South Australian Bills South Australian Bills[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Renmark Irrigation Trust
Bill 2009
A BILL FOR
An Act to provide for the continuation of the Renmark Irrigation Trust for
the purposes of the management and operation of certain shared infrastructure
for irrigation or drainage purposes in the area around Renmark; to make related
amendments to the Natural Resources Management Act 2004; to repeal
the Renmark Irrigation Trust Act 1936; and for other
purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
Part 2—Constitution of trust
Division 1—Continuation of
trust
4 Continuation of trust
5 Rules
6 Manner in which
contracts may be made
Division 2—Members
7 Members
8 Rights and
liabilities of membership
9 Calling of meetings
10 Procedures at
meetings
11 Voting at meetings
Part 3—Management of trust
Division 1—Board of management
12 Board of
management
13 Appointment of directors, term of office and
remuneration
14 Disclosure of interest
15 Members' duties of honesty, care
and diligence
16 Validity of acts and immunity of members
17 Presiding
member and deputy presiding member
18 Proceedings
19 Delegation
Division 2—Accounts and audit
20 Accounts to
be kept
21 Preparation of financial statements
22 Accounts etc to be laid
before annual general meeting
Division
3—Committees
23 Committees
Part 4—Functions and powers of trust
Division 1—Functions of trust
24 Functions
of trust
Division 2—Powers of trust
25 Powers of
trust
26 Further powers of trust
27 Delivery of water or supply of
drainage to other persons
28 Supply or delivery of water for other
purposes
29 Drainage of other water
Division 3—Irrigation rights, water entitlements and
trading
30 Fixing of irrigation rights
31 Surrender or transfer of
water available under irrigation rights
32 Surrender or transfer of
irrigation rights
33 Transformation of irrigation rights
34 Trust may
determine to devolve water licence
35 Promotion of water trades
Division 4—Other matters
36 Power to
restrict supply or to reduce water made available
37 Power of
delegation
38 Appointment of authorised officers
39 Powers of authorised
officers
40 Hindering etc persons engaged in the administration of this
Act
Part 5—Protection and facilitation of
systems
41 Protection and facilitation of systems
Part 6—Charges for irrigation and
drainage
Division 1—Declaration of
charges
42 Charges
43 Declaration of water supply
charges
44 Minimum amount
45 Drainage charge
46 Special
rate
47 Determination of area for charging
purposes
48 Interest
49 Notice of resolution for charges
50 Minister's
approval required
51 Related matters
Division 2—Recovery of charges
52 Liability
for charges
53 Recovery rights
54 Sale of land for non-payment of
charges
55 Trust may remit interest and discount charges
Part 7—Financial provisions
56 Trust's power
to borrow etc
Part 8—Dissolution of trust
57 Dissolution
on application
58 Dissolution on Minister's initiative
59 Disposal of
property on dissolution
Part 9—Appeals
60 Appeals
61 Decision may
be suspended pending appeal
62 Appeal against proposal to dissolve
trust
63 Constitution of Environment, Resources and Development
Court
Part 10—Miscellaneous
64 Protection from
liability
65 Division of land
66 False or misleading
information
67 Protection of irrigation system etc
68 Unauthorised use of
water
69 Offences by bodies corporate
70 General defence
71 Proceedings
for offences
72 Evidentiary provisions
73 Service etc of
notices
74 Certain land vested in trust in fee simple
75 Power of trust to
construct infrastructure across roads
76 Excluded
matters
77 Regulations
78 Expiry of Act
Schedule 1—Related amendments, repeals and
transitional provisions
Part 1—Preliminary
1 Amendment
provisions
Part 2—Amendment of Natural Resources Management
Act 2004
2 Insertion of section
169B
169B Interaction with Renmark Irrigation Trust
Act 2009
Part 3—Repeal of Act
3 Repeal of
Act
Part 4—Transitional
provisions
4 Interpretation
5 Members
6 Presiding member and
deputy presiding member
7 Directors
8 Resolutions
9 Irrigation
rights
10 Charges and rates
11 Other provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Renmark Irrigation Trust
Act 2009.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the Acts Interpretation Act 1915 does not
apply to this Act or a provision of this Act.
(1) In this Act, unless the contrary intention appears—
authorised officer means a person for the time being
appointed to be an authorised officer under this Act;
board of management or board means the board of
management of the trust;
channel includes a watercourse;
charging period means the period in relation to which the
trust has declared a water supply charge;
Commonwealth water rules means any rules under Part 4 of the
Water Act 2007 of the Commonwealth;
conveyance water means the water necessary to support the
delivery of water through an irrigation system;
council means a council constituted under the Local
Government Act 1999;
director means a person holding office as a member of the
board of management of the trust;
drain includes to pump water from low lying land;
drainage system means a system of channels, pipes,
structures, fittings and equipment used in the drainage of irrigation water from
land and includes a tank, pond, dam or other facility for holding water that is
connected to such a system;
drainage system provided by a landowner means those parts of
a drainage system—
(a) that have been provided by a landowner, or a predecessor of a
landowner; or
(b) in relation to which a landowner, or a predecessor of a landowner, has
assumed responsibility for maintenance; or
(c) that a landowner is liable to maintain pursuant to an agreement or
arrangement with the trust;
drainage system provided by the trust means those parts of a
drainage system that are not parts of the drainage system provided by a
landowner;
irrigation right means an entitlement fixed by the trust
under Part 4 Division 3;
irrigation system means a system of channels, pipes,
structures, fittings and equipment used in the collection and delivery of water
for irrigating land and includes a tank, pond, dam or other facility for holding
water that is connected to such a system;
irrigation system provided by a landowner means those parts
of an irrigation system—
(a) that have been provided by a landowner, or a predecessor of a
landowner; or
(b) in relation to which a landowner, or a predecessor of a landowner, has
assumed responsibility for maintenance; or
(c) that a landowner is liable to maintain pursuant to an agreement or
arrangement with the trust;
irrigation system provided by the trust means those parts of
an irrigation system that are not parts of the irrigation system provided by a
landowner;
irrigation water means water supplied or delivered through
the use of an irrigation system provided by the trust for irrigating
land;
land includes an interest in land;
landowner means an owner or occupier of land;
local newspaper, in relation to a notice that relates to the
trust, means a newspaper circulating in the locality in which an irrigation or
drainage system provided by the trust is situated;
owner of land means—
(a) in relation to land alienated from the Crown by grant in fee
simple—the holder of the fee simple;
(b) in relation to land held under a Crown lease or licence—the
lessee or licensee;
(c) in relation to land held under an agreement to purchase from the
Crown—the person entitled to the benefit of the agreement;
presiding member—see section 17;
public notice means a notice published in a local
newspaper;
serviced property means land—
(a) that is used to carry on the business of primary production and is
managed as a single undertaking for the purpose of carrying on that business;
and
(b) that is connected to an irrigation or drainage system provided by the
trust under this Act;
trust means the Renmark Irrigation Trust;
voting member means a member of the trust who is entitled to
vote at meetings of the trust;
watercourse means a river, creek or other natural watercourse
(whether modified or not);
water licence means a water licence under the Natural
Resources Management Act 2004 entitling the holder to take water from a
watercourse, lake or well.
(2) If an irrigation or drainage system extends to a point on land or on,
or near the boundary of, land and incorporates a valve, slide gate, sluice,
entry sump or other similar fitting at that point through which irrigation water
can be supplied to the land or water can be drained from the land, the land will
be taken to be connected to the irrigation or drainage system.
(3) If the trust reads a meter within 14 days before or after the end
of a charging period, the quantity of water supplied to the land during that
period and the next succeeding charging period will be determined on the
assumption that the reading had been taken on the last day of the first
mentioned charging period.
(4) For the purposes of this Act, 21 days notice of an intention to
propose a resolution of the trust will be taken to have been given if
21 days or more before the resolution is passed written notice is given to
every member of the trust—
(a) setting out the text of the proposed resolution; and
(b) specifying the time and place of the meeting at which it is proposed
to move the resolution.
Division
1—Continuation of trust
(1) The Renmark Irrigation Trust continues as the Renmark Irrigation
Trust.
(2) The trust—
(a) continues as a body corporate; and
(b) has perpetual succession and a common seal; and
(c) can sue and be sued in its corporate name; and
(d) has the functions and powers assigned or conferred by or under this or
any other Act.
(1) The trust may have a set of rules relating to the membership,
management or operations of the trust.
(2) A set of rules of the trust—
(a) must comply with any prescribed requirements; and
(b) must not contain any provision that is contrary to or inconsistent
with this Act; and
(c) may provide for the imposition and payment of application and other
fees by members of the trust (including a fee to be paid by a person if or when
the person ceases to be a member of the trust); and
(d) may provide for or regulate the times at which irrigation water may be
used; and
(e) may provide for other matters to facilitate—
(i) the effective management of an irrigation or drainage system provided
by the trust; or
(ii) the efficient supply, delivery or use of water provided by an
irrigation system provided by the trust; or
(iii) the efficient drainage, management or disposal of water through a
drainage system provided by the trust; and
(f) may provide for such other matters as may be prescribed by the
regulations or expedient for the purposes of the trust.
(3) An alteration to the rules of the trust may be made by ordinary
resolution of the trust unless provision is otherwise made in the rules of the
trust.
(4) Subject to any provision in the rules of the trust or a resolution to
the contrary, an alteration to the rules of the trust comes into force at the
time that the alteration is passed.
(5) The rules of the trust bind the trust and the members of the
trust.
(6) It will not be presumed that a person dealing with the trust, or an
agent of the trust, has notice of the rules of the trust.
(7) The trust must, at the request of the Minister, furnish the Minister
with an up-to-date copy of the rules of the trust within a period specified by
the Minister at the time that the request is made.
Maximum penalty: $500.
6—Manner in which
contracts may be made
(1) Contracts may be made by or on behalf of the trust as
follows:
(a) a contract which, if made between private persons, would be required
to be in writing under seal may be made by the trust under its common
seal;
(b) a contract which, if made between private persons, would be required
to be in writing signed by the parties to be charged may be made on behalf of
the trust in writing by any person acting under its authority, express or
implied;
(c) a contract which, if made between private persons, would be valid
although made by parol only may be made by parol on behalf of the trust by any
person acting under its authority, express or implied.
(2) A contract may be varied or rescinded by or on behalf of the trust in
the same manner as it is authorised to be made.
(1) The persons who are members of the trust on the commencement of this
Act continue as members of the trust.
(2) Other persons who carry on the business of primary production may be
admitted as members of the trust by resolution of the trust or as provided by
the rules of the trust.
(3) A person ceases to be a member of the trust in any of the following
circumstances or as otherwise provided by this Act:
(a) if the trust resolves that the membership should be
discontinued—
(i) on the ground that the member has ceased on a permanent basis to carry
on the business of primary production that gives rise to his or her entitlement
to membership; or
(ii) on any other reasonable ground determined by the trust;
(b) if the member resigns;
(c) on death (subject to any provision made by the trust or by law for a
legal personal representative of the estate of a deceased member to continue to
exercise the rights or to manage the business of the deceased member);
(d) in the case of a member that is a body corporate—if the body is
dissolved.
(4) The presiding member of the board will be the presiding member of the
trust and the deputy presiding member of the board (if any) will be the deputy
presiding member of the trust.
(5) The deputy presiding member of the trust may act as the presiding
member in the absence of the presiding member or during a vacancy in the office
of presiding member.
(6) If there is no deputy presiding member, a person selected by the board
may act as the presiding member in the absence of the presiding member or during
a vacancy in the office of presiding member.
8—Rights and
liabilities of membership
(1) Membership of the trust does not confer on a member, except as may be
provided by this Act, any right, title or interest in any real or personal
property of the trust.
(2) Except as provided by this Act, a member of the trust is not liable to
contribute towards the payment of the debts and liabilities of the trust or the
costs, charges and expenses of a winding up of the trust.
(1) A meeting of the trust may be called at any time by the presiding
member, by the board of the trust, or by at least 10% of the voting members of
the trust.
(2) The presiding member must call a meeting of the trust (the annual
general meeting) at least once in each year.
(3) At least 7 days written notice specifying the time and place of
each meeting must be given to every member of the trust (subject to any other
requirements under another provision of this Act).
(1) The presiding member will preside at meetings of the trust or, in his
or her absence, a member chosen by the members present will preside.
(2) A quorum for a meeting of the trust is—
(a) one-third of the voting members of the trust or 10 voting members
whichever is the smaller number; or
(b) such other number as the trust may from time to time
determine.
(3) When determining whether a quorum is present at a meeting, both voting
members who are present at the meeting and those who are represented at the
meeting for the purposes of voting will be counted.
(4) Subject to this Act, a resolution will be carried if the value of the
votes supporting it exceeds the value of the votes against it but if the values
are equal the resolution will be carried if it is supported by the person
presiding at the meeting.
(5) 21 days notice must be given of a resolution that varies or
revokes a decision made by resolution of the trust within the preceding
12 months.
(6) Subject to this Act, the trust may determine its own
procedures.
(7) The trust must keep minutes of its proceedings.
(1) Subject to this section, a member of the trust is entitled to vote at
meetings of the trust.
(2) A member may nominate another person to attend and vote at meetings on
his or her behalf.
(3) If 2 or more persons are members of the trust with respect to the
same undertaking concerned with carrying on the business of primary production,
a person must be nominated by them all to vote.
(4) A nomination referred to in subsections (2) and (3) must be made
by written notice to the trust and may be revoked by the member, or all of the
members, by subsequent written notice to the trust.
(5) If a person who is not a member of the trust has been nominated by a
member or members to attend and vote at a meeting of the trust, that person must
be regarded as a member of the trust for the purposes of proceedings at the
meeting.
(6) Subject to subsection (7), the values of votes at meetings of the
trust will be in proportion to the respective water allocations to which the
members of the trust are entitled at any particular time on account of either or
both of the following:
(a) irrigation rights held by members of the trust;
(b) water licences held by members of the trust.
(7) Despite a preceding subsection, if the trust resolves to apply this
subsection, then the value of votes at a meeting of the trust will be set in
some other manner determined by the trust.
(8) A determination under subsection (7) may be based on or include
criteria that exclude a member from holding an entitlement to vote if the
member—
(a) does not own or occupy land to which irrigation water is supplied or
delivered that has an area that is at least equal to a minimum area determined
by the trust for the purposes of this subsection;
(b) does not have an entitlement to the supply or delivery of water that
is at least equal in volume to a minimum volume determined by the trust for the
purposes of this subsection.
(9) The basis for determining the values of votes can be changed but only
by resolution of the trust of which 21 days notice must be given.
(10) A resolution under subsection (6) or (7) must be supported by
80% or more of the number of votes cast at a meeting of the trust.
Division 1—Board
of management
(1) The trust will appoint a board of management of the trust to carry out
the day to day operations of the trust and to manage its general
affairs.
(2) The board will consist of 7 members of the trust (who will be called
directors).
13—Appointment of
directors, term of office and remuneration
(1) Subject to this section, a director will be elected at the annual
general meeting of the trust.
(2) A member of the trust is not eligible for election as a director if
the member—
(a) is an undischarged bankrupt or is taking the benefit of a law for the
relief of insolvent debtors; or
(b) is in arrears for a period of 6 months or more with respect to the
payment of any water supply or drainage charge, or special rate, under Part 6;
or
(c) is an employee of the trust; or
(d) is a member who is not entitled to vote at a meeting of the trust;
or
(e) is a member who is not entitled to be a member of the board under the
rules of the trust or on account of a resolution of the trust.
(3) Subject to subsections (4) and (5), a director will hold office
for a term of 2 years (with each period between the annual general meetings
of the trust to be taken to be 1 year) and, at the expiration of a term of
office, will be eligible for re-election.
(4) The office of a director becomes vacant if the person holding the
office—
(a) dies; or
(b) completes a term of office and is not re-elected; or
(c) resigns by written notice to the board; or
(d) ceases to be eligible for election as a member of the board under
subsection (2); or
(e) is convicted of an indictable offence; or
(f) is found guilty of an offence against section 14; or
(g) is removed from office by resolution of the trust.
(5) If a casual vacancy occurs in the office of a director, the remaining
members of the board may appoint a person to the vacant office for the balance
of the former director's term of office.
(6) A director is entitled to remuneration, allowances and expenses
determined or approved by the trust.
(1) A director who has a direct or indirect personal or pecuniary interest
in a matter under consideration by the board—
(a) must, as soon as he or she becomes aware of the interest, disclose the
nature and extent of the interest to the board; and
(b) must not take part in any deliberations or decision of the board on
the matter and must be absent from the room when any such deliberations are
taking place or decision is being made.
Maximum penalty: $10 000.
(2) If a director discloses an interest in a contract or proposed contract
and complies with the other requirements of this section—
(a) the contract is not liable to be avoided by the board; and
(b) the director is not liable to account for profits derived from the
contract.
(3) If a director fails to make a disclosure of interest or fails to
comply with the other requirements of this section in respect of a proposed
contract, the contract is liable to be avoided by the board.
(4) A contract may not be avoided under subsection (3) if a person
has acquired an interest in property the subject of the contract in good faith
for valuable consideration and without notice of the contravention.
(5) If, in the trust's opinion, the holding of a particular interest is
not consistent with the proper discharge of the duties of a member of the board,
the trust may direct the member either to divest himself or herself of the
interest or to resign from the board (and non-compliance with the direction
constitutes a ground for removal of the member from the board).
(6) A disclosure under this section must be recorded in the minutes of the
board.
(7) This section does not apply to an interest that a director shares in
common with all or a substantial proportion of the members of the
trust.
15—Members' duties
of honesty, care and diligence
(1) A director must at all times act honestly in the performance of
official functions.
Maximum penalty: $10 000.
(2) A director must at all times act with reasonable care and diligence in
the performance of official functions.
Maximum penalty: $10 000.
(3) A director or former director must not make improper use of
information acquired because of his or her official position to gain, directly
or indirectly, a personal advantage for himself, herself or another, or to cause
detriment to the trust.
Maximum penalty: $10 000.
(4) A director must not make improper use of his or her official position
to gain, directly or indirectly, a personal advantage for himself, herself or
another, or to cause detriment to the trust.
Maximum penalty: $10 000.
(5) This section is in addition to, and does not derogate from, other
laws.
16—Validity
of acts and immunity of members
(1) An act or proceeding of the board is not invalid by reason only of a
vacancy in its membership or a defect in the appointment of a
director.
(2) A director incurs no civil liability for an honest act or omission in
the performance or exercise, or purported performance or exercise, of the
director's or the board's functions, duties or powers under this or any other
Act.
(3) The immunity conferred by subsection (2) does not extent to
culpable negligence.
(4) A civil liability that would, but for this section, attach to a member
attached instead to the trust.
17—Presiding
member and deputy presiding member
(1) The directors must, at the first meeting of the board held after an
annual general meeting of the trust, select 1 of their number to be the
presiding member of the board (and therefore of the trust).
(2) The directors may also select 1 of the number to be the deputy
presiding member of the board (and therefore of the trust).
(3) Subject to subsections (4) and (5), a person selected under
subsection (1) or (2) will hold office until the conclusion of the next
annual general meeting of the trust held after his or her selection (and is
eligible for re-appointment if he or she continues or is re-elected as a member
of the board).
(4) A person selected under this section may be removed from office by
resolution of the board.
(5) The office of a person selected under this section becomes vacant
before an annual general meeting of the trust if the person holding the
office—
(a) dies; or
(b) resigns by written notice to the board; or
(c) ceases to be a member of the board or of the trust; or
(d) is removed from office under subsection (4).
(6) If a casual vacancy occurs in the office of the presiding member or
deputy presiding member, the members (or remaining members) of the board may
appoint another of their number to the vacant office (and to hold office until
the conclusion of the next annual general meeting of the trust).
(1) A quorum of the board consists of 4 directors.
(2) The presiding member will preside at meetings of the board or, in the
absence of the presiding member, a member chosen by those present will
preside.
(3) A decision carried by a majority of the votes cast by directors at a
meeting is a decision of the board.
(4) Each director present at a meeting of the board has 1 vote on any
question arising for a decision and, if the votes are equal, the member
presiding at the meeting may exercise a casting vote.
(5) A telephone or video conference between directors constituted in
accordance with procedures determined by the board will, for the purposes of
this section, be taken to be a meeting of the board at which the participating
members are present.
(6) A resolution of the board—
(a) of which prior notice was given to all directors in accordance with
procedures determined by the board; and
(b) in which a majority of the directors expressed their concurrence in
writing,
will be taken to be a decision of the board made at a meeting of the
board.
(7) The board must have accurate minutes kept of its
proceedings.
(8) At the request of a member of the trust, the board must provide the
member with a copy of the minutes of the proceedings of the board for a meeting
held on a specified day or for meetings held over a specified period.
(9) The board may set a fee that must be paid before minutes are supplied
under subsection (8).
(10) Subject to this Act, the board may determine its own
procedures.
(1) The board of management may delegate a function or power of the
board—
(a) to a director; or
(b) to another person (including the person for the time being holding or
occupying a particular position) or body.
(2) A delegation under this section—
(a) must be made by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the board to act in any matter;
and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
The trust must cause proper accounts to be kept of its financial
affairs.
21—Preparation of
financial statements
(1) The trust must, as soon as practicable after the end of each financial
year, cause financial statements in respect of that financial year to be
prepared in accordance with recognised accounting standards and cause the
statements to be audited.
(2) An audit must be carried out by—
(a) a registered company auditor; or
(b) a firm of registered company auditors; or
(c) a member of the Australian Society of Certified Practising
Accountants; or
(d) a member of The Institute of Chartered Accountants in Australia;
or
(e) a member of the National Institute of Accountants.
(3) A member of the trust must not be appointed as auditor of the accounts
of the trust.
(4) An auditor of the trust has a right of access at all reasonable times
to the accounts and accounting records of the trust and is entitled to require
from any officer or employee of the trust or any other person such information
and explanations as he or she requires for the purposes of the audit.
(5) An officer or employee of the trust or other person must not, without
lawful excuse—
(a) refuse or fail to allow an auditor access, for the purposes of an
audit, to any accounts or accounting records of the trust in his or her custody
or control; or
(b) refuse or fail to give any information or explanation as and when
required by an auditor; or
(c) otherwise hinder, obstruct or delay an auditor in the exercise or
performance of a power or function of the auditor.
Maximum penalty: $5 000.
(6) An auditor must, on the completion of the audit, prepare a report on
the audit.
22—Accounts
etc to be laid before annual general meeting
(1) At each annual general meeting of the trust, the trust must lay before
the meeting—
(a) a copy of the audited financial statements of the trust for the
previous financial year and a copy of the auditors report; and
(b) a report prepared by the trust on the operations of the trust in the
previous financial year.
(2) At the request of the Minister or any member of the trust, the trust
must provide the Minister or member with a copy of the audited financial
statements, the auditors report and the report prepared by the trust in respect
of the financial year to which the request relates.
(1) The trust may establish committees (which may, but need not, consist
of or include members of the trust) to advise the trust on any aspects of its
functions, or to assist it in the performance of its functions.
(2) The board of management may establish committees (which may, but need
not, consist of or include members of the board of management) to advise the
board on any aspects of its functions, or to assist it in the performance of its
functions.
Part
4—Functions and powers of trust
(1) The trust has the following functions:
(a) to provide, maintain, operate and manage an irrigation system or
irrigation systems;
(b) to provide, maintain, operate and manage a drainage system or drainage
systems;
(c) such other functions as are specified or prescribed by or under this
or any other Act.
(2) The trust may operate—
(a) on the basis that some or all of the water supplied through an
irrigation system managed by the trust will be supplied under a water licence
held by the trust; or
(b) on the basis that the trust will deliver water to members of the trust
for the purposes of water licences held by the members (rather than under a
water licence held by the trust).
(3) Subsection (2)—
(a) does not prevent the trust from delivering water to any person who
holds a water licence independently of the trust; and
(b) does not prevent the trust from holding 1 or more water licences in
order—
(i) to provide or manage any conveyance water; or
(ii) to provide or manage any water for the purposes of other services
provided by the trust.
(4) The trust may, in connection with the operation of
subsections (1), (2) and (3), set terms and conditions associated
with—
(a) the use of any irrigation system or drainage system provided by the
trust;
(b) the supply or delivery of water by the trust.
(5) The trust must—
(a) in determining terms or conditions on which water is supplied or
delivered to, or drained from, land; or
(b) in holding or dealing with any water licence,
ensure—
(c) that it complies with the other provisions of this Act; and
(d) that it is able to meet any requirements imposed under the Natural
Resources Management Act 2004; and
(e) that it is not acting in breach, or imposing any requirement that
would result in a person acting in breach, of any duty or other requirement
prescribed by or under the River Murray Act 2003; and
(f) that it complies with any requirements imposed by or under the
Water Act 2007 of the Commonwealth.
(6) The trust must, in the performance of its functions, take all
reasonable steps to ensure that it operates in a financially responsible
manner.
(7) Without limiting subsection (6), the trust must seek to raise and
maintain adequate capital to provide for infrastructure maintenance, replacement
and improvements and, depending on the scope of its operations and plans,
extensions and expansions.
(1) In order to carry out its functions the trust may—
(a) construct or erect channels, embankments, roads, buildings or
structures, tanks, ponds, dams or other facilities for holding water or any
other works; and
(b) lay pipes; and
(c) install and operate pumps and other equipment; and
(d) control the flow of water in an irrigation or drainage channel or
pipe; and
(e) acquire any land; and
(f) inspect, maintain, repair, renew or replace any channel, pipe,
building, structure, fitting, equipment, tank, pond, dam or other facility
forming part of the irrigation or drainage system provided by the trust;
and
(g) clear any channel, pipe, fitting, equipment, tank, pond, dam or other
facility forming part of the irrigation or drainage system provided by the
trust; and
(h) inspect any channel, pipe, building, structure, fitting, equipment,
tank, pond, dam or other facility forming part of the irrigation or drainage
system provided by a landowner; and
(i) extract and remove soil or minerals from any land after first
consulting the owner of the land and having regard to his or her views;
and
(j) inspect, examine or survey land in connection with the planning,
design or construction of an irrigation or drainage system, or extensions to or
alterations of, an irrigation or drainage system and for that purpose the trust
may—
(i) fix posts, stakes or other markers on the land; and
(ii) dig trenches or sink test holes on the land to determine the nature
of the top soil and underlying strata; and
(iii) remove samples of any material from the land for analysis;
and
(k) enter or occupy any land for the purpose of exercising any powers of
the trust under this Act; and
(l) exercise any other powers that are incidental to the trust's powers or
that are reasonably necessary for carrying out the trust's functions.
(2) Subsection (1) does not limit or derogate from the provisions of
any other Act (including so as to require a permission, consent or authority in
order to take any step or to engage in any activity).
(3) The trust may acquire land pursuant to a contract with the owner of
the land or pursuant to the Land Acquisition Act 1969.
(4) The trust must not acquire land pursuant to the Land Acquisition
Act 1969 without the written approval of the Minister.
(5) The trust may grant a lease or licence over any land in its ownership
or possession.
(6) When entering or occupying land under this section, the trust must
cause as little inconvenience to other users of the land as is reasonably
practicable.
(1) The trust may, pursuant to an agreement with the owner or occupier of
any serviced property, construct or extend an irrigation system or a drainage
system on the property for the distribution or drainage of water.
(2) The trust may, in order to assist its members, purchase irrigation
equipment, components and tools for resale to its members.
27—Delivery of
water or supply of drainage to other persons
The trust may enter into an agreement with a person who is not a member of
the trust—
(a) to deliver water for the purpose of irrigating land; or
(b) to drain water from land,
by means of an irrigation system or drainage system provided and managed by
the trust.
28—Supply or
delivery of water for other purposes
(1) In addition to supplying or delivering water for other purposes, the
trust may supply or deliver water for domestic or other purposes under an
agreement with any other person.
(2) The trust must not supply or deliver water for domestic purposes if a
supply of water under the Waterworks Act 1932 is available for those
purposes.
In addition to draining irrigation water, the trust may drain any other
water from land.
Division
3—Irrigation rights, water entitlements and trading
30—Fixing of
irrigation rights
(1) This section applies if the trust holds 1 or more water licences
for the purposes of supplying water to its members (being members who rely on
the trust to supply water under a water licence held by the trust rather than by
the member).
(2) If this section applies, the trust must fix an entitlement (an
irrigation right) in respect of each member of the trust who is to receive water
on account of a water licence held by the trust.
(3) An irrigation right will be fixed by resolution of the
trust.
(4) An irrigation right must be fixed on a fair and equitable basis after
having regard to—
(a) the nature or type of crops growing on relevant land; and
(b) such other matters considered relevant by the trust.
(5) An irrigation right—
(a) may be expressed as a volume or units (subject to the operation of the
Natural Resources Management Act 2004 and any reduction in the
amount of water that may be available to the trust under that Act); or
(b) may be constituted in some other manner authorised by the
regulations.
31—Surrender or
transfer of water available under irrigation rights
(1) The whole or any proportion of water available under an irrigation
right held by a member of the trust (the relevant member) is
capable of being—
(a) surrendered by the relevant member to the trust for such sum of money
or other consideration as may be agreed between the trust and relevant
member;
(b) transferred by the relevant member to another member of the trust for
such sum of money or other consideration as may be agreed between the
members;
(c) transferred by the trust acting at the request of the relevant member
to a person who is not a member of the trust.
(2) The following provisions apply in connection with the operation of
subsection (1):
(a) if a relevant member notifies the trust that the member wishes to
surrender water under subsection (1)(a), the trust must take reasonable
steps to come to a reasonable agreement on a sum of money or other consideration
to be paid under that subsection;
(b) a relevant member must not transfer water under subsection (1)(b)
without first notifying the trust of the proposed transfer in accordance with
any requirements specified by the trust;
(c) the trust must comply with a request under subsection (1)(c)
within a reasonable time (but is not to comply with such a request if the
transfer cannot take effect on account of the operation of the Natural
Resources Management Act 2004).
32—Surrender or
transfer of irrigation rights
(1) An irrigation right held by a member of the trust (the
relevant member) is capable of being—
(a) surrendered by the relevant member to the trust for such sum of money
or other consideration as may be agreed between the trust and the relevant
member;
(b) transferred by the relevant member to another member of the trust for
such sum of money or other consideration as may be agreed between the
members.
(2) The following provisions apply in connection with the operation of
subsection (1):
(a) if a relevant member notifies the trust that the member wishes to
surrender an irrigation right under subsection (1)(a), the trust must take
reasonable steps to come to a reasonable agreement on a sum of money or other
consideration to be paid under that subsection;
(b) a relevant member must not transfer an irrigation right under
subsection (1)(b) without first notifying the trust of the proposed
transfer in accordance with any requirements specified by the trust.
33—Transformation
of irrigation rights
(1) The whole or a part of an irrigation right held by a member of an
irrigation trust (the relevant member) may be permanently
transformed into a water licence held by the relevant member if—
(a) the member applies to the trust for the transformation in accordance
with any requirements specified by the trust (including as to the payment of a
specified application fee); and
(b) the member provides any security required by the trust; and
(c) the transformation so as to create a water licence held by the member
is able to take effect under the Natural Resources Management
Act 2004 and the member, in seeking the water licence, complies with
any relevant requirement under that Act.
(2) Any requirement specified under subsection (1)(a) or security
required under subsection (1)(b) must be consistent with the operation of
any Commonwealth water rules.
(3) Any security required under subsection (1)(b) must be reasonable
in the circumstances after taking into account the interests of the trust and
any other person who has an interest in the water licence held by the trust (but
must not unreasonably restrict or prevent trading in water
entitlements).
(4) If a water licence is to be issued on account of an application under
this section—
(a) an entitlement to an allocation of water that corresponds to the
irrigation right held by the relevant member will arise in connection with the
licence; and
(b) a variation must be made to the water licence held by the trust, and
to any other related entitlement,
subject to and in accordance with the Natural Resources Management
Act 2004 (and subject to taking into account the water available under
the provisions of that Act).
(5) Any process or outcome envisaged by this section will take effect
subject to any Commonwealth water rules.
34—Trust
may determine to devolve water licence
(1) The trust may, by resolution, determine to operate on the basis that
all irrigation rights held by members of the trust will be permanently
transformed into water licences held by the respective members (so that the
trust will deliver water to members for the purposes of water licences held by
the members (rather than under a water licence held by the trust after taking
into account any requirements of the trust in relation to conveyance
water)).
(2) If a water licence held by the trust is subject to an interest of
another person registered or recorded in relation to the licence under the
Natural Resources Management Act 2004, the trust must not pass a
resolution under subsection (1) without the consent of that
person.
(3) The processes and outcome envisaged by subsection (1), and the
requirement to obtain any consent under subsection (2), will take effect
subject to—
(a) any Commonwealth water rules; and
(b) the requirements of the Natural Resources Management
Act 2004 relating to the issue of water licences, water allocations and
other forms of entitlements; and
(c) any provision made by the regulations (which may include the
specification of circumstances where a consent is not required under
subsection (2)).
(4) Subject to the operation of the preceding subsections, if a resolution
is made under subsection (1), each irrigation right held by a member will
be permanently transformed into a water licence held by the member.
(5) Without limiting subsection (3), an irrigation right held by a
member of the trust will not be capable of being transformed into a water
licence if the Minister responsible for the administration of the Natural
Resources Management Act 2004 determines that a water licence should
not be granted on a ground that applies under Chapter 7 Part 3 Division 1 of
that Act.
Without limiting the operation of any other provision of this Act, the
trust must not unreasonably restrict or prevent any activity contemplated by
this or any other Act (including the Water Act 2007 of the Commonwealth)
that will support the efficiency and scope of water trades.
36—Power to
restrict supply or to reduce water made available
(1) The trust may—
(a) restrict or suspend the supply or delivery of water; or
(b) reduce the amount of water available under an irrigation
right,
if—
(c) the water that is available to the trust cannot meet the demand;
or
(d) the water that is available to the trust is unsuitable for the purpose
for which it is to be supplied; or
(e) the trust is acting in response to a reduction in a water allocation
under the Natural Resources Management Act 2004; or
(f) the trust is unable to provide sufficient conveyance water in
connection with the operation of an irrigation system; or
(g) the owner or occupier of the land in respect of which the action is
taken has—
(i) failed to pay charges or interest on charges under this Act;
or
(ii) contravened or failed to comply with a term or condition on which the
trust supplies or delivers water to, or drains water from, the land;
or
(iii) contravened or failed to comply with a condition imposed under this
Act; or
(iv) contravened or failed to comply with a provision of this Act or with
a direction of the trust under this Act; or
(h) the trust is unable to dispose of water draining into its drainage
system because of the degraded quality of the water.
(2) Subject to subsection (3), the trust may, in taking action under
subsection (1), reduce the amount of water available by different amounts
or proportions according to such factors as the trust thinks fit.
(3) A restriction or reduction in the amount of water supplied or
delivered by the trust in the circumstances envisaged by subsection (1)(e)
must, insofar as it applies to the members of the trust, be in proportion to the
amount of the reduction under the Natural Resources Management
Act 2004.
(4) The trust incurs no civil liability in respect of action taken by it
under this section.
(1) Subject to subsection (2), the trust may delegate a function or
power of the trust under this Act—
(a) to the board of management of the trust; or
(b) to a particular person or other body.
(2) The trust may not delegate a power under section 11 or
34.
(3) A delegation under this section—
(a) must be made by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the trust to act in any matter;
and
(d) is revocable at will.
(4) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
38—Appointment of
authorised officers
(1) The trust may appoint a person to be an authorised officer under this
Act.
(2) An authorised officer appointed under this Act must be issued with an
identity card—
(a) containing the person's name and a photograph of the person;
and
(b) stating that the person is an authorised officer for the purposes of
this Act.
(3) The identity card must be issued as soon as is reasonably practicable
after the appointment is made (but an authorised officer is not prevented from
exercising powers under this Act just because an identity card is yet to be
issued).
(4) An authorised officer must produce evidence of his or her appointment
by showing a copy of his or her notice of appointment, or by showing his or her
identity card for inspection, before exercising the powers of an authorised
officer under this Act in relation to any person.
(5) For the purposes of subsection (4), an authorised officer who
produces a copy of his or her notice of appointment is not required to produce
an identity card and vice versa.
39—Powers of
authorised officers
An authorised officer may, at any reasonable time, exercise any of the
following powers in relation to the operations of the irrigation trust by whom
he or she has been appointed:
(a) enter any land for the purpose of exercising his or her powers under
this section;
(b) inspect any material on land that the authorised officer believes to
be of a kind that has entered, or may enter, an irrigation or drainage system of
the trust and take samples of the material;
(c) inspect any channels, pipes, buildings, structures, fittings,
equipment, tanks, ponds, dams or other facilities for holding water comprising
part of an irrigation or drainage system or that are used in or in relation to
an irrigation or drainage of land;
(d) take photographs, films or video recordings;
(e) ask any person any question relating to the operation of an irrigation
or drainage system.
40—Hindering etc
persons engaged in the administration of this Act
(1) A person who—
(a) without reasonable excuse hinders or obstructs a person referred to in
subsection (2); or
(b) uses abusive, threatening or insulting language to a person referred
to in subsection (2); or
(c) fails to answer a question put by an authorised officer to the best of
his or her knowledge, information or belief; or
(d) falsely represents by words or conduct, that he or she is an
authorised officer,
is guilty of an offence.
Maximum penalty: $5 000.
(2) SubsectionS (1)(a) and (b) applies for the benefit
of—
(a) a person acting on behalf of the trust;
(b) an authorised officer.
(3) A person is not obliged to answer a question under this Division if
the answer would tend to incriminate him or her of an offence.
Part
5—Protection and facilitation of systems
41—Protection
and facilitation of systems
(1) A person must not—
(a) connect a channel or pipe to an irrigation or drainage system of the
trust; or
(b) place a structure or install equipment in, over or immediately
adjacent to a channel or pipe connected to an irrigation or drainage system of
the trust; or
(c) supply water supplied or delivered to him or her by the trust under
this Act to any other person,
unless he or she does so at the direction, or with the approval, of the
trust.
(2) A person must not use a method of distributing irrigation water in a
manner that is inconsistent with any determination or rule of the
trust.
(3) A person who is a landowner under this Act—
(a) must ensure that irrigation water does not drain or otherwise escape
onto or into adjoining land so as to cause a nuisance to the adjoining
landowner; and
(b) must maintain, and when necessary repair or replace an irrigation or
drainage system provided by the landowner; and
(c) must not block or impede the flow of water in any part of an
irrigation or drainage system except at the direction, or with the approval, of
the trust; and
(d) must, when necessary, clear channels and pipes of an irrigation or
drainage system provided by the landowner; and
(e) must ensure that channels and pipes on his or her land, including
those forming part of an irrigation or drainage system provided by the trust,
are protected from damage that is reasonably foreseeable.
(4) If, in the opinion of the trust, it is necessary or desirable in the
interests of supplying or delivering water efficiently to, or draining water
efficiently from, land, or in order to meet any duty or other requirement under
the Natural Resources Management Act 2004 (including a licence under
that Act) or the River Murray Act 2003, or in order otherwise to
provide for the proper management of water, the trust may by notice served on a
landowner direct the landowner—
(a) to—
(i) construct or erect channels, embankments, structures, tanks, ponds,
dams or other facilities for holding water; or
(ii) lay pipes; or
(iii) install fittings or pumps or other equipment,
on his or her land; or
(b) to widen or deepen channels forming part of an irrigation or drainage
system provided by the landowner, to install fittings or equipment for or in
relation to irrigating the land, or to carry out any other work on the land;
or
(c) to provide a barrier that is impervious to water on the sides and bed
of a channel forming part of an irrigation or drainage system provided by the
landowner; or
(d) to undertake such other act or activity as is specified in the
notice.
(5) The trust may by notice served on a landowner direct the
landowner—
(a) to erect fences to keep stock or other animals away from channels or
pipes on the land; or
(b) to comply with the requirements of 1 or more of the other provisions
of this section.
(6) A notice under subsection (4) or (5) may specify—
(a) the dimensions and gradients of channels, pipes or other works;
and
(b) the dimensions, design, constituent materials and other specifications
of—
(i) the barrier to prevent or reduce seepage of water from a channel;
and
(ii) pipes, structures (including fences) fittings or equipment.
(7) If a person fails to comply with a notice, the trust may enter the
relevant land and take the action specified in the notice and such other action
as the trust considers appropriate in the circumstances and the trust's costs
will be a debt due by the person to the trust.
(8) A person who contravenes or fails to comply with a provision of this
section or of a notice served under subsection (4) or (5) is guilty of an
offence.
Maximum penalty: $20 000.
Expiation fee: $750.
Part
6—Charges for irrigation and drainage
Division
1—Declaration of charges
(1) The trust may impose a water supply charge or charges in relation to
the supply or delivery of water (or both) under this Act in
order—
(a) to recover its costs for providing that service or to enable it to
meet its other liabilities; and
(b) to provide for its maintenance and other costs and to provide for
future capital costs connected with the provision of irrigation systems under
this Act.
(2) The trust may impose a drainage charge or charges in relation to the
drainage or disposal of water (or both) under this Act in order—
(a) to recover its costs for providing that service or to enable it to
meet its other liabilities; and
(b) to provide for its maintenance and other costs and to provide for
future capital costs connected with the provision of drainage systems under this
Act.
(3) The trust may fix different factors as the basis for water supply or
drainage charges in respect of different areas or locations or according to
other differentiating factors determined by the trust.
(4) A water supply charge may include a component for the recovery of
costs and other liabilities in relation to drainage and that component may be
applied generally or on a limited basis and vary according to other
differentiating factors determined by the trust.
43—Declaration of
water supply charges
(1) The trust may, in respect of a financial year or part of a financial
year, by notice published in a local newspaper, declare a water supply charge or
water supply charges based on 1, or a combination of 2 or more, of the
following:
(a) the fact that land is connected to an irrigation system of the
trust;
(b) the volume of water supplied or delivered during the charging period
to which the declaration applies;
(c) the area of the land to be irrigated;
(d) such other factor or factors as the trust thinks fit.
(2) The trust may declare different charges—
(a) in respect of different areas;
(b) for water supplied for irrigation purposes, domestic purposes or other
purposes;
(c) depending on the quality of the water supplied or delivered.
(3) In the case of water supplied for irrigation purposes, the trust may
declare a basic charge in respect of a specific amount of water supplied or
delivered under an irrigation right or water licence and a further charge, or
series of charges, that increase as the volume of water supplied increases over
that amount.
(4) A water supply charge may be declared after the period to which it
relates has commenced.
(5) This section does not limit the operation of
section 42.
(1) The trust may declare a minimum amount that is payable in respect of a
water supply charge.
(2) Payment of the minimum amount must be credited against the water
supply charge.
(1) The trust may, in respect of a financial year or part of a financial
year by notice published in a local newspaper, declare a drainage charge based
on the area of land irrigated or drained or on the basis of the volume of water
supplied or delivered for irrigating the land.
(2) The trust may exempt an owner and occupier of land from payment of
drainage charges if water does not drain from the land into the drainage system
provided by the trust or if the quantity of water that drains into the system is
negligible.
(3) A drainage charge may be declared after the period to which it relates
has commenced.
(4) This section does not limit the operation of
section 42.
(1) The trust may, with the approval of the Minister, in respect of a
financial year or part of a financial year, by notice published in a local
newspaper, declare a special rate or special rates based on 1, or any
combination of 2 or more, of the factors that a water supply charge or drainage
charge would be based.
(2) A special rate may be declared after the period to which it relates
has commenced.
47—Determination
of area for charging purposes
For the purpose of calculating the amount of a water supply charge, a
drainage charge or special rate based on the area of land, the area of the land
will be determined to the nearest one-tenth of a hectare (0.05 of a hectare
being increased to the next one-tenth of a hectare).
(1) The trust may, in fixing a water supply charge, drainage charge or
special rate, declare a rate of interest that will be applied if a charge is not
paid within a period specified by the trust.
(2) A rate of interest must not exceed any rate prescribed by the
regulations.
(3) A period from which interest will be payable must be not less than the
period prescribed by the regulations.
(4) Any interest applied under this section may be simple or compound
interest.
49—Notice of
resolution for charges
The trust must fix the factors on which water supply charges, drainage
charges and special rates are based and the amount of those charges or rates by
resolution of which 21 days notice has been given.
50—Minister's
approval required
(1) If the trust is indebted to the Crown, the Minister or 1 or more
other agencies or instrumentalities of the Crown in an amount that exceeds
$50 000 or in 2 or more amounts that together exceed $50 000, the
trust must not—
(a) declare a water supply charge or drainage charge; or
(b) fix a rate of interest for the late payment of charges,
without first obtaining the Minister's approval.
(2) Non-compliance with subsection (1) does not affect the validity
of a charge or rate of interest declared or fixed by a trust.
(1) Nothing in this Division prevents the trust from entering into an
agreement with a person for the supply or delivery of water, or the drainage of
land, for a cost or at a rate fixed or determined under the agreement (rather
than by the imposition of a charge or rate under this Division).
(2) To avoid doubt, the preceding sections of this Division do not apply
in relation to an amount payable under an agreement under
subsection (1).
(3) The trust must, in acting under this Division, ensure that it complies
with any requirements imposed by or under the Water Act 2007 of the
Commonwealth.
Division
2—Recovery of charges
(1) The following persons are jointly and severally liable for the payment
of charges and rates and interest on charges and rates:
(a) the owner and occupier of the land in respect of which water is
supplied or delivered, or is drained, as the case requires, at the date on which
the charges or rates first became payable;
(b) a person who becomes an owner or occupier of the land after the
charges or rates first became payable but before the liability to pay the
charges or rates and interest is satisfied.
(2) Notice of the amount payable by way of charges or rates, fixing the
date on which the amount becomes payable, must be served on the owner or
occupier of the land in respect of which the charges or rates are
payable.
(3) This section operates subject to—
(a) any Commonwealth water rules; and
(b) the provisions of any agreement between the trust and a person for the
supply or delivery of water, or the drainage of land.
(4) In this section—
charges means water supply and drainage charges and
includes—
(a) charges payable to the trust under an agreement with a person who is
not a member of the trust for the delivery of water to, or the drainage of water
from, the land;
(b) any other amount in which an owner or occupier of land is indebted to
the trust under this Act or under an agreement made under this Act.
(1) Any charges or rates and any accrued interest will be a charge on the
land in respect of which water is supplied or delivered, or is drained, in
accordance with a scheme established by the regulations.
(2) Subsection (1)—
(a) applies subject to any Commonwealth water rules; and
(b) does not apply to any charges (and associated interest) of a
prescribed kind.
(3) In addition, any charges or rates that are not paid in accordance with
a notice under section 52, together with any interest, may be recovered by
the trust as a debt from a person who is liable for the payment of the charges
or rates.
(4) Any action to recover any charges (and interest) as a debt does not
prejudice any action to recover any charges or rates (and interest) as a charge
on land, and vice versa, but any amount sought to be recovered under 1 right
must be adjusted to take into account any amount actually recovered under the
other right.
54—Sale of land
for non-payment of charges
(1) If charges or rates, or interest on charges or rates, are a charge on
land and have been unpaid for 1 year or more, the trust may sell the
land.
(2) Before the trust sells land in pursuance of this section, it must
serve notice on the owner and occupier of the land—
(a) stating the period for which the charges or rates or interest have
been in arrears; and
(b) stating the amount of the total liability for charges or rates and
interest presently outstanding in relation to the land; and
(c) stating that if that amount is not paid in full within 1 month of
service of the notice (or such longer time as the trust may allow), the trust
intends to sell the land for non-payment of the charges or rates or
interest.
(3) A copy of a notice must be served on—
(a) the registered mortgagee or encumbrance of the land (if any);
and
(b) if the land is held from the Crown under a lease, licence or agreement
to purchase—the Minister responsible for the administration of the
Crown Lands Act 1929.
(4) If the outstanding amount is not paid in full within the time allowed
under subsection (2), the trust may proceed to sell the land.
(5) The sale will, except in the case of land held from the Crown under a
lease, licence or agreement to purchase, be by public auction (and the trust may
set a reserve price for the purposes of the auction).
(6) An auction under this section must be advertised on at least
2 separate occasions in a newspaper circulating generally throughout the
State.
(7) If, before the date of the auction, the outstanding amount and the
costs incurred by the trust in proceeding under this section are paid to the
trust, the trust must withdraw the land from auction.
(8) If—
(a) an auction fails; or
(b) the land is held from the Crown under a lease, licence or agreement to
purchase,
the trust may sell the land by private contract for the best price that it
can reasonably obtain.
(9) Any money received by the trust in respect of the sale of land under
this section will be applied as follows:
(a) firstly—in paying the costs of the sale and any other costs
incurred in proceeding under this section;
(b) secondly—in discharging the liability for charges or rates and
interest and any other liabilities to the trust in respect of the
land;
(c) thirdly—in discharging any liability to the Crown for rates,
charges or taxes, or any prescribed liability to the Crown in respect of the
land;
(d) fourthly—in discharging any liabilities secured by registered
mortgages, encumbrances or charges;
(e) fifthly—in discharging any other mortgages, encumbrances and
charges of which the trust has notice;
(f) sixthly—in payment to the owner of the land.
(10) If the owner cannot be found after making reasonable inquiries as to
his or her whereabouts, an amount payable to the owner must be dealt with as
unclaimed money under the Unclaimed Moneys Act 1891.
(11) If land is sold by the trust in pursuance of this section, an
instrument of transfer under the common seal of the trust will operate to vest
title to the land in the purchaser.
(12) The title vested in a purchaser under subsection (11) will be
free of—
(a) all mortgages and charges; and
(b) except in the case of land held from the Crown under lease or
licence—all leases and licences.
(13) An instrument of transfer passing title to land in pursuance of a
sale under this section must, when lodged with the Registrar-General for
registration or enrolment, be accompanied by a statutory declaration made by the
presiding member of the trust stating that the requirements of this section in
relation to the sale of the land have been observed.
(14) If it is not reasonably practicable to obtain the duplicate
certificate of title to land that is sold in pursuance of this section, the
Registrar-General may register the transfer despite the non-production of the
duplicate, but in that event he or she will cancel the existing certificate of
title for the land and issue a new certificate in the name of the
transferee.
(15) A reference in this section to land, or title to land, is, in
relation to land held from the Crown under lease, licence or agreement for
purchase, a reference to the interest of the lessee, licensee or purchaser in
the land.
(16) In this section—
charges means water supply and drainage charges and
includes—
(a) charges payable to the trust under an agreement with a person who is
not a member of the trust for the delivery of water to, or the drainage of water
from, the land;
(b) any other amount in which an owner or occupier of land is indebted to
the trust under this Act or under an agreement made under this Act.
55—Trust may remit
interest and discount charges
(1) The trust may remit the whole, or part, of the amount of any interest
payable to the trust.
(2) The trust may discount charges or rates to encourage early payment of
the charges or rates.
56—Trust's power
to borrow etc
(1) The trust may borrow money or take advantage of any other form of
financial accommodation.
(2) In order to provide security for any money borrowed, or other
financial accommodation received, by it, the trust may—
(a) charge the whole or any part of its property (including its revenue
arising from water supply charges, drainage charges or rates) by debenture,
mortgage or bill of sale or in any other manner; or
(b) enter into arrangements for the provision of guarantees or
indemnities.
(3) If the trust defaults in carrying out its obligations under a
debenture charged on revenue arising from water supply charges, drainage charges
or rates, the Supreme Court may, on the application of a creditor or a trustee
for debenture holders—
(a) —
(i) direct the trust to appropriate a specified portion of its revenue to
the satisfaction of its obligations under the debenture; or
(ii) direct the trust to raise a specified amount by way of charges or
rates (subject to any other requirement under this Act), and direct that the
amount raised be applied towards satisfaction of the trust's obligations under
the debenture; and
(b) give such incidental or ancillary directions as may be necessary or
desirable.
(4) The rights of a creditor or trustee under subsection (3) are in
addition to any other right that exists independently of that
subsection.
(1) The members of the trust may apply to the Minister for the dissolution
of the trust.
(2) The application—
(a) must be made in a manner and form determined by the Minister;
and
(b) be accompanied by the prescribed fee.
(3) The decision by the trust to dissolve must be made pursuant to a
resolution of the trust.
(4) A resolution under subsection (3) must be supported by 80% or
more of the number of votes cast at a meeting of the trust.
(5) If the Minister is satisfied that due application has been made, the
Minister may dissolve the trust by notice in the Gazette.
(6) The notice will operate from the date of publication or from a later
date specified in the notice.
(7) When the notice comes into operation—
(a) the trust is dissolved; and
(b) any water licence held by the trust—
(i) will vest in 1 or more persons determined or approved by the Minister;
or
(ii) will be dealt with in some other manner determined or approved by the
Minister,
subject to the operation of the Natural Resources Management
Act 2004.
(8) The Minister must consult with the Minister responsible for the
administration of the Natural Resources Management Act 2004 before
acting under subsection (7)(b).
(9) The notice may impose such terms and conditions as the Minister thinks
fit—
(a) on the members of the trust; and
(b) on other persons who own or occupy land that, immediately before the
dissolution of the trust, constitutes serviced property under this
Act.
58—Dissolution
on Minister's initiative
(1) The Minister may dissolve the trust in accordance with this section
if—
(a) in the Minister's opinion the trust—
(i) is unable to carry out its functions properly because of disagreements
between its members; or
(ii) is not carrying out its functions properly for any other reason;
or
(iii) without limiting the generality of subparagraphs (i) and (ii),
is not properly maintaining any irrigation and drainage systems provided by the
trust; or
(b) the trust is unable to pay its debts as they fall due; or
(c) the trust has failed to comply with a provision of this Act;
or
(d) the Minister is of the opinion that it is just and equitable that the
trust be wound up in the circumstances of the particular case.
(2) The Minister must serve notice on the trust of his or her intention to
dissolve the trust under this section—
(a) setting out the grounds for his or her proposed course of action;
and
(b) inviting the trust to make submissions to the Minister in relation to
the matter.
(3) The Minister must take into account submissions made under
subsection (2).
(4) The Minister may serve a notice of dissolution on the trust
if—
(a) 3 months have passed since the notice referred to in
subsection (2) was served on the trust; and
(b) 1 or more of the grounds for dissolution referred to in the notice are
still applicable.
(5) The Minister must publish the notice referred to in
subsection (4) in the Gazette and in a local newspaper.
(6) At the expiration of 3 months after service of the notice under
subsection (4)—
(a) the trust is dissolved; and
(b) any water licence held by the trust—
(i) will vest in 1 or more persons determined by the Minister;
or
(ii) will be dealt with in some other manner determined or approved by the
Minister,
subject to the operation of the Natural Resources Management
Act 2004.
(7) The Minister must consult with the Minister responsible for the
administration of the Natural Resources Management Act 2004 before
acting under subsection (6)(b).
59—Disposal of
property on dissolution
(1) On the dissolution of the trust under this Part, the property, rights
and liabilities of the trust vest in or attach to an irrigation trust or trusts
specified for that purpose by the Minister in the notice of
dissolution.
(2) If in the opinion of the Minister it is not practicable or appropriate
to vest the property and rights, or attach the liabilities, of the trust in or
to an irrigation trust, the property, rights and liabilities of the trust will
vest in or attach to, according to a determination of the
Minister—
(a) the Crown; or
(b) an agency or instrumentality of the Crown (including a
Minister).
(3) This section operates subject to any provision made by a preceding
section of this Part.
(4) In this section—
irrigation trust means an irrigation trust constituted under
the Irrigation Act 2009;
notice of dissolution means—
(a) in relation to a dissolution under section 57—the notice in
the Gazette under section 57(5);
(b) in relation to a dissolution under section 58—the notice
served on the trust under section 58(4).
(1) A person may appeal to the Environment, Resources and Development
Court against a decision of the trust—
(a) in relation to a decision to discontinue a membership of the trust
under section 7(3)(a)(ii); or
(b) in relation to the fixing of an irrigation right in respect of the
person; or
(c) directing the appellant to undertake an act or activity under Part 5;
or
(d) in relation to any other matter of a class prescribed by the
regulations for the purposes of this section.
(2) An appeal must be instituted within 1 month after the appellant
receives written notice of the decision appealed against or within such further
time as the Court considers to be reasonable in the circumstances.
(3) On an appeal the Court may—
(a) affirm or vary the decision appealed against or substitute any
decision that should have been made in the first instance;
(b) remit the subject matter of the appeal to the trust for further
consideration;
(c) make such incidental or ancillary order as the Court considers is
necessary or desirable.
61—Decision may be
suspended pending appeal
(1) If the trust or the Court is satisfied that an appeal against a
decision of the trust has been instituted under this Part, or is intended, the
trust or the Court may suspend the operation of the decision until the
determination of the appeal.
(2) A suspension granted under subsection (1) may be terminated by
the person or body that granted it at any time.
62—Appeal against
proposal to dissolve trust
(1) The trust or a member of the trust may appeal to the Environment,
Resources and Development Court against the Minister's proposal to dissolve the
trust under section 58.
(2) An appeal must be instituted within 1 month after notice of
dissolution of the trust is served on the trust or within such further time as
the Court considers to be reasonable in the circumstances.
(3) On an appeal the Court may—
(a) do 1 or more of the following:
(i) direct the Minister to withdraw the notice of dissolution;
(ii) give the Minister such other directions as the Court thinks
fit;
(iii) give the trust such directions as the Court thinks fit;
(iv) make such incidental or ancillary order as the Court considers is
necessary or desirable; or
(b) refuse to take any action in the matter.
63—Constitution of
Environment, Resources and Development Court
The following provisions apply in respect of the constitution of the
Environment, Resources and Development Court when exercising jurisdiction under
this Act:
(a) the Court may be constituted in a manner provided by the
Environment, Resources and Development Court Act 1993 or may, if the
Senior Judge of the Court so determines, be constituted of a Judge and
1 commissioner;
(b) the provisions of the Environment, Resources and Development Court
Act 1993 apply in relation to the Court constituted of a Judge and
1 commissioner in the same way as in relation to a full bench of the
Court;
(c) the Court may not be constituted of or include a commissioner
unless—
(i) in a case where only 1 commissioner is to sit (whether alone or
with another member or members of the Court)—the commissioner;
or
(ii) in any other case—at least 1 commissioner,
is a commissioner who has been specifically designated by the Governor as a
person who has expertise in irrigated farming or management of water
resources.
(1) A person incurs no civil liability for an honest act or omission in
the exercise or discharge, or purported exercise or discharge, by the person or
by the trust, board of management or committee of which he or she is a member,
of a power, function or duty under this Act.
(2) Subject to subsections (3) and (4), a liability that would but
for subsection (1), lie against the person referred to in that subsection,
lies instead against the trust.
(3) The trust is not liable for loss or damage caused by, or resulting
from—
(a) rises or falls in the water level in the watercourse, aquifer or other
source from which it takes water for irrigation purposes or in the watercourse,
lake, lagoon, swamp, marsh or aquifer into which it drains water; or
(b) the escape of water from the irrigation or drainage system provided by
the trust except where the trust knew, or should have known, that water was
escaping or was likely to escape and failed, without reasonable excuse, to
prevent the escape; or
(c) the trust's failure to supply water in accordance with this Act if the
failure was caused by a break down in the irrigation system provided by the
trust, except where the trust knew, or should have known, of the break down, or
the likelihood of the break down occurring, and failed, without reasonable
excuse, to rectify or prevent it.
(4) The trust is not liable for loss or damage caused by, or resulting
from, any action—
(a) to meet any duty or other requirement under the Natural Resources
Management Act 2004 (including a licence under that Act) or the
River Murray Act 2003; or
(b) to further the objects of the River Murray Act 2003 or the
Objectives for a Healthy River Murray under that Act.
(1) The owner of land where an irrigation or drainage system of the trust
is situated may apply to the trust for its consent to divide the land.
(2) The trust may give its consent subject to such conditions as it thinks
fit.
(3) Land may be divided without the consent of the trust but in that event
the following provisions apply:
(a) the trust has no obligation to extend any irrigation or drainage
system to a new allotment;
(b) a new allotment cannot be connected to an irrigation or drainage
system provided by the trust without the trust's approval;
(c) the division will not affect any irrigation right (unless the holder
of the irrigation right applies to the trust for a new right to be issued and an
appropriate adjustment made to the terms of the irrigation right);
(d) the trust may refuse to supply water to an allotment created by the
division if the water will pass through another allotment created by the
division or the water will be drained through another allotment created by the
division.
(4) This section does not derogate from any other Act or law relating to
the division of land.
66—False or
misleading information
A person who furnishes information to the trust under this Act that is
false or misleading in a material particular is guilty of an offence.
Maximum penalty: $5 000.
67—Protection of
irrigation system etc
A person who, without lawful authority, interferes with any part of an
irrigation or drainage system or with any property of the trust used in, or in
connection with, the irrigation or drainage of land is guilty of an
offence.
Maximum penalty: $20 000.
Expiation fee: $750.
A person who takes water from the irrigation or drainage system of the
trust without being authorised to do so or uses water taken from an irrigation
system for an unauthorised purpose is guilty of an offence.
Maximum penalty: $20 000.
Expiation fee: $750.
69—Offences by
bodies corporate
If a body corporate is guilty of an offence against this Act, each member
of the governing body, and the manager, of the body corporate are guilty of an
offence and liable to the same penalty as is prescribed for the principal
offence.
It is a defence to a charge of an offence against this Act if the defendant
proves that the alleged offence was not committed intentionally and did not
result from any failure on the part of the defendant to take reasonable care to
avoid the commission of the offence.
Proceedings for an offence against this Act must be
commenced—
(a) in the case of an expiable offence—within the time limits
prescribed for expiable offences by the Summary Procedure
Act 1921;
(b) in any other case—within 2 years of the date on which the
offence is alleged to have been committed.
(1) An allegation by the prosecution in proceedings for an offence against
this Act that on a particular day, or during a particular period, the defendant
(or any other person) was or was not—
(a) the owner or occupier of a particular land; or
(b) authorised to take water for irrigation or other purposes under this
Act; or
(c) an authorised officer,
must, in the absence of proof to the contrary, be accepted as
proved.
(2) An allegation by the trust in proceedings for the recovery of charges
or other money as to—
(a) the amount of those charges or other money; or
(b) the ownership or occupation of land,
must, in the absence of proof to the contrary, be accepted as
proved.
(3) The production, in legal proceedings under this Act, of a paper that
purports to be a particular newspaper published on a particular day must be
accepted as evidence that the newspaper was published in that form on that
day.
(1) Subject to this Act, a notice may be served on, or given to, a person
in pursuance of this Act as follows:
(a) by giving it to the person or an agent of the person;
(b) by leaving it for the person with someone apparently over the age of
16 years at his or her place of residence or at any place at which he or
she carries on business;
(c) by posting it to the person at his or her last known
address;
(d) by fixing the notice in the prescribed manner in a prominent position
on the land to which the notice relates;
(e) where the notice is to be served on, or given to, the occupier of
land—by posting it addressed to "The Occupier" at the address for the
land.
(2) If a notice is to be served on, or given to, the owner of land and the
owner has died, the notice may be served on, or given to, the executor or
administrator of the owner's estate or, where an executor or administrator has
not been appointed, by fixing the notice in the prescribed manner in a prominent
position on the land to which the notice relates.
(3) A notice will be taken to have been served on, or given to, all of the
owners or occupiers of land if it is served on, or given to, 1 of the
owners or occupiers of the land.
74—Certain land
vested in trust in fee simple
The piece of land delineated and coloured blue in the plan signed J.H.
McNamara, Surveyor-General, and deposited in the Land Office of 5 August 1936,
and numbered 324, and therein marked "X", will, so far as that land has not
been alienated by the trust, continue to be vested in the trust, to be held by
the trust in fee simple under this Act.
75—Power of trust
to construct infrastructure across roads
(1) The trust may, in connection with the construction or maintenance of
any drainage or irrigation system provided (or to be provided) by the
trust—
(a) cut any road (including any road vested in or under the control of a
council);
(b) lay any pipes or other forms of infrastructure under any such road, or
construct any culvert, drain or other works along or adjacent to any such
road;
(c) take any steps necessary or convenient in connection with
paragraph (a) or (b).
(2) After any works are carried out under subsection (1), the trust
must take such action as is reasonably necessary or appropriate to reinstate the
road.
(3) In this section—
road has the same meaning as under the Local Government
Act 1999.
The following matters are declared to be excluded matters for the purposes
of section 5F of the Corporations Act 2001 of the Commonwealth in
relation to the whole of the Corporations legislation to which Part 1.1A of that
Act applies:
(a) the trust;
(b) an act or omission of any person, body or other entity in relation to
the trust.
(1) The Governor may make such regulations as are contemplated by this Act
or as are necessary or expedient for the purposes of this Act.
(2) Without limiting the generality of subsection (1) the regulations
may—
(a) relate to—
(i) the provision and maintenance of any irrigation or drainage system;
or
(ii) the manner in which irrigation water may be used; or
(iii) maintaining or improving the quality of irrigation water;
or
(iv) the drainage and disposal of irrigation water;
(b) make provisions for, or in relation to, the assessment of the quantity
of irrigation or other water;
(c) provide for the payment and recovery of fees—
(i) for the installation, maintenance and testing of water meters or for
any other service provided by the trust; or
(ii) in relation to any other matter connected with the operation or
administration of this Act;
(d) prescribe fines not exceeding $5 000 for contravention of or
failure to comply with a regulation.
(3) A regulation under this Act—
(a) may make different provision according to the matters or circumstances
to which they are expressed to apply;
(b) may be of general or limited application;
(c) may provide that a matter or thing in respect of which regulations may
be made is to be determined according to the discretion of the Minister or any
other person or body prescribed by the regulations.
(1) This section applies if the trust has been dissolved under Part
8.
(2) The Governor may, if or when it appears to the Governor to be
appropriate to do so, fix by proclamation a day on which this Act will expire on
the account of the dissolution of the trust.
Schedule
1—Related amendments, repeals and transitional
provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Natural Resources Management
Act 2004
After section 169A insert:
169B—Interaction with Renmark Irrigation Trust
Act 2009
(1) The Minister may allocate water transferred by RIT to a person or
other body under section 31 of the Renmark Irrigation Trust
Act 2009 to a person or body holding a water licence under this Act to
give effect to the operation of that section.
(2) The Minister may—
(a) grant a water licence to a person whose irrigation right is being
transformed into a water licence under section 33 or 34 of the
Renmark Irrigation Trust Act 2009 unless the Minister considers that
the water licence should not be granted on a ground that applies under
Part 3 Division 1;
(b) make adjustments to a water licence already held by a person whose
irrigation right is being transformed into a water licence under section 33 or
34 of the Renmark Irrigation Trust Act 2009 on account of that
transformation.
(3) This section does not limit the operation or effect of any other
provision of this Act.
(4) A fee (if any) prescribed by the regulations is payable in respect of
any action taken by the Minister under this section (and the Minister may
decline to take the action unless or until the fee is paid).
(5) In this section—
RIT means the Renmark Irrigation Trust.
Part 3—Repeal of Act
The Renmark Irrigation Trust Act 1936 is repealed.
Part 4—Transitional provisions
In this Part—
relevant day means the day on which this Part comes into
operation;
repealed Act means the Renmark Irrigation Trust
Act 1936.
A person who is a ratepayer under the repealed Act immediately before the
relevant day will be taken to be a member of the trust on the relevant
day.
6—Presiding
member and deputy presiding member
(1) The person who is the chairperson of the trust immediately before the
relevant day will be taken to be the presiding member of the trust and of the
board of management of the trust on the relevant day.
(2) The person who is the deputy chairperson of the trust immediately
before the relevant day will be taken to be the deputy presiding member of the
trust and of the board of management of the trust on the relevant day.
(1) A person who is a member of the trust under section 10 of the
repealed Act immediately before the relevant day will be taken to be a director
of the trust on the relevant day.
(2) Those persons within the ambit of subclause (1) who were due to
retire at the next annual general meeting of the trust under the repealed Act
will hold office until the first annual general meeting of the trust under this
Act (and are eligible for re-election at that meeting).
(1) Any resolution of the trust in force and effect immediately before the
relevant day will continue to have effect for the purposes of this Act on and
after the relevant day.
(2) A resolution under subclause (1) may be varied or revoked on or
after the relevant day by—
(a) the trust; or
(b) the board of management of the trust.
(1) Until otherwise resolved by the trust, an allocation of water to which
a ratepayer is entitled under the repealed Act immediately before the relevant
day will constitute the irrigation right of the ratepayer as a member of the
trust under this Act.
(2) Subclause (1) operates subject to the conditions of the trust's
water licence and any reduction in allocations imposed under the Natural
Resources Management Act 2004 or the Commonwealth water
rules.
A charge, rate or liability to pay interest, as it exists immediately
before the relevant day, and any process to impose or recover the charge, rate
or interest, will continue to have effect under this Act.
(1) The Governor may, by regulation, make additional provisions of a
saving or transitional nature consequent on the enactment of this Act.
(2) A provision of a regulation made under subclause (1) may, if the
regulation so provides, take effect from the commencement of this Act or from a
later day.
(3) To the extent to which a provision takes effect under
subclause (2) from a day earlier than the day of the regulation's
publication in the Gazette, the provision does not operate to the disadvantage
of a person by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
(4) The Acts Interpretation Act 1915 will, except to the
extent of any inconsistency with the provisions of this Schedule (or regulations
made under this Schedule), apply to any amendment or repeal effected by this
Act.