Wednesday, 20 March 2019

 Ms NEVILLE (Bellarine—Minister for Water, Minister for Police and Emergency Services) (10:19): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Water and Catchment Legislation Amendment Bill 2019.

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the ‘Charter’), I make this Statement of Compatibility with respect to the Water and Catchment Legislation Amendment Bill 2019.

In my opinion, the Water and Catchment Legislation Amendment Bill 2019, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Water Act 1989 (the Water Act) and the Catchment and Land Protection Act 1994 (CaLP Act) to implement the Government’s commitment in its Water for Victoria plan to incorporate Traditional Owner and Aboriginal values and uses of water resources and waterways and expand the inclusion of Traditional Owners and other Aboriginal Victorians in water resource and catchment planning and in the development and reviews of strategies.

The Bill will implement the Government’s commitment, in Water for Victoria, to modernise the compliance and enforcement regime to reflect best practice regulation and to implement certain recommendations of the Murray-Darling Basin Water Compliance Review of November 2017. It will do this by strengthening the compliance and enforcement provisions of the Water Act.

The Bill will also amend the Water Act to improve processes for declaring serviced properties and clarify the legal framework for charges for the provision of salinity mitigation services.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

Privacy rights—section 13

Section 13 of the Charter provides that a person has a right not to have his or her privacy, family, home, or correspondence unlawfully or arbitrarily interfered with.

Work on Dams, Bores, and Works

The powers provided in new sections 80 and 81 of the Water Act, to respectively, inspect dams and to carry out work on dams, bores or works, may interfere with the Charter’s section 13 right not to have privacy interfered with because it will permit authorised officers to enter land.

I consider that the interference is compatible with the Charter’s section 13 right because it is confined in its application, structured, and formulated precisely. The section 80 power will be circumscribed under the provision because it will only apply if a dam is of a construction or location that make it hazardous or potentially hazardous for public safety, property or the environment. The section 81 power to carry out work is not arbitrarily defined. It will be circumscribed under the provision because it will only apply if a person has failed to comply with a relevant directions notice, to prevent waste or pollution of water, to protect public safety, property or the environment or to secure compliance with water laws of licence conditions. It is therefore both lawful and precisely formulated.

The section 81 power will also be limited in its application to dams, bores or works, as these types of works are usually located on commercial or business land or premises, in contrast with residential land or premises where this kind of infrastructure is not ordinarily located. This section will therefore have minimal application to residential property, where the right to privacy is generally stronger. To the extent that new sections 80 and 81 interfere with the Charter’s section 13 right, the interference will therefore be minimised. To the extent that this provision may apply to a residential property, the section 133(1B) of the Water Act limits entry to residential land to carry out functions under the Act to circumstances where entry is between 7.30 am and 6.00 pm and the officer gives the occupier 7 days’ written notice or the occupier consents to the entry or entry is in an emergency.

Installation of Meters

A new section 142 providing for water corporation officers to enter private land for the purpose of installing and maintaining a meter may interfere with a person’s Charter right under section 13 to not have privacy unlawfully or arbitrarily interfered with.

I consider that the interference is compatible with the right to privacy because it is, authorised by law, structured, and reasonable. The power to enter land is circumscribed under this provision because it may be exercised only for the purpose of installing or maintaining meters. The power conferred is proportionate to the important function that the power provides for, of ensuring water meters are installed to measure amounts of water taken or used, or supplied or delivered to land.

The general limitation, under section 133(1B), will also limit entry of residential property, to certain situations as outlined above. These general limitations will circumscribe the power under section 142, and the extent to which it interferes with the Charter’s section 13 right will be minimised.

Cultural rights—section 19(2)

Section 19(2) of the Charter Act provides that Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community—

(a) to enjoy their identity and culture; and …

(d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

The Bill will amend the Water Act and CaLP Act to recognise and support the inclusion of Traditional Owners and Aboriginal Victorians in water and catchment management. Water Authorities will have a statutory requirement to consider Aboriginal culture values and uses when undertaking certain statutory processes and functions and when making decisions relating to both long and short term use of water resources. In doing so, water Authorities will be required to consult directly with specified Aboriginal parties and take into consideration any relevant recognition and settlement agreements made under the Traditional Owners Settlement Act 2010 and any Aboriginal cultural heritage land management agreements under the Aboriginal Heritage Act 2006.

The Bill will also provide that, so far as possible, at least one Aboriginal Victorian or Aboriginal person with experience or knowledge of Aboriginal values and traditional ecological knowledge of management of land and water resources is to be appointed as a member of the Victorian Catchment Management Council and for Aboriginal Victorians to be appointed as members of any consultative committee relating to the preparation of sustainable water strategies or review of long-term water assessments. Additionally, the Bill will provide for at least one representative from a relevant specified Aboriginal party as a member of a consultative committee for preparation of a management plan for a water supply protection area.

As the Bill explicitly recognises the cultural values of Aboriginal people and encourages their involvement in decision making where it impacts on the values and traditional uses of water by Aboriginal people, the Bill promotes cultural rights under the Charter.

Property rights—section 20

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law.

Declaration of serviced property

Water corporations are able to declare properties within their water, sewerage, waterway management or irrigation districts as serviced properties and impose fees and charges for services provided to their customers. Water corporations have identified that there are properties within their water and sewerage districts that have received a service for an extensive period but have not been formally declared as serviced properties.

The Bill will provide for a one-off opportunity for water corporation to identify these properties to be serviced properties. To be identified as a serviced property under this proposal, a property must have been receiving a service and been charged for that service for at least 2 years or more. The Bill will also validate the payment of any service charges imposed to date. While the water corporation will be required to place, in the Victorian Government Gazette, a notice of the plan identifying land as a serviced property there will be no requirement to advise the land owner directly.

The amendments will not interfere with a person’s property rights affected by a declaration as the properties are already being provided with a service and charged accordingly. The identification of land as serviced property will merely formalise current arrangements. As there will be no deprivation of property, the right to property is engaged, but is not limited.

Salinity Mitigation Charges

The Bill will also clarify the legal framework for the imposition of salinity mitigation charges, the determination of salinity impact zones and the administration of the revenue from the charges. The Bill will validate past charges. The charges have been used to fund salinity mitigation works and measures and to meet Victoria’s obligations under Schedule B of the Murray Darling Basin Agreement. The amendments will not result in a deprivation of property, as they relate to charges for the provisions of works and services only.

Work on Dams, Bores, and Works on Waterways

Under existing sections 80(1) and (2) of the Water Act the Minister is able to direct, by notice in writing, an owner of a private dam to carry out work on the dam or remove the dam, and to require an owner of a proposed private dam to re-site the dam, change how it will be built or to not build the dam. Replacement sections 80(1) and (2) are being inserted in the Act to transfer to the Minister, from the Governor in Council, the same power to give directions notices over public dams. The new sections also amend the reasons for the Minister to require work to be done, by replacing the aim of protecting life with protecting public safety and adding the aim of protecting the environment.

Under existing section 81(1) of the Water Act the Minister is able to carry out work on bores or works on waterways, including dams on waterways, but not a dam off a waterway. Replacement sections 81(1) and (1A) are being inserted to provide that the Minister can carry out work on public and private dams, on and off waterways, as well as on bores and other works on a waterway. The new sections also add, as reasons for the Minister carry out the work, the aims of protecting public safety, property and the environment, and to secure compliance with the Act, regulations or licence conditions.

The amendments may interfere with a person’s right not to be deprived of property under section 20 of the Charter. Both sections 80 and 81, as amended, may interfere with a property owner’s right to make decisions about how to deal with their property. Sections 80 and 81 may also interfere with the Charter section 20 right by permitting Authority officers and authorised persons to enter land to inspect works and to carry out work, which may limit a person’s use and enjoyment of the land they own or occupy. An amendment to section 309 of the Water Act will provide that the Minister (and ministerial delegates) may authorise a person to enter land under section 133 to carry out the Minister’s functions, which includes the functions to issue directions notices for, and, if necessary, carry out work on works on a waterway, bores and dams under sections 78, 79, 80 and 81.

I consider that the interference is compatible with the Charter section 20 right because it is authorised by law, confined and structured and formulated precisely. The section 80 requirement on an owner or occupier of works to carry out work is limited, because it will only apply for certain purposes: to remove hazards where a dam is or is likely to be hazardous to public safety, property, or the environment. Section 81 will be reasonably limited because it will only apply in certain circumstances if a person has not complied with a directions notice to do work, or for specified reasons to prevent pollution, or to protect public safety, property or the environment, or to secure compliance with the Act, regulations or licence conditions. A person will also be able to seek a review of a notice issued under section 80 by VCAT.

The powers that are contained in the new provisions also substantially already exist in the existing sections 80 and 81 provisions. The new provisions are limited in scope and only improve the effectiveness of the provisions and expand the existing provisions in a limited way. The addition of protecting public safety and the environment, as reasons for the Minister to require work to be done, provide further clarification on what reasons would justify imposing a work requirement to prevent hazards and will therefore provide more certainty and justification for the limitations on the Charter section 20 right. This justification and certainty on when there will be interference with the right will also minimise the interference with the right.

Licences

New sections 60 and 74AC of the Water Act will provide a power for the Minister to suspend or cancel a licence to take and use water (section 60) and a works licence (section 74AC). The power to cancel a take and use licence already exists under section 60 as a power to revoke the licence and this part of the new provision is only changing the terminology of the existing power. New sections 60 and 74AC may interfere with a person’s Charter right under section 20 because they will allow for take and use licences and works to be cancelled or suspended.

I consider that the interference is compatible with the section 20 Charter right because it is a reasonable limit to the right. The suspension and cancellation powers will be limited in that they may only be exercised where a licence holder has not complied with the Water Act, regulations or licence conditions or not paid an applicable fee or charge in respect of the licence or in other prescribed circumstances. The power will also be limited in that, before it can be exercised, there will be requirements to notify a licence holder and allow them to make a submission on the proposed cancellation or suspension. The power may also not be exercised until a certain period has elapsed to allow for submissions to be made. Finally the extent to which the new section 60 provision interferes with a right is limited because the power to “revoke” a take and use licence already exists under the Act so this part of the provision does not create a new interference with a right.

Installation of Meters

A new section 142 provides a power for a water corporation to install and maintain a meter on any land, in any position it considers appropriate. This new section may interfere with a person’s property rights under section 20 of the Charter because it will be necessary for water corporation officers to enter private land to install meters, which may interfere with a person’s use and enjoyment of their land. Sections 133(1)(a) and (d) of the Water Act provide powers for an Authority officer, or an authorised person, to enter land for the purpose of reading a meter installed under section 142 and to carry out any other function under the Water Act.

I consider that the interference is compatible with property rights because it is authorised by law, structured and reasonable. The power to enter land is circumscribed under this provision because it may only be exercised for the purpose of providing or installing, and maintaining, meters. The power conferred is proportionate to the important function of ensuring there are water meters to measure amounts of water taken, supplied or delivered to land or used on land.

The Water Act also includes a general limitation, under section 133(1B), on entering residential property. Section 133(1B) limits entry to residential land to carry out functions under the Water Act to circumstances where entry is between 7.30 am and 6.00 pm and the Authority officer or authorised person gives the occupier 7 days’ written notice, or the occupier consents to the entry, or entry is in an emergency. For meter reading, entry of residential premises may only occur between 7.30 am and 6.00 pm unless the occupier consents. These limitations on entering residential properties under the Water Act will apply to the section 142 power and therefore circumscribe the power. The extent that new section 142 interferes with the Charter’s section 20 right will therefore be minimised.

Further, the powers in new section 142 already substantially exist in the existing section 142. Existing section 142 provides that meters may be installed for the purpose of measuring the amount of water supplied or delivered, and may be installed for each occupancy and for each service. The new provisions make changes that are limited in scope: they only improve the structure of the provision and add that a meter may be installed for the purpose of measuring the amount of water taken or used, and may be installed at any point from which water is taken. The new elements of section 142 therefore only expand the provision in a limited way from the existing contents of the provision and provide further clarification on the reasons and locations for the installation of a meter. This will provide more certainty in the provision.

New section 142 also expands the provision by providing for criteria to be prescribed in regulations for determining what constitutes a separate occupancy, in addition to the relevant principles set out in the Valuation of Land Act 1960. The ability to prescribe additional criteria will improve certainty for making decisions about what is a separate occupancy in circumstances where the relevant principles set out in the Valuation of Land Act 1960 are not sufficient.

The enhanced certainty in section 142 will provide more justification for the limitations on the section 20 right. This justification, and certainty on when there will be interference with the right, will minimise the interference with the right.

Fair hearing and Presumption of Innocence—section 24 and 25

Section 24 of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Bringing proceedings in relation to salinity mitigation charges

Amendments proposed by the Bill may limit or prevent the bringing of proceedings in the particular circumstances but only in relation to those matters set out below. The fair hearing right is relevant to these amendments as the right has been held to encompass a right of access to courts to have one’s civil claims submitted to a judge for determination. However, the right to access the courts is not absolute and may legitimately be limited by the needs and resources of the community and individuals.

In the case of salinity mitigation charges imposed under section 287A, the Bill will clarify the existing legislative arrangements for imposing charges for salinity mitigation works and measures provided to address legacy salinity problems and to off-set the impacts of current irrigation in northern Victoria and to validate past charges. The proposed amendments will not affect the outcome of current litigation in the Supreme Court. As the Bill will clarify that the impost of charges to date has been done so lawfully, any limitation to the right to a fair hearing is reasonably justified.

The amendments proposed by the Bill relating to charges imposed under section 259 for serviced properties affect, in all cases, only properties that have been receiving a service for two years or more. The validation is in the public interest because any broad scope refusal to pay the charge would mean that the charge would need to be borne by others. The validation does not preclude a person challenging a tariff on other grounds. Various grounds for objection to a tariff are set out in section 266 of the Water Act. Any limitation to the right to a fair hearing is therefore reasonably justified.

Presumption provisions for taking, diverting or using water

Existing sections 33E and 63 of the Water Act provide for offences of, respectively, taking water from a declared water system or taking or using water from a non-declared water system, without authorisation. These sections currently do not contain presumption provisions for proving any elements of the offence.

Existing section 289(1)(a) provides for an offence of taking, using or diverting water that is under the control and management of an Authority without the Authority’s consent. Existing section 289(1)(b) provides for an offence of interfering with a flow of water that is under the control and management of an Authority, without the Authority’s consent.

Sections 33E, 63 and 289 are being substituted with new sections 33E, 63, 289 and 289C that will restructure each offence into three tiers for intentional, reckless and strict liability offences for unauthorised taking of water (and, in relation to section 63, taking or using water).

Existing section 289(3) currently provides an evidential presumption for the offences under section 289(1)—that an owner or occupier of land on which the water was used, or taken or diverted to is presumed, in the absence of evidence to the contrary, to have used, taken or diverted the water. This presumption, in an improved form, is being made available for enforcement of unauthorised taking or using of water from a declared or non-declared water system under new sections 33E and 63 and for taking, using or diverting water under new section 289.

New sections 33EA(1) and (2) will provide an evidential presumption that an owner or occupier of land to which water was taken or diverted, or used on, without authorisation is presumed, in the absence of evidence to the contrary, to be the person that took the water. New sections 63A(2) and (3) and 289A(2) and (3) will provide the same type of evidential presumption—that an owner or occupier of land to which water was taken or diverted, or used on, without authorisation will be presumed, in the absence of evidence to the contrary, to be the person that took, diverted or used the water (as applicable).

New sections 63A(1) and 289A(1) will provide an additional evidential presumption that a person holding a ‘relevant authorisation’ (which is defined) that specifies the land to which the water was taken, diverted or used on will be presumed, in the absence of evidence to the contrary, to be the person that took the water (or diverted or used the water, as applicable).

Presumption provisions for interfering etc with works or property of an Authority

Existing section 288(1) provides for an offence of interfering etc with the works or other property of an Authority without the Authority’s consent. Section 288(3) currently provides and evidential presumption that an owner or occupier of land—on which the Authority’s works or property are situated, that is serviced by the works or has water delivered to it which is recorded by a meter of an Authority—is presumed, in the absence of evidence to the contrary, to be the person that interfered etc with the works.

Section 288(1) is being substituted with new section 288, which will restructure the offence into three tiers for intentional, reckless and strict liability offences of interfering etc with property or works of an Authority. Existing section 288(3) is being replaced by new section 288A to make provision for the same evidential presumption.

Presumption provisions linking interfering etc with a meter under section 288 and taking, diverting or using water without authorisation

New sections 33EA(3), 63A(4) and 289A(4) will provide a new evidential presumption that a person who is found guilty under section 288 of interfering etc with a meter of an Authority that records the amount of water that is taken, delivered or supplied to, or used on, land will be presumed, in the absence of evidence to the contrary, to have taken, diverted or used water and will also be presumed, in the absence of evidence to the contrary, to have done so without authorisation.

Presumption provisions for estimating amount of water

Existing section 301 provides for several evidential presumptions to apply to court proceedings under the Water Act. Section 301(1) is being amended to provide that the amount of water recorded by a meter will be presumed, in the absence of evidence to the contrary, to be the amount of water that was taken to, supplied to, delivered to or used on, a property. The current provision applies only to the amount of water delivered.

Existing evidential presumptions in sections 301(2) and (3) are being substituted with new sections 301(2) and (3) as a consequence of amendments made to section 142 and new section 142A regarding an Authority’s power to record amounts of water and to estimate amounts of water. For enforcing offences to which the amount of water is relevant, and in certain circumstances where an accurate recording of the amount of water is not available, an estimated amount of water taken, or supplied or delivered to, or used on, a property will be presumed, in the absence of evidence to the contrary, to be the amount of water that was taken or supplied or delivered to, or used on, the property.

Assessment against the Charter

The new and amended presumption provisions may interfere with a person’s right to a fair trial, under section 24 of the Charter, and a person’s right to be presumed innocent, under section 25 of the Charter. The new and amended sections affect the way evidence will be considered by a court in proceedings to enforce offences for taking, diverting or using water and interfering etc with works or property of an Authority. The presumptions relate to evidence of, and proof of, the following facts: that water was taken, diverted or used; who took, diverted or used the water or who interfered etc with the works or property of an Authority; that there was no authorisation to take, divert or use the water; and the amount of water that was taken, diverted or used.

These new and amended provisions may engage the section 24 and section 25 Charter rights by placing an evidential burden on defendants. They will require a defendant to present evidence to rebut a presumption for these elements of proof and finding of fact if the presumptions are not rebutted on the balance of probabilities.

I consider that any interference with these rights is compatible with the Charter rights because the presumption, under sections 33EA, 63A, 288A and 289A, about who took water or who interfered with works or property, will be limited in scope and will only apply to a specified class of people. The people that the presumptions will apply to are those who ordinarily have responsibility for management of land they own or occupy and for the substantial requirements for taking water, diverting water or using water on land. This class of people is: owners and occupiers of land and holders of a ‘relevant authorisation’ (which will be defined in each of the relevant new sections).

The presumption under new sections 301(2) and (3) about the amount of water taken, diverted or used will be limited in that an estimate for the purposes of the presumption will need to be carried out under a new section 142A. Section 142A will specify that estimates can only be carried out in certain circumstances and that an estimate must be made using a certain methodology.

The presumption under new sections 33EA(3), 63A(4), and 289A(4) for the offence element that a person took water without authorisation, when they interfered etc with a meter, is limited in its application in that it will only apply when it is proved beyond reasonable doubt that a person interfered etc with a meter, and the person is found guilty of that offence. There is a rational link between interference with a meter and a person being presumed to have taken water they were not authorised to take. This is because, in normal circumstances, if a person has an authorisation to take water there is no need to interfere etc with a meter, and interference etc with a meter will only arise if there is an intention to take more water than is authorised.

This presumption is also necessary as interference etc with a meter alters the evidence or avoids the collection of evidence (the meter record) of how much water is passing through the meter. If the presumption is not provided, a person could interfere etc with a meter and face only the consequence of that offence while defeating enforcement of the offence of taking more water than they are authorised to take.

For all presumption provisions, there is also a limit to the extent that ordinary evidential burdens will be affected. A person’s ability to provide evidence against a prosecution case will be preserved and, when contrary evidence is provided against a presumption, the onus will then shift back to the prosecution to establish the relevant element of the offence. The presumption clauses under new sections 33EA, 63A, 289A and 301 are limited in their application in that they only apply to elements of the offence that are unduly difficult for a prosecution to establish: that water was taken without authorisation, who took the water, and the amount of water taken. This is because of the inherent difficulties in identifying possession of water and in tracking the movement of water by specific persons at specific times.

Finally, the presumptions about the person that took, diverted or used water for the offences under section 289(1) already exists under section 289(3). The additional application of this presumption to the offences in sections 33E and 63 will be limited in scope in that it will provide for consistency across all the offences in the Water Act of taking, diverting or using water without authorisation.

Conclusion

Accordingly, it is my view that the Bill is compatible with human rights as set out in the Charter.

Hon Lisa Neville MP,

Minister for Water

 Ms NEVILLE (Bellarine—Minister for Water, Minister for Police and Emergency Services) (10:19): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Andrew’s Labor Government, in partnership with water and land managers, the water sector, key stakeholders and the community continue to progress many of the actions set out in the government’s strategic plan for water, Water for Victoria.

In furthering those achievements, this bill will embed in law a number of the flagship policies of Water for Victoria including—

• recognition and involvement of Traditional Owners and Aboriginal Victorians and their cultural values in the management of, and planning for, water, waterways and catchments; and

• greater consideration of the social and recreational values and uses of our waterways for communities.

Aboriginal inclusion and cultural values

Water for Victoria recognises the importance of water for Traditional Owners and Aboriginal Victorians and their knowledge of water management over thousands of generations.

This bill will ensure that wherever possible, Traditional Owners and Aboriginal Victorians will have a voice at the table to impart their knowledge and share their values.

To ensure this becomes a business as usual practice, the bill will amend the Water Act 1989 and the Catchment and Land Protection Act 1994 to make it mandatory for the relevant statutory bodies—

• to incorporate Aboriginal cultural values and uses of water and traditional ecological knowledge in the management of waterways and catchments;

• as a statutory duty, to look for opportunities to provide for Aboriginal cultural values and uses of waterways when carrying out their other statutory functions;

• to include, where possible, Traditional Owners or Aboriginal Victorians in consultative committees and on the Victorian Catchment Management Council; and

• to consult with Traditional Owner Groups, native title holders and specified Aboriginal parties for the preparation of management plans and strategies for waterways and catchments.

Recreational benefits

The bill will also require water corporations, catchment management authorities and the Victorian Environmental Water Holder to consider opportunities to provide for the community’s social and recreational uses and values of waterways, in addition to environmental and economic values of water and waterways.

Water resource assessments and sustainable water strategies

Long-term planning for our water resources is essential for security of supply for cities and towns, industry and the environment. Long-term water resource assessments are a key tool in the Water Act to monitor the state of Victoria’s water resources. Importantly, a long term assessment will identify if there is declining water availability or deterioration in the health of our waterways.

In August 2018 we commenced the first of these long-term, 15 yearly, assessments of Victoria’s water resources.

Water for Victoria recognises it is premature to commence the long-term resource assessment for northern Victoria, while we are continuing to implement commitments under the Murray-Darling Basin Plan to return water to the environment until the Basin Plan is reviewed in 2026.

To align the timing of the long-term water resource assessment for northern Victoria with the Commonwealth’s review of the Basin Plan in 2026, the bill provides for the cessation of the long-term assessment of northern water resources currently underway and requires it to be commenced by 1 February 2025.

The bill also extends the time for undertaking a long term assessment from 12 to 18 months, which will apply immediately to the continuing long term assessment of water resources in southern Victoria. The extra time will ensure that we prepare a technically robust, high quality assessment. It is vital that we are doing everything we can and using the best available methods to get it right.

We have also commenced the ten-yearly reviews of the first generation of sustainable water strategies, completing the central region strategy in October 2018 and getting ready to start the review of the northern region strategy in October 2019.

A review of a sustainable water strategy includes extensive community consultation on how we balance and share the environmental, consumptive and community needs for water within our existing rights framework.

If a long term assessment of our water resources finds there are issues in water availability or waterway health, the only option currently available to the Minister is to undertake a formal post-assessment review, which includes the option of permanently qualifying rights to water.

A review of a sustainable water strategy, or making a new one, is a better process for stakeholders and other members of the community to engage in, for identifying actions to address concerns raised by a long term resource assessment.

The bill will therefore give the Minister more options for responding to any concerns raised by a long-term assessment. The Minster will—

• still be able to proceed directly to a formal post-assessment review, which includes the option of permanently qualifying rights to water; or

• instead, review or remake a sustainable water strategy; or

• do both. If the Minister considers that reviewing or making a new sustainable water strategy has not been able to identify sufficient actions to address the concerns determined by the long-term assessment, the Minster can then also undertake a formal, post-assessment review.

While building in more flexibility, the bill retains Victoria’s commitments—

• to undertake long-term water resource assessments every 15 years—to support environmental interests;

• to not be able to qualify rights to water in southern Victoria before 3 August 2021 and not more frequently than every 15 years—to continue to give long-term certainty and security to those holding water rights; and

• to review or remake sustainable water strategies, in consultation with the community, at least every 10 years—to provide opportunities for the community to influence decision making for how we manage water.

Salinity mitigation charges

Water for Victoria commits the government to improving the current approach to managing salinity in the Mallee region. The Mallee region, bordered by the Murray River and the South Australian border, is highly sensitive to the salinity effects of irrigation.

Since 1993, Victoria has operated a highly effective scheme to off-set the salinity impacts of irrigation by determining salinity impact zones across the region and imposing charges on irrigators that vary according to the zone and the amount of water they can use on their farms.

Through the charges, irrigators pay for the State to invest in works and measures to offset the damage their irrigation causes to the River and its surrounds. This scheme has enabled the development of 35,000 hectares of new irrigated agriculture in salinity impact zones in the Mallee region.

Recent ligation has raised questions of the legitimacy of various aspects of the scheme and how charges are imposed. The bill will clarify the Minister’s functions and powers to carry out salinity mitigation works and measures, determine salinity impact zones and charges and the administration of the revenue from the charges. The bill will also validate past charges up to the introduction of the bill in Parliament.

Compliance and Enforcement

Water for Victoria, also committed to modernising the compliance and enforcement provisions of the Water Act. Since Water for Victoria, the Murray-Darling Basin Authority released the Murray-Darling Basin Water Compliance Review (Basin Compliance Review) in late November 2017 which looked into the allegations of significant theft of water and inadequate enforcement of the rules in the northern part of the Murray-Darling Basin.

The Basin Compliance Review noted that there is a strong commitment in Victoria to compliance which is underpinned by sound governance arrangements.

This is reflected in Victoria’s published compliance statistics, which show that the great majority of water users in Victoria are compliant with their rights to take water. Where excess water has been taken, it was mostly small amounts, which was dealt with using an advisory or warning letter.

Victoria has a robust water management framework that is designed to protect the environment and holders of rights to take water from illegal take and use of water.

Each water corporation has officers who read meters and undertake proactive and reactive compliance activities. Across Victoria, all significant water use in both regulated and unregulated water systems is metered.

Many larger water users are monitored via telemetry; their taking of water is monitored continuously and in real time. Thousands of accurate new meters have been installed over the past decade.

Many irrigation systems have been modernised with automated control systems providing water corporations accurate information about water deliveries and losses, and preventing people from ordering more water than they are authorised to take.

Victoria operates Australia’s leading water register that tracks taking of water against authorisations to take, and verifies that trades comply with rules. Victoria regularly publishes comprehensive water accounts, up to date market information and compliance statistics.

Taken together, all these measures provide strong safeguards against large-scale misappropriation of water.

Nevertheless, the Basin Compliance Review found that the Basin States should have more comparable penalties and a full suite of enforcement powers and sanctions to make enforcement responses more flexible and appropriate in each circumstance.

To implement the Water for Victoria action and respond to comments of the Basin Compliance Review, this bill will strengthen the compliance and enforcement provisions of the Water Act, particularly in relation to unauthorised taking of water and certain principal offences that are critical to protecting the environment, rights and entitlements to take water, public safety and property.

The bill will also give the Minister and water corporations more options to secure compliance with water laws and enforce breaches of the laws and they will reduce the burden of evidence in a way that is fair and appropriate.

For an aggravated incident of the principal offences, including unauthorised taking of water, the Water Act already provides for a high penalty of 10 years imprisonment but a disproportionately low maximum fine. An aggravated incident of an offence is the commission of one of the principal offences under the Water Act that also results in serious damage to land, works or water or results in a person suffering substantial economic loss.

The bill will increase the maximum fine for an aggravated incident of a principal offence from 200 penalty units to 1200 penalty units ($193,428) to match the existing ‘level 5’ penalty (under the Sentencing Act 1991 scale) of 10 years imprisonment. It will also clarify that this penalty applies only to an intentional commission of the relevant offences.

The bill will also provide for prosecution of an aggravated incident of the same group of offences committed recklessly, with a maximum ‘level 6’ penalty (under the Sentencing Act 1991 scale) of 5 years imprisonment or 600 penalty units ($96,714), or both.

It is intended that the two elements of these offences, intent and recklessness, do not apply to whether commission of the relevant offence would result in serious damage or substantial economic loss.

The bill provides that the maximum fine for a body corporate found guilty of an offence is five times the maximum fine for individuals. This will ensure that large corporate agricultural businesses face appropriately serious sanctions if they seek to capitalise from disregarding Victoria’s water laws. The higher maximum fines do not override the obligation of a court under the Sentencing Act 1991 to consider a defendant’s capacity to pay a fine, which applies to a small, incorporated family farm business as much as it applies to any defendant.

The set of principal offences with high penalties for intentional or reckless commission of the offence includes the unauthorised undertaking of works or erection of structures on land that impact on drainage, the flow of stormwater and floodwaters, waterways, and on tidal waters. The effect of these offences is becoming more critical as a result of climate change causing more intense rain events, with more significant flooding, and rising sea levels.

By making it clear that enforcing a breach of an aggravated incident of the specified group of offences requires proof of intention or recklessness, the bill also enables the option of enforcing a strict liability version of the principal offences with a lower maximum penalty. This level of penalty will enable the development of a comprehensive penalty infringement scheme to address minor instances of offending.

The bill will also create new offences for breaching a condition of a licence to take and use water or a condition of a works licence and gives the Minister a power to suspend or cancel these types of licences. As suspension or cancellation of a licence can have very serious consequences for the licensee, such as loss of livelihood or animals left without water, the bill will require due process for the licensee, including being able to make a submission to the Minister before a decision is made and being given a right to apply for a review of the decision by the Victorian Civil and Administrative Tribunal.

Most offences of unauthorised taking or diverting water, or using water on land, occur on private property so there are significant challenges for detecting conduct in contravention of the Act, regulations or licence conditions. Detection and enforcement of these offences relies on accurate metering or other evidence for detection and a number of existing evidentiary presumptions.

The bill will make it easier to enforce unauthorised taking, diverting or using water by improving an existing presumption about who may be presumed to be the person who did this without an authorisation, to include a person holding an authorisation to take or to use water, where relevant. It also provides for a new presumption, that if a court finds a person guilty of having removed, tampered with or damaged an Authority meter, that will be evidence the person also unlawfully took water.

The bill also expands the scope of the Minister’s power to enable the Minister to carry out urgent works in relation to dams, bores and works on a waterway that pose a risk to public safety, the environment or property. In place of the Governor in Council, the Minister will be given the power to issue a directions notice to an owner of a public sector dam to make the dam safe, as the Minister already has this power in relation to private dams.

Compliance and enforcement arrangements for water resources are effective when both water users and the general public are confident that the rules for taking water are suitable and fair and that they are enforced appropriately.

With these amendments, Victorians can be confident that the right checks and balances will be in place to ensure that our water laws and the Basin Plan are complied with and that, when necessary, appropriate enforcement measures will be actioned.

Other items

The Bill will also increase efficiency in the administration of the Water Act with a number of red tape reduction initiatives and housekeeping amendments. These initiatives will include, for example, improving processes for declaring serviced properties, how districts are declared, regulating declared recreational areas, provide an exemption for seeking approval to dispose of matters into aquifers by means of a bore and removing a barrier to Melbourne Water being able to prepare plans for special water supply protection areas, that can influence the planning schemes for land in its water supply catchments.

Removing the barrier to Melbourne Water preparing plans for special water supply protection areas was identified by the program of work for the Yarra River Protection project. It is being included in this bill as the amendment will apply to all of Melbourne Water’s catchments, not only the Yarra River catchment.

As part of simplifying the processes for making changes to irrigation districts, tariffs will only be able to be imposed in relation to a serviced property. Currently, salinity mitigation and irrigation drainage charges can be imposed in relation to any property within an irrigation district.

A mechanism has been provided to bring properties receiving an irrigation drainage or salinity mitigation service or benefited by such a service under the new regime. The opportunity has also been taken to clarify the status of other properties in a district that have received a service for at least two years. Where a property meeting this criteria has been included in a plan lodged in the central plan office and notice of the plan has been gazetted, the Bill will validate any tariffs that have been imposed.

I commend the Bill to the house.

 Ms McLEISH (Eildon) (10:19): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 3 April.