Wednesday, 22 March 2023
Bills
Water Legislation Amendment Bill 2023
Water Legislation Amendment Bill 2023
Statement of compatibility
Mary-Anne THOMAS (Macedon – Leader of the House, Minister for Health, Minister for Health Infrastructure, Minister for Medical Research) (10:38): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Water Legislation Amendment Bill 2023.
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 Legislation Amendment Bill 2023 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
Clause 3 of the Bill amends section 2 of the Water and Catchment Legislation Amendment Act 2021 (Amendment Act) to change the commencement date of any provision in the Amendment Act that has not commenced before 1 July 2023, from 1 July 2023 to 1 July 2024.
The other clauses in Part 2 of the Bill amend certain provisions in Parts 2 and 3 of the Amendment Act that have not yet come into effect. Upon commencement, these provisions in the Amendment Act will amend the Water Act 1989 (Water Act) to improve the regulation of the places, rates and times at which water can be taken by persons holding water rights in declared water systems, amongst other amendments.
Part 3 of the Bill amends Part 17 of the Water Act to provide additional savings and transitional provisions required as a consequence of the Amendment Act.
Human rights issues
The amendments made by the Bill engage the Charter rights to privacy (section 13) and to property (section 20).
Right to privacy
Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference with privacy will be lawful if it is permitted by a law which is precise and appropriately circumscribed and will not be arbitrary provided it is reasonable in the circumstances and just and appropriate to the end sought.
Part 5A of the Water Act provides for there to be a water register (Register), where records and information about water-related rights, entitlements, licences and approvals (statutory approvals), and the name and address of persons who hold a statutory approval, are recorded. The Register also enables the monitoring of, and reporting in relation to, water resource use and the water market. One of the Minister’s functions is to create, or enable the creation of, reports derived from information in the Register, which may be made available to the public subject to certain restrictions.
The name and address of each person holding a water right or a statutory approval under the Water Act is required to be recorded in the Register for several reasons. The rights and statutory approvals can be exchanged between people in the water market, subject to the Minister’s approval of each transaction in accordance with certain statutory criteria. The record in the Register is evidence of each person’s right to transfer the statutory approval to another person. Enforcement of each person’s compliance with the conditions and other limits on any statutory approval they hold also requires there be record of the name and address of every person who holds each approval.
Section 26 of the Amendment Act inserts sections 84VB and 84VC(1) and (2) into the Water Act to specify what information and records the Minister must record in the Register about certain water rights and about general and particular place of take approvals.
Clause 6 of the Bill divides section 26 of the Amendment Act into two sections, 26 and 26A of the Amendment Act. Clause 6 enables components of old section 26 to commence on separate days and changes the order in which the new sections will come into effect, so that section 84VB may be inserted into the Water Act before section 84VC is inserted. Clause 6 does not affect the extent to which sections 84VB and 84VC(1) and (2) engage the right to privacy as these sections are, in effect, the same as they are under old section 26 of the Amendment Act.
Clause 6 also amends new section 84VC of the Water Act (under new section 26A of the Amendment Act) by inserting new section 84VC(3), which will specify what information and records the Minister must record in the Register about external place of take approvals. The types of information that must be recorded are the same types of information that must be recorded for similar, particular place of take approvals under section 84VC(2) of the Water Act, including the name and address of the approval holder.
The information and records about external place of take approvals to be recorded in the Register will be subject to the power of the Minister to include approval holders’ names (but not their addresses) in a report of the Minister under proposed section 84EA(2) of the Water Act (to be inserted by section 23 of the Amendment Act). The name and address of approval holders will also be available to any person applying to search the Register under proposed section 84X of the Water Act (to be substituted by section 30 of the Amendment Act). In this respect, the Bill will interfere with the Charter right to privacy.
However, any interference will be precise and appropriately circumscribed. The collection of the name and address of a holder of an external place of take approval is necessary to support changes to, and exchanges of, an external place of take approvals, to protect the interests of each person holding such an approval and to enforce compliance with water laws. Public availability of this information is also circumscribed. The Water Act already enables an individual to apply to a Register recording body under section 84Y, or subsequently to VCAT under section 84Z of the Water Act, to have their personal information suppressed in certain circumstances. Further, regulations may be made under proposed section 84X of the Water Act to specify what records and information cannot be included in a ministerial report or cannot be accessed by search of the Register, which provides additional safeguards against arbitrary interference with privacy in relation to the collection and publication of information regarding holders of external place of take approvals. These measures to protect the right to privacy (discussed in the Statement of Compatibility for the Amendment Act) are not altered by this Bill.
Any interference with privacy by clause 6 of the Bill will therefore be lawful and not arbitrary. In my view, the right to privacy will not be limited by the amendments made by the Bill, and I therefore consider that the Bill will be compatible with the Charter right to privacy.
Right to property
Section 20 provides that a person must not be deprived of their property other than in accordance with law. Any power which authorises the deprivation of property must be conferred by a law, confined and structured, formulated precisely, and accessible to the public to allow people to regulate their own conduct.
Automatic cancellation of a general or particular place of take approval
Part 3 of the Amendment Act inserts proposed Part 4AA in the Water Act to regulate the place, rates and times at which water can be taken from a declared water system. It provides that the Minister may give approvals of the places at which persons can take relevant water allocations (‘general place of take approval’) under new section 64FC of the Water Act, and to persons to take their relevant water allocations from their approved place (‘particular place of take approval’) under new section 64FZJ of the Water Act.
Section 64FE of the Water Act will specify the circumstances in which a general place of take approval will cease to be in force, which are intended to be if the grounds on which a person may apply for a general place of take approval no longer exist and there is no notional rationing rate fixed to the approval or the rate is zero. Section 64FZL of the Water Act will specify the circumstances in which a particular place of take approval will cease to be in force.
In relation to any automatic cancellation of a general place of take approvals, insofar as existing approvals could be characterised as ‘property’ under the Charter, cancelling approvals may constitute a deprivation of property.
Clause 7 of the Bill will amend section 64FE(1)(c)(i) of the Water Act so that a general place of take approval will cease to be in force if the holder meets both criteria specified in paragraphs (A) and (B) of section 64FE(1)(c)(i), rather than only either paragraph (A) or (B) (in addition to criteria under section 64FE(1)(c)(ii), that there is no notional rationing rate fixed to the approval or the rate is zero). The effect of clause 7 of the Bill will be to narrow the circumstances in which a general place of take approval will automatically cease to be in force.
Clause 10 of the Bill will amend section 32 of the Amendment Act to substitute a new section 64FZL into the Water Act. New section 64FZL(a) will be, in effect, the same as old section 64FZL(a) so it will not engage the Charter right to property. New section 64FZL(b) will provide that a particular place of take approval for a class of relevant water allocations will cease to be in force if two criteria (rather than a single criterion) are met: if the holder no longer holds the right to receive any future water allocations in the class to which the approval relates and no longer holds any relevant water allocation under that right. Clause 10 will narrow the circumstances in which a particular place of take approval will automatically cease to be in force under proposed section 64FZL(b).
I consider that, because clauses 7 and 10 of the Bill will narrow the circumstances in which the general and particular place of take approvals will automatically cease to be in force, they will not unreasonably limit the Charter right to property.
External place of take approvals
Sections 40 and 41 of the Amendment Act will repeal sections 33AH and 33AI of the Water Act, which regulate the taking of water under a water allocation from a place that is outside the associated water system for the water share under which the allocation is made.
Clause 13 of the Bill will amend section 32 of the Amendment Act to insert a new Division 5 into proposed Part 4AA of the Water Act to provide for the regulation and approval of taking a relevant water allocation from a place that is not in a declared water system or is not in Victoria. New section 64FZV of the Water Act (to be inserted by clause 13) will specify the circumstances in which an external place of take approval will cease to be in force.
Insofar as external place of take approvals can be characterised as ‘property’ under the Charter, automatic cancellation of these approvals may constitute a deprivation of property. However, the automatic cancellation of an external place of take approval may only occur in very narrow circumstances: if the holder of an approval (that is not for a class of relevant water allocations) no longer holds the relevant water allocation (section 64FZV(a)); or if the holder of an approval for a class of relevant water allocations no longer holds the right to receive any future water allocations in the class to which the approval relates and no longer holds any relevant water allocation under that right (section 64FZV(b)). In either of these circumstances, the rights to water to which the approval relates will have been exhausted, so the approval will no longer be of any value to the holder. I therefore consider that, to the extent that any deprivation of property occurs as a result of the cancellation of any external place of take approvals, the Charter right to property will not be unreasonably limited by clause 13 of the Bill.
Clause 20 of the Bill provides savings and transition provisions for certain approvals given under old section 33AI of the Water Act, to take a water allocation from a place that is not in a declared water system or is outside Victoria, into external place of take approvals under new Division 5 of proposed Part 4AA of the Water Act.
To the extent that an approval under section 33AI of the Water Act could be characterised as ‘property’ under the Charter, clause 20 of the Bill engages the right to property. Clause 20 preserves these property rights so it does not unreasonably limit any property rights.
I therefore consider that the Bill will be compatible with the Charter right to property.
For the reasons set out in this Statement, in my opinion, the Bill is compatible with the human rights as set out in the Charter.
Hon Mary-Anne Thomas MP
Minister for Health
Minister for Health Infrastructure
Minister for Medical Research
Second reading
That this bill be now read a second time.
I ask that my second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
In 2021, the Victorian Government passed the Water and Catchment Legislation Amendment Act 2021, which introduces a new framework to regulate the place, rate and time of taking water. This allows for better management of the system which delivers water to rural water users, and so protects existing rights and waterways.
This Bill clarifies some sections of the 2021 Amendment Act to ensure it’s in line with the intent of that Act and so that the reforms can be smoothly implemented. It will continue to protect the existing rights of Victorian water users, provide more flexibility for them to manage their own delivery risks and improve powers to manage delivery shortfalls.
Delivery shortfalls occur when river operators can’t deliver water to water users – including to irrigators and the environment – where and when they want to take it. This may occur when there is increased daily demand during a heatwave and the long distance from the dams means water can’t be delivered in time. Climate change is expected to increase the frequency of hot days and the length of warm spells, so peaks in daily demand are likely to continue to increase.
Although such shortfalls have been rare, the risk of shortfall occurring in the River Murray is real and increasing. The Victorian Government is preparing now to make delivery rights clear and consistent should these risks also emerge in other Victorian declared water systems in the future.
The 2021 Amendment Act provides a stronger framework for managing these water delivery challenges and streamlines the existing overly complex provisions that relate to where water is taken from a declared water system.
The consultation on new rules developed under the framework coincided with the emergency flooding event in late 2022. The ongoing impact of floods, including on the 2023 crop harvest, has created challenges for meaningful engagement with water users on these important rules.
This Amendment Bill will delay the introduction of the new framework for up to 12 months, to provide more time for water users, many of whom have been recently impacted by floods, to understand and adjust to these changes. It will move the default commencement date from 1 July 2023 to 1 July 2024, and allow for an earlier introduction of the framework once proper consultation is complete.
I commend the Bill to the house.
Cindy McLEISH (Eildon) (10:39): I move:
That this debate also be adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 5 April.