and
providing an appropriate set of powers to water entities to ensure they are able to
discharge their statutory obligations to supply water.
The principle at the heart of irrigation districts is that a benefit is bestowed on a
community as a whole, in the form of water supply, whilst some individual impositions
are applied. For example, a water entity has the power to acquire land or construct
works on private land which may affect individual land owners, however, a benefit
flows to the community as a whole in the form of a water supply system. In
exchange, individuals are able to hold statutory rights to the supply of water.
This core principle is maintained into the future and in this sense, there are no
changes in the policy intent of the legislation.
What the Bill does have to grapple with is significant complexity arising from moving
this core policy principle into a contemporary setting. The key issue is breaking the
association between land title and irrigation rights. Irrigation districts were originally
formed on the premise that all land within a district could be supplied with water, and
the granting of irrigation rights satisfied the irrigation needs of relevant parcels of land
at the time the rights were granted.
3
Irrigation rights could only be granted to owners and occupiers of a land in a district,
and water entities were obliged to supply water to every piece of land in a district for
which a right was in force.
As these rights were tied to land, it was not envisaged that they could be transferred,
separate from land, and hence, with the exception of subdividing rights (upon the
subdivision of land), irrigation rights could originally pass only to the successors of
the people to whom they were granted.
Whilst amendments to the Irrigation Clauses Act 1973 have enabled irrigation rights
to be transferred more broadly and for non-occupiers of land to be granted rights,
these amendments in themselves did not completely separate land title and irrigation
rights.
Under contemporary circumstances, irrigation rights should be fully tradeable, in full
or part, and hence the location at which a right is able to be exercised should be able
to change accordingly. However, to ensure certainty, particularly for water entities
operating extensive infrastructure with supply and delivery limitations, there needs to
be provisions defining, or limiting to some extent, the statutory obligation to supply
and deliver water with respect to any particular location a person may choose to
exercise their right.
In this regard, the Bill caters for water entities, occupiers of land, water access right
holders and potential water access right holders, the latter significant in the context of
water markets and transfer of rights over time. The new legislation provides an
appropriate balance between the statutory rights of water access right holders and
the statutory obligations of water entities to provide the public policy outcome
intended.
On this basis, the Bill contains provisions for holders of water access rights to
nominate the location at which they require the supply of water, and for water entities
to identify serviced land if they choose to do so. Where this is done, certainty will be
provided in regard to which land within a district a water entity will supply and deliver
water to, and it will allow an entity to plan ahead in regard to potential extensions to
infrastructure as market activity creates demand in previously unserviced parts of a
district. It will also enable an entity to clearly specify where it will supply and deliver
water to and where the supply and delivery of water will be subject to individual
agreement.
In addition, the Bill also provides a statutory underpinning for water delivery rights.
Where delivery rights are utilised, it will allow further separation in terms of holding of
water access rights and the actual delivery of water to a particular location. This
means that market activity can occur with the acquisition of delivery rights being the
prime determinant of whether water can be supplied and delivered to a particular
location. This is particularly effective mechanism where the delivery of water may be
constrained due to infrastructure capacity limitations.
4
1.2 Supply of Water for Other Purposes
The intent of the Waterworks Clauses Act 1952 and water supply districts is to
enable the supply of "pure and wholesome" water for domestic purposes. Given the
introduction of water and sewerage legislative reforms in recent years, the great
majority of the Waterworks Clauses Act 1952 is now redundant.
The Togari Water Supply District remains the only existing water supply district in
Tasmania post the transition of water and wastewater assets to the regional water
and sewerage corporations in July 2009.
The Bill introduces `rural water supply districts' as the administrative unit
underpinning the supply of water for irrigation and other purposes (note that the new
legislation provides that a rural water supply district may still be known as an
irrigation district). This measure removes the need for water supply districts currently
provided for under the Water Management Act 1999, and consequently makes the
Waterworks Clauses Act 1952 entirely redundant.
Water will be able to be supplied for any purpose in any rural water supply district,
under the one set of powers. Under the Bill's savings and transitional provisions, all
existing irrigation districts and the Togari Water Supply District will automatically
become rural water supply districts.
2. AMENDMENTS
2.1 Structure of Amendments
The majority of the amendments apply to the Water Management Act 1999. The key
amendments are:
(i) restructuring and simplifying Part 9 of the Act (`Water Districts') as it relates to
the establishment and administration of water districts, with Part 9 also
providing for an administration licence for a water district;
(ii) inserting a new Part 9A (`Supply and Delivery of Water in Rural Water Supply
Districts') that covers a range of matters previously dealt with by the Irrigation
Clauses Act 1973, and provides a contemporary administration system to
underpin the supply of water within rural water supply districts.
The Bill repeals the Irrigation Clauses Act 1973 and Waterworks Clauses Act 1952.
2.2 Restructuring and Simplification of Part 9 (`Water Districts')
Clause 29 of the Bill provides for the substitution of Part 9 (`Water Districts') with a
range of new provisions. Part 9 of the Water Management Act 1999 has been
rewritten to simplify the provisions that relate to the establishment and administration
of water districts.
5
Part 9 is structured as follows:
Division 1 Interpretation;
Division 2 Water districts;
Division 3 Application to establish water district;
Division 4 Licence to administer water district;
Division 5 Administration of water districts;
Division 6 Powers of licensed water entities in districts;
Division 7 Rates for riverworks and drainage districts.
The majority of the provisions are based on powers currently detailed in Part 9 of the
Water Management Act 1999 and Part 2 (`Construction of Waterworks') of the
Irrigation Clauses Act 1973.
The amendments to Part 9 also include provisions for an administration licence for a
water district, which is discussed in more detail below.
Rural Water Supply Districts
The Water Management Act 1999 currently provides for irrigation districts, water
supply districts, drainage districts, riverworks districts and hydro-electric districts.
Under the new legislation, only four types of districts will be provided for rural water
supply districts (replacing irrigation and water supply districts), and drainage,
riverworks and hydro-electirc districts.
The purpose of a rural water supply district is to enable a licensed water entity to
provide, maintain, operate and manage a rural water supply system supplying water
for irrigation and any other purpose.
Administration Licence
The new legislation provides that each entity responsible for the administration of a
water district will hold an administration licence. An administration licence will
provide a much more effective and certain instrument of authorisation for a water
entity to administer a district.
The administration licence will detail the conditions under which a licensed water
entity must administer a water district. For most districts, these conditions will simply
be those that were prescribed upon approval of their establishment, and as they may
have been amended from time to time.
For rural water supply districts, the administration licence will make reference to other
relevant statutory approvals (e.g. water licences and watercourse authorisations).
For most water districts, there will not be any noticeable changes in the way they are
administered. The new legislation requires the Minister to issue administration
licences within three months of its commencement. This three month period is
extended by a further three months for districts where there were no conditions of
6
approval of their establishment in place prior to the commencement of the new
legislation. For these districts, the Department of Primary Industries, Parks Water
and Environment will liaise closely with relevant water entities when developing
administration licences and determining whether conditions relating to their
administration need to be included.
2.3 Insertion of a New Part 9A (`Supply and Delivery of Water in Rural Water
Supply Districts')
Clause 29 of the Bill also inserts a new Part 9A `Supply and Delivery of Water in
Rural Water Supply Districts' into the Water Management Act 1999. Part 9A covers
a range of matters relating to the supply and delivery of water in rural water supply
districts and builds on the existing arrangements under the Irrigation Clauses Act
1973. Part 9A is structured as follows:
Division 1 Interpretation;
Division 2 Supply of water;
Division 3 Delivery of water;
Division 4 Rural water supply systems;
Division 5 Limited or reduced availability of water;
Division 6 By-laws;
Division 7 Charges.
The supply of water within a rural water supply district is the key matter dealt with in
Part 9A. Division 2 outlines the nature of the supply of water either under the system
of water access rights or under the system of general availability.
The water entitlement system outlined in Division 2 has a similar structure to the
water licensing provisions provided in Part 6 of the Water Management Act 1999. By
keeping the provisions quite similar to those in Part 6, the entitlement system in rural
water supply districts will mirror that operating in other parts of the State and will also
enhance the level of consistency with water access entitlement requirements of the
National Water Initiative (water access rights are discussed in more detail below).
Divisions 3 to 7 underpin how the supply of water under water access rights and
general availability will operate. Division 3 provides for the delivery of water in a rural
water supply district to be made using a system of water delivery rights. This is a
new concept (legislatively) in Tasmania and it will be at the discretion of a licensed
water entity as to whether water is delivered through a system of water delivery rights
(delivery rights are discussed in more detail below).
Division 4 provides powers in relation to ensuring water access right holders within a
rural water supply district are connected to a rural water supply system and to ensure
the protection of such systems. It provides for right holders to nominate the location
at which water is to be supplied and delivered. At the same time it provides certainty
for licensed water entities by specifying, as a minimum requirement, that a water
entity's obligation to supply and deliver water to a nominated location is limited to
within a rural water supply system.
7
Division 4 also provides that a licensed water entity may identify serviced land
(nominated location and serviced land are discussed in more detail below).
Division 5 gives licensed water entities powers to limit or suspend the supply or
delivery of water or reduce water available under a water access right under certain
circumstances.
The proposed arrangements are similar in principle to those applying to water
licences under Part 6 of the Water Management Act 1999, thus ensuring that
contemporary arrangements are in place to regulate the taking of water both within
and outside rural water supply districts.
Under Division 6, a licensed water entity is given the power to regulate the operation
of a rural water supply district through by-laws. By-laws are approved under the
common seal of the licensed water entity and must also be approved by the Minister.
By-laws are considered to be subordinate legislation and as such may require a
Regulatory Impact Statement and must be tabled in Parliament once made. These
requirements are mandatory for all by-laws made in Tasmania in accordance with the
Subordinate Legislation Act 1992.
Under existing legislation, by-laws made under the Irrigation Clauses Act 1973 are
approved by the Governor. The new procedure for making by-laws reflects a more
contemporary process. It has been drafted to follow a similar process underpinning
the making of local government by-laws.
Division 7 gives licensed water entities powers to levy a range of water charges
encompassing water supply charges, which also include construction charges, and
administration charges. This Division also specifies when the charges are to be
declared, when payment is due, liability for charges, interest on charges and
discounts, as well as action that can be undertaken for payment in arrears or
non-payment.
Water Access Rights
A water access right bestows upon its holder the right to be supplied with a certain
quantity of water, subject to the terms and conditions of the right and any by-laws
that a licensed water entity thinks fit to support the operation of a rural water supply
district.
A water access right authorises the holder of the right to take supplied water from a
water resource within a rural water supply system. The Bill provides that these rights
may also be referred to as irrigation rights, given that this nomenclature is widely
used in existing irrigation districts. Retaining this term will avoid imposing a need to
change and confusion in these districts.
Division 2 of Part 9A covers a range of matters relating to the structure of water
access rights such as details, authority and duration of a right; variation, transfer,
surrender, or cancellation of rights; as well as security interest and registration
requirements.
8
On the commencement of the new legislation, any irrigation rights in force under the
Irrigation Clauses Act 1973 immediately before the commencement day are taken to
be, on the same terms and conditions, water access rights under Part 9A.
Savings arrangements are also in place to ensure existing by-laws and water supply
charges applying to existing irrigation rights continue with the same terms and
conditions as currently specified.
Water Delivery Rights
Water delivery rights are defined under Part 9A as a right to the delivery of a certain
quantity of water to a nominated location.
Use of the system of water delivery rights by a licensed water entity is discretionary.
Currently Tasmanian Irrigation Pty Ltd operates a water delivery rights system
established through contractual arrangements, that supports the supply of water
through irrigation rights issued under the Irrigation Clauses Act 1973.
The water delivery right concept is simply a way in which the limited capacity of water
delivery infrastructure, such as a pipeline, can be distributed amongst water access
right holders. Without a delivery rights system, the only other way that capacity
limitations can be managed is to place conditions on a water access right relating to
the delivery of water at any particular location.
Given that the right to access a certain part of the capacity of delivery infrastructure is
a tradeable commodity, the legislation ensures a statutory basis to these rights and
places them on a similar footing to water access rights. The system of water delivery
rights actually provides water access right holders and licensed water entities with
greater flexibility and certainty, and will allow markets to develop to ensure
infrastructure is used at its maximum efficiency.
Division 3 of Part 9A covers a range of matters relating to the structure of water
delivery rights such as details, authority and duration of a right; variation, transfer, or
surrender of rights; as well as security interest and registration requirements.
Nomination of Location and Serviced Land
Division 4 of Part 9A covers rural water supply systems and the supply and delivery
of water to a nominated location within a rural water supply district. With the
separation of land title from water access rights, this division sets out where within a
district a water access right can be exercised.
A person entitled to a supply of water may nominate a location at which he or she
requires water to be supplied and delivered. That location may be within a rural
water supply system, which is the system of channels, pipes and other infrastructure
used in the collection and delivery of water in a rural water supply district, including
any watercourses or lakes used to supply water, that is located within the boundaries
of that district. Alternatively, the location may be outside a rural water supply system
with the agreement of a licensed water entity.
9
A licensed water entity is obliged to undertake any works necessary to allow
connection to a rural water supply system in relation to a nominated location.
Construction charges may be levied in respect of such a connection.
Where a system of water delivery rights is in operation, a licensed water entity is
required only to supply and deliver water to a nominated location to the extent that
relevant water delivery rights are also held by the water access right holder.
A licensed water entity may also identify serviced land within a rural water supply
district. Where it has done so, a licensed water entity must agree to any location
nominated within that area of serviced land and extend the rural water supply system
as necessary to service any such location.
2.4 Rescinding of Powers Relating to the Management of a Water
Management Plan by a Water Entity
A range of provisions in Part 4 of the Water Management Act 1999 relate to the
administration of a water management plan by a water entity or a group of
landowners (who intend to form a water entity). Since the commencement of the Act
in 2000, these powers have not been used and it is not clear why they were originally
included in the Act. It is hard to envisage how a water entity would practically
implement and administer a water management plan given the regulatory nature of
the provisions in a plan.
The legislation rescinds the provisions in the Act that relate to the administration of a
water management plan by a water entity. This does not, however, remove the
ability of farmers from taking an active role in the management of water resources
under a water management plan.
2.5 Minor Consequential Amendments to the Water Management Act 1999
A range of minor amendments to other parts of the Water Management Act 1999 are
included to support the establishment of a more effective legislative framework for
the operation and management of water districts throughout the State.
In 2009, Part 6A (`Authority to convey water via watercourse') commenced operation.
Some amendments to Part 6A are proposed that are a result of the Department's
experience in issuing and regulating Watercourse Authorisations for the conveyance
of water. This includes proposing amendments that provide for the Minister to
determine that part or all of a water entity's operations be exempted from the
requirement to hold a Watercourse Authority and that conveyance may occur when
the prior approval of a licensed water entity to convey water has been obtained. A
new provision is also included in Part 6A to allow existing Watercourse
Authorisations to be varied.
Amendments to Part 11 (`Meters') are also included, which will provide licensed
water entities powers similar to those held by the Minister in regard to water metering
in rural water supply districts.
10
2.6 Amendments to Other Statutes
The Bill makes a range of minor consequential amendments to other statutes
including the Irrigation Company Act 2011, Land Use Planning and Approvals Act
1993, Local Government (Building and Miscellaneous Provisions) Act 1993, War
Service Land Settlement Act 1950 and Water and Sewerage Industry Act 2008.
3. EFFECT OF AMENDMENTS ON WATER ENTITIES
The Bill includes a range of savings and transitional measures to minimise changes
following commencement of the new legislation. Notwithstanding these provisions,
some amendments will result in changes in the way new water districts are
established; existing water districts are administered (principally the provision of an
administration licence); and in the operation of water access entitlement system.
The primary purpose of the amendments is to provide a contemporary framework to
support the administration and management of water districts rather than impacting
on day-to-day, on-ground operational matters within a district. The following table
outlines implications for existing water districts.
Table 1. Implications of amendments for existing water districts.
Existing Districts
Amendment
Irrigation Water Riverworks District,
District Supply Drainage District,
District Hydro-electric District
Administration licence held by a water entity
administering a district
Administration licence to be issued by Minister1
District reclassified as a `rural water supply
2 no change
district'
Water supplied under Part 9A as a water access
not applicable
right3 or through general availability
Licensed water entity determines that water is to
be delivered using a system of water delivery not applicable
rights4
Any by-laws in force before the amendments will
not applicable
continue to apply
Water supply charges incurred before the
amendments carry forward
1. An administration licence will include the conditions of approval of the establishment of a district (see the
existing section 176(5)) and must be issued within 3 months of the commencement of the legislative
amendments. Where no conditions of approval for the district under section 176(5) exist, the Minister has
6 months to issue a water entity with an administration licence.
2. To avoid confusion, the amendments enable the term `irrigation district' to be retained.
3. To avoid confusion, the amendments specify a water access right may be referred to as an irrigation right.
4. Delivery rights are discretionary and a licensed water entity may supply and deliver water through a system
of delivery rights to persons holding water access rights. Currently Tasmanian Irrigation operates a delivery
rights system established through contractual arrangements that support the supply of water through
irrigation rights issued under the Irrigation Clauses Act 1973.