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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
South East Drainage System Operation and Management
Bill 2012
A BILL FOR
An Act to provide for the operation and management of the drainage system
and related infrastructure in the South East of the State; to provide for the
management of water flows and wetlands in the South East of the State; to
establish the South Eastern Drainage Management Board; to repeal the South
Eastern Water Conservation and Drainage Act 1992; to make related
amendments to the Natural
Resources Management Act 2004; and for other purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
4Interaction with
other Acts
Part 2—Objects
5Objects
6Administration of Act to achieve objects
and to be consistent with objects of certain other Acts
Part 3—South
East Drainage and Wetland Management Strategy
7Preparation of Strategy
and consultation
8Adoption of Strategy by
Minister
9Availability of Strategy
Division 1—South
Eastern Drainage Management Board
Subdivision 1—Establishment of South
Eastern Drainage Management Board
10Establishment of South Eastern Drainage
Management Board
Subdivision 2—Membership and
proceedings
11Membership
12Conditions of
membership
13Proceedings
14Committees
15Validity of
acts
16Remuneration
Subdivision 3—Functions
17Functions
Subdivision 4—Powers
18General
powers
19Power to enter, inspect etc land
20Power to carry out
works
21Power to fence
works
Subdivision 5—Business
plan
22Business
plan
Subdivision 7—Miscellaneous
24Delegation
25Accounts and audit
26Annual
report
Division 2—Authorised officers and
their powers
27Appointment of
authorised officers
28Powers of authorised officers
Part 5—Operation,
maintenance etc of drainage system
Division 1—Vesting
of works related to drainage system
29Vesting of works
related to drainage system
Division 2—Water in drainage system
is property of Crown
30Water in drainage system is
property of Crown
Division 3—Management
agreements
31Management
agreements
Division 4—Licence
to carry out work or activities relating to drainage system
32Application of
Division
33Certain work and
activities not to be carried out without licence
34Grant of
licences
Division 5—Discharge by council of
stormwater into drainage system
35Discharge by council of stormwater into
drainage system
Division 6—Drainage
system not to be interfered with
36Drainage system not to be interfered
with
Division 7—Orders
37Protection
orders
38Reparation
orders
39Registration of
orders
40Action on non-compliance with
order
Division 8—Civil
remedies
41Orders of ERD Court
42Interim restraining orders to
prevent harm to key environmental features
Division 9—Appeals
43Rights of
appeal
44Decision or requirement may be suspended
pending appeal
Part 6—Contribution
to funding of drainage system
45Contribution to funding of drainage
system
Part 7—Miscellaneous
46Native
title
47Immunity provision
48Delegation
49Power to waive
or defer payments
50Proceedings for offences
51Offences by body
corporate
52Vicarious liability
53Continuing
offence
54General defence
55Evidentiary
56Regulations
Schedule 1—Related
amendments, repeal and transitional provisions
Part 1—Interpretation
1Amendment
provisions
Part 2—Amendment of
Natural Resources Management Act 2004
2Amendment of section
3—Interpretation
3Amendment of section 129—Activities not
requiring permit
Part 3—Repeal
4Repeal of South Eastern
Water Conservation and Drainage Act 1992
Part 4—Transitional
provisions
5South Eastern Water Conservation and Drainage
Board continues as South Eastern Drainage Management Board
6Other offices
vacated
7Upper South East Drainage Network Management
Strategy
8Management plan continues as business
plan
9Ministerial authorisations
10Licences
11Fencing
agreements
The Parliament of South Australia enacts as
follows:
This Act may be cited as the South East Drainage System Operation and
Management Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
approved stormwater management plan means a stormwater
management plan that has been approved by the Stormwater Management Authority
under clause 15 of Schedule 1A of the Local
Government Act 1999;
authorised officer—see
section 27;
council has the same meaning as in the Local
Government Act 1999;
drain does not include a drain within a township;
Drainage Act or repealed Drainage Act means the
South
Eastern Water Conservation and Drainage Act 1992 repealed under
Schedule 1
Part 3;
drainage hole means an artificial or natural hole capable of
allowing surface water to drain into the underground water system;
drainage reserve means any Crown land that is dedicated,
reserved or set aside for drainage purposes;
drainage system means—
(a) the water management works within the meaning of the repealed Drainage
Act; and
(b) any works operated, constructed or maintained by SEDMB for the
purposes of this Act; and
(c) any other works brought within the ambit of this definition by the
regulations,
and includes all land within the drainage system area under the care,
control and management of the Minister (other than any such land excluded by
determination of the Minister) or SEDMB;
drainage system area means those areas of land described or
delineated for the purposes of the drainage system by the regulations;
ERD Court means the Environment, Resources and Development
Court;
key environmental feature means any of the following aspects
of the environment located or occurring within the South East identified as key
environmental features by the SE NRM Board in the Strategy:
(a) wetlands;
(c) native vegetation;
(d) natural habitats;
(e) environmental biodiversity;
(f) any other aspect of the environment that, in the opinion of the
SE NRM Board, should be protected or enhanced;
landholder means an owner or occupier of land in the South
East;
licence means a licence granted under
Part 5
Division 4;
management agreement—see
section 31;
Minister for the River Murray means the Minister to whom the
administration of the
River
Murray Act 2003 is committed;
Murray-Darling Basin has the same meaning as in the Water
Act 2007 of the Commonwealth;
River Murray has the same meaning as in the River
Murray Act 2003;
River Murray Protection Area means a River Murray Protection
Area under the
River
Murray Act 2003;
SEDMB means the South Eastern Drainage Management
Board established under
Part 4;
SEDMB's area means that part of the South East that does not
fall within a township;
SE NRM Board means—
(a) subject to
paragraph (b)—the
South East Natural Resources Management Board established as a regional
NRM Board under section 23 of the
Natural
Resources Management Act 2004; or
(b) if the Minister
designates a regional NRM Board as the regional NRM Board in substitution for
the Board referred to in
paragraph (a)—that
Board;
South East means—
(a) subject to
paragraph (b)—that
part of the State shown as the South East Natural Resources Management Region in
General Registry Office Plan No GP27/2008, as varied from time to time by
proclamation under the Natural
Resources Management Act 2004; or
(b) if the Governor
designates another area by proclamation made for the purposes of this
definition—that area;
South East Drainage and Wetland Management Strategy or
Strategy means the South East Drainage and Wetland Management
Strategy prepared under
Part 3;
substance means any solid, liquid or gas (or combination
thereof), including waste;
township means—
(a) a government township and any land laid out as a township where plans
of the township have been deposited in the Lands Titles Office, the General
Registry Office or the Surveyor-General's Office; or
(b) any part of the
area of a council that contains at least 20 residences and that is defined
as a township by the council by notice in the Gazette;
vehicle includes any—
(a) vessel or craft; and
(b) plant or equipment
designed to be moved or operated by a driver;
wetland, in relation to the South East, means an area of the
South East that comprises land that is permanently or periodically inundated
with water (whether through a natural or artificial process) where the water may
be static or flowing and may range from fresh water to saline water and where
the inundation with water influences the biota or ecological processes (whether
permanently or from time to time), and includes any other area in the South East
designated as a wetland—
(a) by an NRM plan under Chapter 4 of the Natural
Resources Management Act 2004; or
(b) by a Development Plan under the Development
Act 1993,
but does not include—
(c) a dam or reservoir that has been constructed by a person wholly or
predominantly for the provision of water for primary production or human
consumption; or
(d) an area within an estuary or within any part of the sea; or
(e) a pond for storing wastewater; or
(f) an area excluded from the ambit of this definition by the
regulations;
works means—
(a) any channel, drain, artificial drainage hole, dam, bank or other
device or works constructed, established or used for the purposes
of—
(i) conserving, holding, draining, altering or managing the flow of
surface water from or onto land; or
(ii) utilising any such water,
including any ancillary access road, bridge, culvert, bank, levee or other
ancillary works; and
(b) any works constructed for the purpose of lowering water table levels;
and
(c) any other infrastructure or works related or ancillary to a system
referred to in a preceding paragraph.
(2) Unless the contrary intention appears, an expression used in this Act
has the same meaning as in the Natural
Resources Management Act 2004.
(3) To avoid doubt—
(a) the Minister may make a declaration under
paragraph (b) of
the definition of SE NRM Board from time to time;
and
(b) the Governor may
make a designation under
paragraph (b) of the
definition of South East from time to time.
(1) Subject to this section, this Act is in addition to and does not limit
or derogate from the operation of any other Act and SEDMB must, in exercising
powers under this Act, comply with the provisions of relevant Acts.
(2) The Minister to
whom the administration of the Upper
South East Dryland Salinity and Flood Management Act 2002 is
committed may—
(a) enter into agreements or other arrangements with SEDMB to undertake,
coordinate or advance activities, works or other initiatives that are relevant
to the operation of that Act; and
(b) delegate any
power or function of the Minister under that Act to SEDMB.
(3) A power or function delegated under
subsection (2)(b)
may, if the instrument of delegation so provides, be further
delegated.
(4) This Act is subject to—
(a) the Pulp
and Paper Mills Agreement Act 1958; and
(b) the Pulp
and Paper Mill (Hundreds of Mayurra and Hindmarsh)
Act 1964.
The objects of this Act include the management of water in the drainage
system and wetlands in the South East, and the operation of the drainage
system—
(a) to protect infrastructure, land, soils and ecosystems in the South
East from flooding and dryland salinity; and
(b) to provide water for environmental purposes for the enhancement of the
natural environment of the South East; and
(c) to protect and enhance agricultural land in the South East for the
purposes of primary production; and
(d) to assist in the proper conservation and management of water in the
South East.
6—Administration
of Act to achieve objects and to be consistent with objects of certain other
Acts
(1) The Minister and all other persons or bodies involved in the
administration of this Act, or performing, exercising or discharging a function,
power or duty under this Act, must have regard to, and seek to further, the
objects of this Act.
(2) The Minister and all other persons or bodies involved in the
administration of this Act, or performing, exercising or discharging a function,
power or duty under this Act, must seek to act consistently
with—
(a) the objects of the Natural
Resources Management Act 2004 (insofar as they relate to the South
East); and
(b) the objects of the Environment
Protection Act 1993 (insofar as they relate to the South East);
and
(c) the South East Drainage and Wetland Management Strategy.
(3) The Minister and all other persons or bodies involved in the
administration of this Act, or performing, exercising or discharging a function,
power or duty under this Act, must, if or when taking any action under this Act
within, or in relation to, any part of the Murray-Darling Basin, seek to act
consistently with—
(a) the objects of the River
Murray Act 2003; and
(b) the Objectives for a Healthy River Murray under that
Act,
(insofar as they may be relevant).
Part 3—South
East Drainage and Wetland Management Strategy
7—Preparation
of Strategy and consultation
(1) The SE NRM Board must prepare and maintain a strategy for the
management of water in the drainage system, wetlands and watercourses in the
South East to be called the South East Drainage and Wetland Management
Strategy.
(2) The Strategy—
(a) must set out the proposals of the SE NRM Board in relation to
surface waters, including—
(i) the management of the water in the drainage system; and
(ii) the management of wetlands and watercourses in the South East;
and
(b) must identify key environmental features and significant agricultural
issues in the South East and set out the proposals of the SE NRM Board in
relation to the management of those features and issues; and
(c) should give consideration to Aboriginal heritage, and to the interests
of the traditional owners of any land or water resources; and
(d) must identify the aspects of the Strategy for which SEDMB is
responsible; and
(e) must identify the aspects of the Strategy for which any other person
or body is responsible.
(3) In setting out the SE NRM Board's proposals, the Strategy
must—
(a) include an assessment of the quantity and quality of water needed by
the ecosystems that depend on the surface water and underground water resources
and the times at which, or the periods during which, those ecosystems will need
that water; and
(b) provide guidance and direction to SEDMB on the management of the water
in the drainage system, including flow management objectives and performance
standards within an adaptive flow management framework; and
(c) provide guidance and direction to the person or body (which may be
SEDMB) to whom responsibility for the management of wetlands and watercourses is
assigned; and
(d) address each of the following matters:
(i) the protection of infrastructure, land, soils and ecosystems from
flooding;
(ii) the interaction between surface water and underground
water;
(iii) the provision of water for human consumption and for environmental,
primary production, social and cultural purposes;
(iv) the removal and disposal of underground water through the operation
and management of the drainage system.
(4) The Strategy must be consistent with the State NRM Plan and must take
into account—
(a) the provisions of any relevant regional NRM plan, or water allocation
plan, under the Natural
Resources Management Act 2004; and
(b) the provisions of any relevant plans of management under the National
Parks and Wildlife Act 1972; and
(c) the Environment
Protection Act 1993 and the provisions of any relevant environment
protection policy under that Act; and
(d) any Aboriginal heritage issues and interests of the traditional owners
of any land or other natural resources; and
(e) any other heritage issues and interests of the community in relation
to conserving heritage items and places; and
(f) any intergovernmental agreement relevant to the operation of this Act
to which the State or the Commonwealth is a party; and
(g) the provisions of any statutory instrument under a related operational
Act (insofar as is relevant to the operation of this Act and reasonably
practicable); and
(h) any other matter prescribed by the regulations.
(5) The Strategy will be taken to form part of the SE NRM Board's
regional NRM plan.
(6) The SE NRM Board must review the Strategy at least once during
each period of 5 years following adoption of the Strategy.
(7) The SE NRM
Board must, in relation to any proposal to create or amend the
Strategy—
(a) prepare a draft of the proposal; and
(b) take reasonable steps to consult on the draft proposal
with—
(i) the NRM Council; and
(ii) SEDMB; and
(iii) insofar as the Strategy affects the River Murray—the regional
NRM Board responsible for the Murray-Darling Basin; and
(iv) each council that has a direct interest in the proposal;
and
(v) the relevant authorities under all Acts dealing with protection of the
environment, soil conservation or management or protection of water resources,
and act in conformity with the policies established under those Acts;
and
(vi) the local community, including the local Aboriginal people;
and
(c) by public notice, give notice of the place or places at which copies
of the draft of the proposal are available for inspection (without charge) and
purchase and invite interested persons to make written representations on the
draft within a period specified by the SE NRM Board.
(8)
Subsection (7) does not
apply in relation to an amendment that is being made at the direction, or with
the concurrence, of the Minister—
(a) in order to ensure that the Strategy is consistent with any plan,
policy or strategy that—
(i) has been prepared, adopted or applied under another Act; and
(ii) falls within a class prescribed by the regulations for the purposes
of this provision; or
(b) in order to ensure that the Strategy is consistent with any plan,
policy or strategy relevant to addressing an urgent situation that has arisen in
relation to the protection of the drainage system or wetlands in the South East
or in order to support the taking of urgent action to safeguard the ecological,
environmental, social or economic value of the drainage system or wetlands in
the South East; or
(c) in order to remove or replace information in the Strategy that has
been superseded by information that is more reliable or accurate; or
(d) in order to make a change of form (without altering the effect of an
underlying policy reflected in the Strategy); or
(e) in order to take action which is considered or accepted by the
Minister to be—
(i) addressing or removing irrelevant material or a duplication or
inconsistency (without altering the effect of an underlying policy reflected in
the Strategy); or
(ii) correcting an error.
(a) prepare a report on the matters raised during consultation on the
draft of the proposal, including—
(i) a report from SEDMB on operational issues relating to the draft;
and
(ii) any recommended alterations to the draft; and
(b) provide the Minister with a copy of the draft and report on the
draft.
(10) In this section—
related operational Act means an Act declared by the
regulations to be a related operational Act.
8—Adoption
of Strategy by Minister
(1) On receipt of the
draft of a proposal to create or amend the Strategy and a report on the draft
under
section 7, the
Minister may—
(a) adopt the draft
with or without amendment; or
(b) refer the draft back to the SE NRM Board for further
consideration.
(2) The Minister must consult with the SE NRM Board before making an
amendment under
subsection (1)(a).
(3) If the Minister adopts the draft proposal with amendment, the Minister
must give—
(a) a copy of the draft as amended; or
(b) if it appears to the Minister that the part or parts of the draft that
have been amended can conveniently be substituted in the draft proposal—a
copy of that part or those parts as amended,
to the SE NRM Board.
(4) If the Minister refers the draft proposal back to the SE NRM
Board, it must prepare a new draft proposal and follow the procedures as to
consultation provided for by this Part in respect of the new draft.
(5) The Minister adopts a draft proposal to create or amend the Strategy
by signing a certificate endorsed on the draft proposal that the Minister has
adopted the Strategy as so created or amended.
(6) The Strategy, and
any amendment to the Strategy (other than an amendment made by the Minister
under
section 7(8)),
have no force or effect until adopted by the Minister.
(1) The SE NRM Board must—
(a) make reasonable provision for the publication of the Strategy;
and
(b) ensure that copies of the Strategy are reasonably available for
inspection (without charge) and purchase by the public at a place or places
determined by the Minister; and
(c) ensure that public notice is given of any amendment to the Strategy
within a reasonable time after the amendment is made.
(2) The Strategy is an expression of policy and does not in itself affect
rights or liabilities (whether of a substantive, procedural or other
nature).
(3) A failure of the SE NRM Board to comply with a requirement of
this Part cannot be taken to affect the validity of the Strategy, or any other
plan or instrument under this Act.
(4) If a part of the Strategy is found to be invalid—
(a) the balance of the Strategy may nevertheless continue to have full
force and effect; and
(b) if the part that is found to be invalid arises from, or is
attributable to, an amendment (or purported amendment) to the Strategy then the
amendment (or purported amendment) will, to the extent of the invalidity, be
disregarded and the Strategy will, to that extent, revert to the position that
applied immediately before it was sought to give the amendment (or purported
amendment) effect.
Division 1—South
Eastern Drainage Management Board
Subdivision 1—Establishment
of South Eastern Drainage Management Board
10—Establishment
of South Eastern Drainage Management Board
(1) The South
Eastern Drainage Management Board (SEDMB) is
established.
(2) SEDMB—
(a) is 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) is an instrumentality of the Crown and holds its property on behalf of
the Crown; and
(e) has the functions and powers assigned or conferred by or under this or
any other Act.
(3) If a document appears to bear the common seal of SEDMB, it will be
presumed, in the absence of proof to the contrary, that the common seal of SEDMB
was duly fixed to the document.
(4) SEDMB is, in the performance of its functions, subject to control and
direction by the Minister.
Subdivision 2—Membership
and proceedings
(1) SEDMB will
consist of not more than 7 members appointed by the Governor on the
nomination of the Minister, being persons who collectively have, in the opinion
of the Minister, knowledge, skills and experience necessary to enable SEDMB to
carry out its functions effectively.
(2) For the purposes of
subsection (1),
the Minister must (as far as is reasonably practicable in the circumstances)
give consideration to nominating persons—
(a) who reside or otherwise have a close association with the South East;
and
(b) so as to provide a range of knowledge, skills and experience across
the following areas:
(i) business or financial management;
(ii) civil engineering;
(iii) infrastructure management;
(iv) primary production;
(v) environmental or natural resources management;
(vi) Aboriginal interest in the land and water, and Aboriginal
heritage;
(vii) public sector management;
(viii) community affairs at the regional level.
(3) The Governor may, on the nomination of the Minister—
(a) appoint a member to be the presiding member of SEDMB; and
(b) appoint a suitable person to be the deputy of a member of SEDMB (other
than the presiding member) and a person so appointed may act as a member of
SEDMB in the member's absence.
(4) At least 1 member of SEDMB must be a woman and 1 a
man.
(5) The Minister
may, by instrument in writing, authorise a person or persons to attend any
meeting of SEDMB in order to represent the interests of the State or local
government.
(6) A person who holds an authorisation under
subsection (5)
is entitled—
(a) to receive notice of a meeting of SEDMB; and
(b) to have access to papers provided to members of the SEDMB for the
purposes of any meeting; and
(c) to attend, and participate in, any meeting of the SEDMB (but has no
entitlement to vote).
(1) A member of SEDMB will be appointed for a term not exceeding
4 years and on conditions determined by the Governor and specified in the
instrument of appointment.
(2) A member of SEDMB will, at the expiration of a term of appointment, be
eligible for reappointment (subject to the qualification that a person cannot
serve as a member for more than 8 consecutive years).
(3) The Governor may
remove a member from office—
(a) for misconduct; or
(b) for failure or incapacity to carry out the duties of his or her office
satisfactorily; or
(c) for contravention of a condition of his or her appointment;
or
(d) if serious irregularities have occurred in the conduct of SEDMB's
affairs or SEDMB has failed to carry out its functions satisfactorily and its
membership should, in the opinion of the Governor, be reconstituted for that
reason.
(4) The office of a member becomes vacant if the member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is convicted of an indictable offence or sentenced to imprisonment for
an offence; or
(e) is removed from office under
subsection (3).
(5) On the office of a member becoming vacant, a person may be appointed
in accordance with this Division to the vacant office.
(1) The presiding member of SEDMB will preside at each meeting of SEDMB at
which the member is present.
(2) If the presiding member is absent from a meeting of SEDMB, a member
chosen by the members present at the meeting will preside at the
meeting.
(3) Subject to
subsection (4), a
quorum of SEDMB consists of half of the total number of its members (ignoring
any fraction resulting from the division) plus 1.
(4) If during a
meeting of SEDMB—
(a) a member absents himself or herself from the meeting room (whether
because of the member's duty with respect to a conflict of interest or for some
other reason) during a discussion or voting in relation to a matter decided or
under discussion by SEDMB; and
(b) as a result of the member's absence, there is no longer a quorum
present,
those remaining members constitute a quorum for the purpose of any
discussion or voting at that meeting in relation to that matter.
(5) A decision carried by a majority of the votes cast by members at a
meeting is a decision of SEDMB.
(6) Each member present at a meeting of SEDMB has 1 vote on any
question arising for decision and, if the votes are equal, the member presiding
at the meeting may exercise a casting vote.
(7) A telephone or video conference between members will, for the purposes
of this section, be taken to be a meeting of SEDMB at which the participating
members are present.
(8) A proposed resolution of SEDMB becomes a valid decision of SEDMB
despite the fact that it is not voted on at a meeting of SEDMB
if—
(a) notice of the proposed resolution is given to all members in
accordance with procedures determined by SEDMB; and
(b) a majority of the members express their concurrence in the proposed
resolution by letter, fax or other written communication setting out the terms
of the resolution.
(9) SEDMB must cause accurate minutes to be kept of its
proceedings.
(10) Subject to this Act, SEDMB may determine its own
procedures.
(11) Subject to the directions of SEDMB and
section 14,
this section applies to a committee of SEDMB in the same way as to
SEDMB.
(1) SEDMB may establish committees—
(a) to advise SEDMB on any matter; or
(b) to carry out functions on behalf of SEDMB.
(2) The membership and conditions of membership of a committee will be
determined by SEDMB and may, but need not, consist of, or include, members of
SEDMB.
(3) SEDMB will determine who will be the presiding member of a
committee.
(4) The procedures to
be observed in relation to the conduct of the business of a committee will
be—
(a) as determined by
SEDMB; and
(b) insofar as a procedure is not determined under
paragraph (a)—as
determined by the committee.
An act or proceeding of SEDMB or a committee of SEDMB is not invalid by
reason only of a vacancy in its membership.
A member of SEDMB is entitled to remuneration, allowances and expenses
determined by the Governor.
(1) The functions
of SEDMB are—
(a) to carry out each of the following in accordance with the
Strategy:
(i) to construct, manage, repair, clean and otherwise maintain the
drainage system and related works;
(ii) to operate the drainage system;
(iii) to manage water flow in the South East;
(iv) to manage wetlands and watercourses in the South East; and
(b) to carry out any other function assigned to SEDMB—
(i) at the request of the Minister or by negotiation with another person
or body—that may assist the Minister or the other person or body in
connection with the protection, management or enhancement of any aspect of the
environment in the South East; or
(ii) under the Strategy; or
(iii) under this Act or any other Act; or
(iv) by the Minister.
(2) In carrying out its functions, SEDMB must—
(a) ensure that its activities are consistent with the Strategy;
and
(b) encourage and promote active community involvement in water
conservation and management matters; and
(c) seek, in the first instance, to undertake its activities on the basis
of negotiation with landholders and all other relevant persons or
authorities.
(3) SEDMB may, with the approval of the Minister, undertake activities
outside the South East in connection with the operation of
subsection (1).
(1) SEDMB has the
powers of a natural person and may do anything necessary, expedient or
incidental to performing the functions conferred on SEDMB under this Act or any
other Act.
(2) Without limiting the operation of
subsection (1),
SEDMB may do any or all of the following for the purposes of this Act:
(a) enter into a contract, agreement or arrangement of any kind (whether
with landholders or any other person or authority);
(b) acquire, hold, deal with or dispose of real or personal property or
any interest in real or personal property, including for the purposes of a
statutory easement;
(c) seek expert or technical advice on any matter from any person on such
terms and conditions as SEDMB thinks fit.
(3) SEDMB may, with the consent of the Minister, compulsorily acquire land
under the Land
Acquisition Act 1969.
19—Power
to enter, inspect etc land
(1) SEDMB may, for the purposes of this Act, do any or all of the
following within SEDMB's area:
(a) enter on any land for the purpose of exercising powers under this
Act;
(b) inspect, survey, take samples of soil or water from, or carry out
tests on, any land;
(c) inspect any private works related to the drainage system;
(d) widen, deepen, clean out, shore up or raise or lower the banks of any
watercourse, drainage hole, dam, lake or well.
(2) The power to enter land is, except in cases where urgent action is
required to deal with a flood, potential flood or other emergency, exercisable
only at a reasonable time of the day and on giving reasonable notice (being not
less than 1 day) to the landholder.
(a) SEDMB may construct such works, or alter or remove such of SEDMB's
works, as SEDMB thinks necessary or desirable for the drainage system in
accordance with the Strategy and for the purposes of this Act; and
(b) undertake any other activity as SEDMB thinks fit as may be
contemplated by the Strategy and for the purposes of this Act.
(2) SEDMB must endeavour to maintain its works relating to the drainage
system in a good state of safety, cleanliness and repair and in efficient
working order.
(3) SEDMB may not, except with the approval of the Minister, undertake any
work under this section that is not contemplated by the Strategy or SEDMB's
approved business plan.
(4) SEDMB may not, except with the approval of the Minister for the River
Murray, undertake any work under this section that might affect the River Murray
that is not contemplated by the Strategy or SEDMB's approved business
plan.
(1) SEDMB—
(a) may cause any of its works relating to the drainage system or a
drainage reserve under its care, control and management to be fenced to such
extent and in such manner as is reasonably adequate—
(i) for the purpose of protecting the works or reserve from damage;
or
(ii) for any other purpose reasonably connected with the operation of the
drainage system or drainage reserve; and
(b) may cause any such fence to be repaired, maintained or replaced as is
reasonably necessary.
(2) Subject to the terms of any agreement reached with
SEDMB—
(a) the landholder, or landholders, of land on which, or adjoining, any
such fence is, or are jointly, liable to SEDMB for half the cost of the fencing
work in question; and
(b) if there is more than 1 such landholder—each is liable to
SEDMB for that proportion of the share to be borne by all such landholders that
the length of the fence situated on the landholder's land, or the landholder's
common boundary with the works or drainage reserve (as the case may be), bears
to the overall length of the fence.
(3) SEDMB may, no later than 3 months after completion of the fencing
work, by notice in writing addressed to a landholder who is liable to pay a
contribution under this section, require payment of the relevant amount and
specify the manner in which it is to be paid and the time within which it, or
any instalment, is to be paid.
(4) If default is made in payment of an instalment, the whole balance
outstanding under the notice falls due and payable.
(5) An amount due and payable under a notice under this
section—
(a) is recoverable by SEDMB as a debt; and
(b) is a charge over the land in question ranking in priority before all
other charges and mortgages (other than a charge or mortgage in favour of the
Crown or a Crown instrumentality).
(6) The Fences
Act 1975 does not apply in relation to fencing work carried out by
SEDMB in respect of works or a drainage reserve.
(1) SEDMB must, before 31 March in each year, submit a business plan
to the Minister for approval.
(2) A business plan
must be developed in consultation with the SE NRM Board.
(3) A business plan must—
(a) incorporate an implementation program for the next 3 financial
years that includes—
(i) an assessment of the staff and physical resources that SEDMB expects
to require during each of those years; and
(ii) an assessment of the infrastructure and land that SEDMB wishes to
acquire during each of those years; and
(iii) a work program that includes an assessment of the risks and
identifies priorities for each of those years in respect of SEDMB's functions
under this Act; and
(b) set out SEDMB's budget for the next financial year (including
estimates of its income and expenditure for that period); and
(c) contain such other information or material contemplated by this Act or
required by the Minister or the regulations.
(4) The Minister may approve a business plan submitted under this section
with or without modification.
(5) If a business plan is not approved by the Minister (with or without
modification) before the commencement of the period to which it relates, SEDMB
may proceed as if it were approved (but is bound by any modifications
subsequently required by the Minister).
(6) SEDMB may, at any time, submit a variation of its business plan to the
Minister for the Minister's approval (which may be with or without
modification).
(7) SEDMB must ensure that its business plan, as last approved under this
section, is available for public inspection on a website and at its principal
place of business during normal office hours.
(8) In this section—
financial year means—
(a) the period starting from a date specified by the Minister and ending
on 30 June following the commencement of this section; or
(b) a succeeding period of 12 months commencing on
1 July.
(1) SEDMB's staff consists of Public Service employees assigned to assist
SEDMB.
(2) SEDMB may, under an arrangement established by the Minister
administering an administrative unit of the Public Service, make use of the
services or staff of that administrative unit.
(1) For the purpose or in the course of performing its functions, SEDMB
may delegate a function—
(a) to a particular committee, reference group or any other person or
body; or
(b) to the person for the time being occupying a particular office or
position.
(2) A function delegated under this section may, if the instrument of
delegation so provides, be further delegated.
(3) A delegation—
(a) must be made by instrument in writing; and
(b) may be made subject to conditions specified in the instrument of
delegation; and
(c) is revocable at will and does not prevent the delegator from acting in
a matter.
(1) SEDMB must cause
proper accounts to be kept of its financial affairs and must cause financial
statements to be prepared in respect of each financial year.
(2) The Auditor-General may at any time, and must in respect of each
financial year, audit the accounts and financial statements required under
subsection (1).
(1) SEDMB must, on or before 30 November in each year, provide to the
Minister a report on its activities for the financial year ending on the
preceding 30 June (and need not provide a report under the Public
Sector Act 2009).
(2) The report must include an assessment of the extent to which SEDMB has
succeeded in implementing during the relevant financial year the aspects of the
Strategy for which SEDMB is responsible.
(3) The Minister
must cause a copy of a report provided to the Minister under this section to be
laid before both Houses of Parliament within 12 sitting days after
receiving the report.
Division 2—Authorised
officers and their powers
27—Appointment
of authorised officers
(1) The Minister
may appoint an authorised officer under the Natural
Resources Management Act 2004 to be an authorised officer for the
purposes of this Act.
(2) An appointment under
subsection (1)
may be made subject to conditions or limitations specified in the instrument of
appointment.
(3) An authorised officer appointed under
subsection (1)
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; and
(c) stating any limitations on the authorised officer's
authority.
(4) An authorised officer must, at the request of a person in relation to
whom the authorised officer intends to exercise any powers under this Act,
produce for the inspection of the person his or her identity card.
28—Powers
of authorised officers
(1) An authorised officer appointed under
section 27
may, subject to any conditions or limitations specified in the instrument of the
appointment, exercise his or her powers under the Natural
Resources Management Act 2004 for the purposes of the
administration and enforcement of this Act.
(2) This Act is to be read as if the provisions of Chapter 3
Part 6 of the Natural
Resources Management Act 2004 were incorporated in this Act
(subject to any modifications prescribed by regulation) together with any
definitions contained in that Act of terms used in those provisions.
Part 5—Operation,
maintenance etc of drainage system
Division 1—Vesting
of works related to drainage system
29—Vesting
of works related to drainage system
(1) The Minister may,
by notice in the Gazette, vest—
(a) specified private works related to the drainage system in SEDMB;
or
(b) specified SEDMB works related to the drainage system in another
specified person or body.
(2) The Minister may, by notice in the Gazette, vest specified works of
the Minister related to the drainage system in SEDMB.
(3) The Minister cannot issue a notice under
subsection (1)
except at the request of, or with the approval of, each person or body (other
than SEDMB) in whom works the subject of the notice are vested or are to be
vested.
(4) If works are vested or are to be vested in SEDMB, the Minister must
consult with SEDMB before issuing a notice under this section.
Division 2—Water
in drainage system is property of Crown
30—Water
in drainage system is property of Crown
(1) Water in the drainage system under this Act is the exclusive property
of the Crown.
(2) A person must not
take or use water from the drainage system except in accordance with an
authorisation of the Minister.
(3) The Minister must not authorise the taking or using of water from the
drainage system under this section unless the Minister is satisfied that the
taking or use of the water is consistent with the Strategy.
(4) An authorisation of the Minister under this section to take or use
water from the drainage system—
(a) may be subject to such conditions as the Minister thinks fit;
and
(b) ceases—
(i) on the day specified in the authorisation; or
(ii) if the water to be taken or used under the authorisation is from a
part of the drainage system that is, after the authorisation has been granted,
prescribed as a water resource under the Natural
Resources Management Act 2004—on the day on which the
regulation under which the water resource is prescribed comes into
operation,
whichever is the earlier.
(5) A person must not
take or use water from the drainage system in contravention of this
section.
Maximum penalty:
(a) in the case of a body corporate—$200 000;
(b) in the case of a natural person—$100 000 or imprisonment
for 2 years, or both.
(6) A person must
not contravene or fail to comply with an authorisation of the Minister under
this section or a condition to which such an authorisation is subject.
Maximum penalty:
(a) in the case of a body corporate—$70 000;
(b) in the case of a natural person—$35 000.
Expiation fee: $750.
(7) This section does
not apply if the water is taken or used—
(a) from a part of the drainage system that is a prescribed water resource
under the Natural
Resources Management Act 2004; or
(b) for firefighting in urgent circumstances.
Division 3—Management
agreements
(1) The Minister
may enter into an agreement (a management agreement) relating
to—
(a) the conservation or management of water, or the management of any
water table; or
(b) the preservation, conservation, management or re-establishment of any
key environmental feature; or
(c) any other matter associated with the drainage system,
with the owner of land within the South East.
(2) Without limiting the operation of
subsection (1),
a management agreement may, with respect to the land to which it
relates—
(a) require specified work or work of a specified kind be carried out on
the land, or authorise the performance of work on the land;
(b) restrict the nature of any work that may be carried out on the
land;
(c) prohibit or restrict specified activities or activities of a specified
kind on the land;
(d) provide for the management of any matter in accordance with a
particular management plan (which may then be varied from time to time by
agreement between the Minister and the owner of the land);
(e) provide for the adoption or implementation of measures to protect the
environment or programs to improve the environment;
(f) provide for the testing or monitoring of any key environmental
feature, or of any matter that may affect a key environmental feature;
(g) provide for a reduction in, or exemption from, a levy under
Part 6;
(h) provide for remission of rates or taxes in respect of the
land;
(i) provide for the Minister to pay to the owner of the land an amount as
an incentive to enter into the agreement.
(3) A term of a management agreement providing for the remission of rates
or taxes has effect despite any law to the contrary.
(4) The
Registrar-General must, on an application of a party to a management agreement,
note the agreement against the relevant instrument of title or, in the case of
land not under the provisions of the Real
Property Act 1886, against the land.
(5) A management agreement has no force or effect under this Act until a
note is made under
subsection (4).
(6) If a note has been entered under
subsection (4),
the agreement is binding on each owner of the land from time to time whether or
not the owner was the person with whom the agreement was made and despite the
provisions of the Real
Property Act 1886, and on any occupier of the land.
(7) The Registrar-General must, if satisfied on the application of the
Minister or the owner of the land that an agreement in relation to which a note
has been made under this section has been rescinded or amended, enter a note of
the rescission or amendment against the instrument of title, or against the land
(but must otherwise ensure that the note is not removed once made).
(8) Except to the extent that the agreement provides for the remission of
rates or taxes, a management agreement does not affect the obligations of an
owner or occupier of land under any other Act.
Division 4—Licence
to carry out work or activities relating to drainage system
This Division does not apply to a person undertaking a water affecting
activity under the Natural
Resources Management Act 2004 authorised (whether before or after
the commencement of this section) under Chapter 7 of that Act.
33—Certain
work and activities not to be carried out without licence
(1) A person must
not, except under a licence granted under this Division—
(a) undertake any work on land in the South East; or
(b) remove or alter any works relating to the drainage system (whether
constructed before or after the commencement of this Act) on land in the South
East; or
(c) close off or obstruct in any way any drainage hole,
if to do so would, or would be likely to, stop, increase, decrease or
otherwise affect the flow of water from or onto the land, or the flow of water
into a watercourse, wetland or the drainage system.
Maximum penalty:
(a) in the case of a body corporate—$200 000;
(b) in the case of a natural person—$100 000 or imprisonment
for 2 years, or both.
(2) A person must
not, except under a licence granted under this Division, erect a bridge or
construct a culvert or ford over, through or along any works relating to the
drainage system or a drainage reserve.
Maximum penalty:
(a) in the case of a body corporate—$200 000;
(b) in the case of a natural person—$100 000 or imprisonment
for 2 years, or both.
(3)
Subsections (1) and
(2) do not
apply—
(a) to a person who, in accordance with Part 6 of the Environment
Protection Act 1993—
(i) carries out works for—
(A) the construction or alteration of a building or structure for use for
a prescribed activity of environmental significance; or
(B) the installation or alteration of any plant or equipment for use for a
prescribed activity of environmental significance; or
(ii) undertakes a prescribed activity of environmental significance;
or
(b) to a council that, following consultation with SEDMB, carries out
works for—
(i) the construction or alteration of a building or structure for
stormwater or flood management activities in a township; or
(ii) the installation or alteration of any plant or equipment for
stormwater or flood management activities in a township.
(4) A person must
not, except under a licence granted under this Division, discharge a substance
into the drainage system.
Maximum penalty:
(a) in the case of a body corporate—$200 000;
(b) in the case of a natural person—$100 000 or imprisonment
for 2 years, or both.
(5)
Subsection (4) does not
apply to a council that, following consultation with SEDMB, discharges
stormwater into the drainage system in accordance with an approved stormwater
management plan.
(6) The regulations may prescribe exemptions from the operation of this
section (which exemptions may operate subject to such conditions as the
regulations may prescribe).
(1) SEDMB may grant a licence authorising a person to carry out work or an
activity specified in the licence.
(2) An application for a licence must be in a form approved by the
Minister and must be accompanied by the prescribed fee.
(3) A licence may be
subject to such conditions as SEDMB thinks fit and specifies in the
licence.
(4) The conditions of a licence may, by notice in writing addressed to the
holder of the licence, be varied, revoked or added to at any time by
SEDMB.
(5) A person who contravenes or fails to comply with a condition of a
licence under this Division is guilty of an offence.
Maximum penalty:
(a) in the case of a body corporate—$200 000;
(b) in the case of a natural person—$100 000 or imprisonment
for 2 years, or both.
(6) If an application for a licence relates to work that is to be carried
out within a River Murray Protection Area and is within a class of applications
prescribed by the regulations for the purposes of this section (which class may
be prescribed so as to consist of applications for all such licences), SEDMB
must, before making its decision on the application—
(a) consult the Minister for the River Murray; and
(b) comply with the Minister's directions (if any) in relation to the
application (including a direction that the application not be granted, or that
if it is to be granted, then the licence be subject to conditions specified by
the Minister).
(7) If an application for a licence relates to the discharge of a
substance into the drainage system and is within a class of applications
prescribed by the regulations for the purposes of this section (which class may
be prescribed so as to consist of applications for all such licences), SEDMB
must, before making its decision on the application—
(a) take into account the Environment
Protection Act 1993 and the provisions of any relevant environment
protection policy under that Act; and
(b) —
(i) consult the Minister responsible for the administration of the Environment
Protection Act 1993; and
(ii) comply with the Minister's directions (if any) in relation to the
application (including a direction that the application not be granted, or that
if it is to be granted, then the licence be subject to conditions specified by
the Minister).
Division 5—Discharge
by council of stormwater into drainage system
35—Discharge
by council of stormwater into drainage system
A council must not discharge stormwater into the drainage system
except—
(a) in accordance with an approved stormwater management plan following
consultation with SEDMB; or
(b) under a licence granted under
Division 4.
Note—
See—
(a)
section 33(4) and
(5); and
(b) Division 4 of Schedule 1A of the Local
Government Act 1999 for the action that may be taken against a
council that fails to comply with an approved stormwater management
plan.
Division 6—Drainage
system not to be interfered with
36—Drainage
system not to be interfered with
(1) A person must not, without the permission of SEDMB, act in a manner
that the person knows will interfere with, or is likely to interfere
with—
(a) the drainage system; or
(b) works related to the drainage system, or the operation of any such
works; or
(c) a drainage reserve; or
(d) a road adjoining a drainage reserve; or
(e) any other aspect of the drainage system.
Maximum penalty:
(a) in the case of a body corporate—$200 000.
(b) in the case of a natural person—$100 000 or imprisonment
for 2 years, or both.
(2) A person must not, without the permission of SEDMB, act in a manner
that the person ought reasonably to know is likely to interfere
with—
(a) the drainage system; or
(b) works related to the drainage system, or the operation of any such
works; or
(c) a drainage reserve; or
(d) a road adjoining a drainage reserve; or
(e) any other aspect of the drainage system.
Maximum penalty:
(a) in the case of a body corporate—$50 000;
(b) in the case of a natural person—$25 000.
(3) The permission of SEDMB under this section may be
granted—
(a) as part of a licence; or
(b) in such other manner as SEDMB thinks fit.
(4) The granting of
permission under this section may be subject to such conditions as SEDMB thinks
fit.
(5) A person must not
contravene or fail to comply with a condition of permission imposed under
subsection (4).
Maximum penalty: $50 000.
(6)
Subsection (5)
does not limit the operation of
section 34(3).
(1) SEDMB may issue a protection order—
(a) for the purpose of addressing an activity that, in the opinion of
SEDMB, is having an adverse effect on—
(i) the operation or management of any part of the drainage system;
or
(ii) a wetland or watercourse; or
(iii) a key environmental feature; or
(b) for the purpose of securing compliance with—
(i) a management agreement; or
(ii) a condition of a licence; or
(iii) a condition of permission of SEDMB under
Division 6;
or
(iv) any other requirement imposed by or under this Act.
(a) must be in the form of a written notice served on the person to whom
the notice is issued; and
(b) must specify the person to whom it is issued (whether by name or
description sufficient to identify the person); and
(c) must specify the purpose for which the order is issued; and
(d) may impose any
requirement reasonably required for the purpose for which the order is issued,
including either or both of the following:
(i) a requirement that a person discontinue, or not commence, a specified
activity indefinitely or for a specified time or until further notice by
SEDMB;
(ii) a requirement that a person take specified action within a specified
period.
(3) Without limiting
the generality of
subsection (2), a
protection order may require the owner of land—
(a) to refrain from undertaking, or to desist from undertaking, any work
or any land or water management practice, or desist from causing or facilitating
the movement of any water;
(b) to carry out specified works on the land;
(c) to remove specified works, or any other specified thing, from the land
or a specified part of the land;
(d) to undertake any measure or program to protect or improve the
environment;
(e) to restore any land or aspect of the environment to its previous
state.
(4) An authorised officer may, if of the opinion that urgent action is
required under this section, issue an emergency protection order imposing
requirements of a kind referred to in
subsection (2)(d)
or
(3).
(5) An emergency protection order may be issued orally.
(6) If an emergency protection order is issued, the order will cease to
have effect on the expiration of 72 hours from the time of its issuing
unless confirmed by a written protection order issued by SEDMB and served on the
relevant person.
(7) SEDMB may, by written notice served on a person to whom a protection
order has been issued, vary or revoke the order.
(8) A person to whom a protection order is issued must comply with the
order.
Maximum penalty:
(a) in the case of a body corporate—$200 000.
(b) in the case of a natural person—$100 000.
(9) A person cannot claim compensation from SEDMB or the Crown (or from an
authorised officer) in respect of a requirement imposed by a protection
order.
(a) any work has been carried out or any other thing done by a person in
contravention of this Part; or
(b) a person contravenes or fails to comply with a condition of a licence;
or
(c) SEDMB is of the opinion that works constructed by a person under a
licence (whether before or after the commencement of this Division) are having
an adverse effect on the proper management or conservation of surface or
underground water in the South East,
SEDMB may issue an order (a reparation order) under this
section requiring the person to take specified action within a specified period
to remedy the contravention or non-compliance, or to ensure the proper
management or conservation of surface or underground water (as the case may
be).
(2) A reparation order—
(a) must be in the form of a written notice served on the person to whom
it is issued; and
(b) must specify the person to whom it is issued (whether by name or
description sufficient to identify the person); and
(c) must state the grounds on which it is made with reasonable
particularity; and
(d) may include requirements for action to be taken (which may include the
complete removal of any work)—
(i) to remedy the contravention or non-compliance; or
(ii) to ensure the proper management or conservation of surface or
underground water; and
(e) may include or address any other prescribed matter.
(3) SEDMB may, by written notice served on a person to whom a reparation
order has been issued, vary or revoke the order.
(4) A person to whom a reparation order is issued must comply with the
order.
Maximum penalty:
(a) in the case of a body corporate—$200 000.
(b) in the case of a natural person—$100 000.
(5) A person cannot claim compensation from SEDMB or the Crown (or from
any authorised officer) in respect of a requirement imposed by a reparation
order.
(1) The
Registrar-General must—
(a) on application by SEDMB under this section; and
(b) on lodgement of a copy of an order under this Division,
note the order against the instrument of title of the land to which the
order relates or, in the case of land not under the provisions of the Real
Property Act 1886, against the land.
(2) When a note of an order has been entered under
subsection (1),
the order is binding on each owner and occupier from time to time of the land
and this Division will apply as if the order had been issued to each such
person.
(3) The
Registrar-General must, on application by SEDMB, enter a note of the revocation
of an order against the relevant instrument of title, or against the relevant
land (but must otherwise ensure that the note is not removed once
made).
(4) SEDMB must make application under
subsection (3)—
(a) on revocation of the order; or
(b) on full compliance with any requirements of the order; or
(c) if SEDMB takes action under this Division to carry out the
requirements of the order—on payment to SEDMB of the amount recoverable by
SEDMB under this Division in relation to the action so taken.
40—Action
on non-compliance with order
(1) If the
requirements of an order under this Division are not complied with, SEDMB may
take any action required by the order.
(2) Action taken by
SEDMB under
subsection (1) may
be taken on SEDMB's behalf by an authorised officer, a member of SEDMB's staff,
or another person authorised by SEDMB for the purpose.
(3) A person must not hinder or obstruct SEDMB or an authorised officer or
another officer or person taking action under
subsection (2).
Maximum penalty: $100 000.
(4) The reasonable
costs and expenses incurred by SEDMB in taking action under this section may be
recovered by SEDMB as a debt from the person who failed to comply with the
requirements of the relevant order.
(5) If an amount is recoverable from a person by SEDMB under
subsection (4)—
(a) SEDMB may, by notice in writing to the person, fix a period, being not
less than 28 days from the date of the notice, within which the amount must
be paid by the person (and, if the amount is not paid by the person within that
period, the person is liable to pay interest charged at the prescribed rate per
annum on the amount unpaid); and
(b) the amount together with any interest so payable is, until paid, a
charge in favour of SEDMB on any land owned by the person in relation to which
the order is noted under this Division.
(6) A charge imposed on land by this section has priority
over—
(a) any prior charge on the land (whether or not registered) that operates
in favour of a person who is an associate of the owner of the land;
and
(b) any other charge on the land, other than a charge registered prior to
noting of the order in relation to the land.
(7) A person cannot claim compensation from SEDMB or the Crown (or from
any person acting under
subsection (2)) in
respect of any action taken under this section.
(1) Applications may be made to the ERD Court for 1 or more of the
following orders:
(a) if a person has engaged, is engaging or is proposing to engage in
conduct in contravention of this Act—an order restraining the person from
engaging in the conduct and, if the Court considers it appropriate to do so,
requiring the person to take any specified action, including specified action to
make good or address any impact or harm that has occurred as a result of that
conduct;
(b) if a person has refused or failed, is refusing or failing or is
proposing to refuse or fail to take any action required by this Act (including
by failing to comply with an order under
Division 7)—an
order requiring the person to take that action (including to comply with an
order under that Division);
(c) if the Court considers it appropriate to do so—an order against
a person who has contravened this Act for payment (for the credit of the
Consolidated Account) of an amount in the nature of exemplary damages determined
by the Court.
(2) The power of the ERD Court to make an order restraining a person from
engaging in conduct of a particular kind may be exercised—
(a) if the Court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the Court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the Court that, in the event that an order is not
made, it is likely that the person will engage in conduct of that
kind—whether or not the person has previously engaged in conduct of that
kind and whether or not there is an imminent danger of any harm, damage or delay
if the first-mentioned person engages in conduct of that kind.
(3) The power of the ERD Court to make an order requiring a person to take
specified action may be exercised—
(a) if the Court is satisfied that the person has refused or failed to
take that action—whether or not it appears to the Court that the person
intends to refuse or fail again, or to continue to refuse or fail, to take that
action; or
(b) if it appears to the Court that, in the event that an order is not
made, it is likely that the person will refuse or fail to take that
action—whether or not the person has previously refused or failed to take
that action and whether or not there is an imminent danger of any harm, damage
or delay if the person refuses or fails to take that action.
(4) In assessing an amount to be ordered in the nature of exemplary
damages, the ERD Court may have regard to any matter it considers
relevant.
(5) The power to order payment of an amount in the nature of exemplary
damages may only be exercised by a Judge of the ERD Court.
(6) An application may be made without notice to the respondent and, if
the ERD Court is satisfied on the application that the respondent has a
case to answer, it may grant permission to SEDMB to serve a summons requiring
the respondent to appear before the Court to show cause why an order should not
be made under this section.
(7) If, on an application under this section or before the determination
of the proceedings commenced by the application, the ERD Court is satisfied
that, in order to preserve the rights or interests of parties to the proceedings
or for any other reason, it is desirable to make an interim order under this
section, the Court may make such an order.
(8) An interim order—
(a) may be made on an application made without notice to the respondent;
and
(b) may be made subject to such conditions as the ERD Court thinks
fit; and
(c) will not operate after the proceedings in which it is made are finally
determined.
(9) The ERD Court may, if it considers it appropriate to do so, either on
its own initiative or on the application of a party, vary or revoke an order
previously made under this section.
(10) The ERD Court may, in any proceedings under this section, make such
orders in relation to the costs of the proceedings as it thinks just and
reasonable.
42—Interim
restraining orders to prevent harm to key environmental
features
(1) If it appears that—
(a) an activity may cause, or may be causing, harm to a key environmental
feature; but
(b) there is insufficient information available to SEDMB to enable SEDMB
to assess the likelihood of harm, or the extent or impact of harm, to the key
environmental feature; and
(c) an order under this section is necessary to ensure the protection of
the key environmental feature pending the acquisition and assessment of
information by SEDMB,
the ERD Court may, on the application of SEDMB, issue an interim
restraining order under this section requiring a person to discontinue, or not
commence, a specified activity.
(2) An order under this section takes effect on service of notice of the
order on the person to whom it is directed and ceases to have effect after a
period, not exceeding 28 days, specified in the order unless extended by
the ERD Court on application by SEDMB.
(3) The ERD Court may, by subsequent order, vary or revoke an order made
by the Court under this section.
(4) An application by SEDMB for an order under this section may be made
without notice to the person in relation to whom the order is sought.
(5) A person must comply with the terms of an order under this
section.
Maximum penalty: $50 000.
(6) A person cannot claim compensation from SEDMB or the Crown in respect
of the issuing of an order under this section.
(1) A right of appeal lies to the ERD Court in the following
cases:
(a) an applicant for a licence under
Division 4 may
appeal against a decision of SEDMB to refuse a licence;
(b) the holder of a licence may appeal against a decision of SEDMB to vary
or add to the conditions to which the licence is subject;
(c) a person who has been required by SEDMB by a notice under
Division 7 to take
specified steps may appeal against a requirement of the notice.
(2) An appeal must be instituted in the prescribed manner and form within
6 weeks of the decision or requirement appealed against or within such
further time as the ERD Court considers to be reasonable in the
circumstances.
(3) On an appeal, the ERD Court may—
(a) affirm, vary or quash the decision or requirement appealed against or
substitute any decision or requirement that should have been made in the first
instance; or
(b) remit the subject matter of the appeal to SEDMB for further
consideration.
44—Decision
or requirement may be suspended pending appeal
(1) Where a decision
or requirement has been made by SEDMB and SEDMB or the ERD Court is
satisfied that an appeal against the decision or requirement has been
instituted, or is intended, SEDMB or the Court may suspend the operation of the
decision or requirement until the determination of the appeal.
(2) A suspension under
subsection (1) may
be terminated at any time by SEDMB or the ERD Court (as the case may
require).
Part 6—Contribution
to funding of drainage system
45—Contribution
to funding of drainage system
(1) The Minister may levy contributions from the following
persons:
(a) landholders;
(b) a person whose activities, in the opinion of the Minister, contribute
to the need for the drainage system;
(c) any other person who, in the opinion of the Minister, benefits from
the drainage system.
(a) a contribution will not be levied in respect of land to the extent
that a management agreement relating to the land provides for a reduction in, or
exemption from, the levy; and
(b) the Minister
may, by notice in the Gazette, provide for a reduction in, or exemption from,
the levy.
(3) The Minister must, before levying a contribution under this
Part—
(a) carry out an assessment of the expected social impact of the
imposition of any such levy, including an assessment of the relative private and
public benefits of the provision and management of the drainage system (a
social impact assessment); and
(b) consult with SEDMB.
(4) The Minister must review the social impact assessment if, in the
opinion of the Minister, there has been in the period during which a
contribution is levied significant change in the social and economic
circumstances of the persons, or classes of persons, on whom contributions are
levied.
(5) An exemption under
subsection (2)(b)
may operate in respect of a period commencing before publication of the
notice.
(6) The money received by the Minister under this section will, after
deduction of administrative costs relating to the collection of contributions,
be applied towards the purposes of this Act, including towards the cost to SEDMB
of the carrying out of its functions.
(7) The Minister may, by notice in the Gazette, fix a rate, or rates, of
contribution for the purposes of this section in respect of any specified
financial year or years.
(8) Rates of contribution may vary according to factors specified by the
Minister in the notice.
(9) The Minister may, by notice in the Gazette, vary or revoke a notice
under this section.
(10) The Minister may establish a scheme for the collection of
contributions under this section.
(11) A scheme may, for example, make provision for any of the
following:
(a) an accelerated payment option or options under which contributions are
discounted;
(b) an extended payment option or options under which contributions
include an interest component;
(c) payment by instalments;
(d) recalculation of contributions in the event of a person changing
payment options;
(e) the payment of refunds in specified circumstances;
(f) an arrangement under which contributions are collected by SEDMB, or a
person prescribed for the purpose, on behalf of the Minister.
(12) If an amount
payable under this section is not paid on or before the date on which it falls
due—
(a) the amount will be regarded as being in arrears; and
(b) a fine of 5% of the amount is payable; and
(c) on the expiration of each month from that date, interest at a rate not
exceeding the prescribed percentage is payable in respect of the amount in
arrears (including the amount of any previous unpaid fine and
interest).
(13) The Minister may remit an amount payable under
subsection (12)
in whole or in part.
(14) A contribution or other amount payable under this
section—
(a) if in arrears, is recoverable by the Minister as a debt due to the
Crown; and
(b) is a charge over the land to which it relates ranking in priority
before all other charges and mortgages (other than a charge or mortgage in
favour of the Crown or an instrumentality of the Crown).
(15) In this section—
prescribed percentage means a percentage calculated as
follows:
where—
DBR is the designated bank rate for that financial
year
designated bank rate, for a particular financial year, means
a rate designated by the regulations for the purposes of this item at the
commencement of the financial year
p is the prescribed percentage
private land means land that is not—
(a) unalienated land of the Crown; or
(b) vested in or under the care, control or management of SEDMB or some
other specified person or authority.
(1) Nothing done
under this Act will be taken to affect native title in any land or
water.
(2) However,
subsection (1)
does not apply if the effect is valid under a law of the State or the Native
Title Act 1993 of the Commonwealth.
No act or omission undertaken or made by the Minister or any other person
engaged in the administration of this Act, or by another person or body acting
under the authority of the Minister, with a view to exercising or performing a
power or function under this Act (including by causing the level of any water
resource to rise or fall, inundating any place, causing or allowing any water to
escape or to be redirected, taking action that may damage any land or property,
or adversely affecting the use or enjoyment of any land or property), gives rise
to any liability (whether based on a statutory or common law duty to take care
or otherwise) against the Minister, person or body, or the Crown.
(1) Subject to this
section, the Minister may delegate to a body or person (including a person for
the time being holding or acting in a specified office or position) a function
or power of the Minister under this Act, or under any other Act that, in the
opinion of the Minister, is relevant to the operation or administration of this
Act.
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) is revocable by the Minister at will; and
(d) does not derogate from the power of the Minister to act in any
matter.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(4) The Minister cannot delegate the function under
Part 5
Division 1 or this section.
49—Power
to waive or defer payments
(1) The relevant authority may, if it thinks good reason exists for doing
so, waive or defer payment of any amount due and payable to it by any person
under this Act.
(2) The relevant authority may waive or defer payment on such conditions
as it thinks fit, including a condition providing for the payment of interest on
an amount deferred.
(3) In this section—
relevant authority means SEDMB or the Minister, as the case
requires.
Proceedings for an offence against this Act may be commenced within
5 years after the date on which the offence is alleged to have been
committed.
If a body corporate is guilty of an offence against this Act, the manager
and each member of the governing body of the body corporate is guilty of an
offence against this Act and liable to the same penalty as may be imposed for
the principal offence when committed by a natural person unless the manager or
member (as the case may be) proves that he or she could not by the exercise of
due diligence have prevented the commission of the offence.
For the purposes of this Act, an act or omission of an employee or agent
will be taken to be the act or omission of the employer or principal unless it
is proved that the act or omission did not occur in the course of the employment
or agency.
(1) A person convicted of an offence against a provision of this Act in
respect of a continuing act or omission—
(a) is liable, subject to any determination of a court, in addition to the
penalty otherwise applicable to the offence, to a penalty for each day during
which the act or omission continued of not more than one tenth of the maximum
penalty prescribed for that offence; and
(b) is, if the act or omission continues after the conviction, subject to
any determination of a court, guilty of a further offence against the provision
and liable, in addition to the penalty otherwise applicable to the further
offence, to a penalty for each day during which the act or omission continued
after the conviction of not more than one tenth of the maximum penalty
prescribed for the offence.
(2) If an offence consists of an omission to do something that is required
to be done, the omission will be taken to continue for as long as the thing
required to be done remains undone after the end of the period for compliance
with the requirement.
(1) It is a defence to a charge of an offence against this Act for the
defendant to prove 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.
(2) This section does not apply in relation to a person who is charged
with an offence under
section 51.
(1) An allegation by the prosecution in any proceedings for an offence
against this Act that on a specified day—
(a) a specified person was or was not the holder of a licence, permit or
other authority under this Act; or
(b) a specified person was or was not the owner or occupier of specified
land; or
(c) a specified person was or was not permitted to do something;
or
(d) specified works relating to the drainage system were SEDMB works;
or
(e) a specified piece of land constituted a drainage reserve under the
care, control and management of a specified authority; or
(f) specified land fell within SEDMB's area under this Act; or
(g) a specified person was an authorised officer or other person engaged
in the administration of this Act,
will, in the absence of proof to the contrary, be taken to have been
proved.
(2) In any proceedings for an offence against this Act, if it is proved
that—
(a) works relating to
the drainage system have been constructed, removed, altered, closed off or
obstructed in any way on land in the South East; or
(b) a bridge has been erected or a culvert or ford constructed over,
through or along any works relating to the drainage system on land in the
South East; or
(c) the drainage system, or works relating to the drainage system, or the
operation of any such works, have been otherwise interfered with,
it will be presumed, in the absence of proof to the contrary, that the
occupier of the land on which the drainage system, works relating to the
drainage system, bridge, culvert or ford is situated, or a person acting on his
or her behalf, was the person who—
(d) constructed, removed, altered, closed off or obstructed the works
relating to the drainage system; or
(e) erected the bridge or constructed the culvert or ford.
(3) In any proceedings for an offence against this Act, if it appears that
an alleged fact has been determined by the use of an electronic, sonic, optical,
mechanical or other device by an authorised officer or person assisting an
authorised officer, the alleged fact will, in the absence of proof to the
contrary, be taken to have been proved.
(4) In any proceedings for an offence against this Act, a document
purporting to be certified by the Minister, SEDMB or an authorised officer as an
accurate copy of a licence, permit or other authority under this Act will, in
the absence of proof to the contrary, be taken to be an accurate copy of the
licence, permit or authority in question.
(1) The Governor may
make such regulations as are contemplated by this Act or as are necessary or
desirable for the purposes of this Act.
(2) Without limiting the generality of
subsection (1),
the regulations may—
(a) provide for the granting by the Minister of conditional or
unconditional exemptions from provisions of this Act; and
(b) provide that any matter or thing is to be determined, dispensed with,
regulated or prohibited according to the discretion of the Minister, SEDMB or
another prescribed person or body; and
(c) fix fees and provide for their payment, recovery or waiver;
and
(d) fix penalties not exceeding $10 000 for breaches of the
regulations.
(3) Any regulation under this Act may be of general or limited application
according to—
(a) the classes of person, land or works; or
(b) the circumstances; or
(c) any other specified factor,
to which the regulation is expressed to apply.
Schedule 1—Related
amendments, repeal and transitional provisions
Part 1—Interpretation
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
2—Amendment
of section 3—Interpretation
Section 3(1), definition of wetland—after
paragraph (b) insert:
or
(ba) by the South East Drainage and Wetland Management Strategy prepared
under the South
East Drainage System Operation and Management Act 2012,
3—Amendment
of section 129—Activities not requiring permit
Section 129(1)(i)—delete "Part 3 Division 2 of the
South
Eastern Water Conservation and Drainage Act 1992" and
substitute:
the South
East Drainage System Operation and Management Act 2012
Part 3—Repeal
4—Repeal
of South Eastern Water Conservation and Drainage
Act 1992
The South
Eastern Water Conservation and Drainage Act 1992 is
repealed.
Part 4—Transitional
provisions
5—South
Eastern Water Conservation and Drainage Board continues as South Eastern
Drainage Management Board
(1) The South Eastern Drainage Management Board or SEDMB is the same body
corporate as the South Eastern Water Conservation and Drainage Board continued
under the Drainage Act.
(2) A reference in an Act or instrument or document to the South Eastern
Water Conservation and Drainage Board is (where the context admits) to be read
as a reference to the South Eastern Drainage Management Board or SEDMB and to be
construed accordingly.
(3) The offices of the members of the South Eastern Water Conservation and
Drainage Board are vacated on the commencement of this subclause.
On the commencement of this clause—
(a) the offices of the Eight Mile Creek Water Conservation and Drainage
Advisory Committee under the Drainage Act are vacated; and
(b) the offices of the members of any other advisory committee under the
Drainage Act are vacated.
7—Upper
South East Drainage Network Management Strategy
On the commencement of this clause, the Upper South East Drainage Network
Management Strategy in force under section 43A of the Upper
South East Dryland Salinity and Flood Management Act 2002 will be
taken to have been adopted by the Minister as the South East Drainage and
Wetland Management Strategy under section 8 of this Act (subject to such
modifications as the Minister thinks fit).
8—Management
plan continues as business plan
On the commencement of this clause, the management plan of the South
Eastern Water Conservation and Drainage Board in existence immediately before
the repeal of the Drainage Act will be taken to be the first business plan
for SEDMB for the purposes of
section 22 of this
Act.
An authorisation of the Minister in force under section 37 of the
Drainage Act immediately before the repeal of that Act will be taken to be an
authorisation of the Minister under
section 30 of this
Act.
A licence in force under Part 3 Division 2 of the Drainage Act
immediately before the repeal of that Act will be taken to be a licence granted
under
Part 5
Division 4 of this Act.
A fencing agreement between a landholder and the South Eastern Water
Conservation and Drainage Board in force under section 40 of the Drainage
Act immediately before the repeal of that Act will be taken to be a fencing
agreement between the landholder and SEDMB under
section 21 of
this Act (and, hence, any amount due and payable to the South Eastern Water
Conservation and Drainage Board under a notice under section 40 of the
Drainage Act still outstanding on the repeal of that Act will be due and payable
to SEDMB under
section 21 of this
Act).