The Water Amendment (Entitlements) Act 2010 (Act 32/2010) will amend the Water Act 1989 (Vic). It received royal assent on 06/08/2010 but is not yet in force (it is yet to be proclaimed). The Act will be subsumed within the Water Act once it comes into force. Purposes of the amending Act are:

In the Act’s Second Reading on the 25th of November 2009, key themes of the Act’s proposals were identified as being:

• changes to respond to the consequences of long-term drought
• changes to improve and streamline the water entitlements framework for allocating water; and
• technical improvements to the regulation of water shares, take and use licenses, the water register and water-related legislation

Note: Clause 6 of the original Bill was removed by the Upper House and is no longer part of the Bill. Clause 6 would have allowed the Minister to temporarily qualify rights as a result of a water shortage for any length of time specified in the declaration (new s 33AAA(2B)).

Some of the main amendments and their impacts are outlined here. For detailed information please see the Act and its explanatory memorandum.

The previous right to take water from public waterways for stock and domestic use will be limited so that water can only be used at the place where it was taken (new s 8(3)). This is to prevent people from carting water from waterways to circumvent water restrictions, but is not intended to limit the so called ‘drover’s right’ to water cattle and stock, nor recognised Aboriginal cultural rights.

New s34A clarifies that the Minister can grant a bulk entitlement to water to an authority on approving a relevant application. A bulk entitlement authorises the holder to take and use water in accordance with the terms of the entitlement (new s 34B). s 45 will be amended so that the Minister can make a minor amendment to a bulk entitlement at the request of the entitlement holder or on the initiative of the Minister (if he/she consults with the entitlement holder). Only minor amendments as listed in s45 can be made such as clerical errors, or varying or imposing new obligations on water managers.

Declarations

A new section (s 47DA) allows the Minister to make declarations relating to bulk entitlements to take water in a water system, which authorise the taking of water entitled to be taken under a water allocation for the bulk entitlement in a subsequent water season. Taking of water under a declaration is subject to the terms and conditions of the bulk entitlement, as well as those specified in the declaration.

Temporary transfer of bulk entitlements

s 46 is amended to provide for the temporary transfer between authorities of a bulk entitlement, s 46A from an authority to an irrigator, and s 46B from an authority to a person outside Victoria. These authorise the assignee to take the assigned water from the date specified in the assignment.

Qualified rights in times of water shortage

New s 33AAD allows the Minister to impose conditions or duties on the holder of a bulk entitlement where the entitlement has been qualified, in relation to:

• monitoring the impacts of the bulk entitlement qualification
• actions and works programs for mitigating adverse effects on the maintenance of the environmental water reserve, or on the holder of any other entitlement, license or right under the Act
• requiring payments to be made to authorities, eg to reimburse the authority for carrying out a program of works

Under the Water Act, the term ‘water allocation’ is defined in relation to environmental entitlements and water shares. The amendments add bulk entitlements to the definition.

Further, the definition of environmental entitlement now includes a provision that if no seasonal determination is made, water allocation means the water available to be taken in any water season under the terms of the entitlement.

New s 48MA allows the Minister to make a declaration authorising the application of water under an environmental entitlement to be applied in a subsequent water season.

Application of water under this type of declaration is subject to the terms and conditions of the environmental entitlement, and those specified in the declaration.

Amongst other things, the amendments:

• allow the holder of a transfer to receive future water allocations under the water share from the date of transfer or a specified later date (new s 33T). The person holding a limited term transfer is not entitled to receive future allocations until the transfer is recorded in the register
• allow the Minister to prescribe reasons for refusing an application to give a limited term transfer or assign a water application
• provide that, on the division of a water share under s 33Y, any applicable limited term transfer will continue to apply to new shares issued if the old is cancelled. Or, if a share is varied and new shares subsequently issued, the transfer will apply to the varied and new shares (new s 33Y(4))
• alter s 33F by providing that a water share allows water to be taken under the water allocation during the water season for which the allocation is allocated. Authorisation to carry over the water allocation comes into effect via a provision which enables the Minister to make a declaration of carry over from the present to a subsequent water season
• provide that the sale of a water share by an authority to recover fees under s 279D does not affect the rights of a holder of a limited term transfer

Amongst other things, the amendments:

• clarify that the Minister is the person responsible for establishment and maintenance of the Register, whilst the Registrar is responsible for establishment and maintenance of the records and information relating to water shares (s 84C)
• provide that addresses be searchable under the Register, thus allowing the owners of shares to be identified. Registrants have the right to apply for their personal information not to be released under certain circumstances (s 84X(2) is repealed)
• provide that the details of the sale of unallocated water are given to the relevant authority to be recorded in the register (s 47D(5)(d))
• enable the recording of a transfer of ownership or limited term transfer of water shares for non-monetary consideration (s 84ZG)
• provide that the legal personal representative of a deceased estate may lodge a document with the Registrar for recording of the transmission of ownership of a limited term transfer (not just a water share) (s 84K). Also, s 84L enables the legal personal representative and survivor/s of a limited term transfer to be recorded
• provide for the legal personal representative of a deceased mortgagee to be recorded (allowing the representative to exercise the rights of the mortgagee) (s 84K)

• View the Water Amendment (Entitlements) Act 2010 (Vic)
• Read the Explanatory Memorandum, explaining important aspects of the amending Act and how it changes the Water Act 1989 (Vic)
• Read the Second Reading Speech