Bills

Landscape South Australia Bill

Introduction and First Reading

The Hon. D.J. SPEIRS (Black—Minister for Environment and Water) (15:42): Obtained leave and introduced a bill for an act to promote sustainable and integrated management of the state’s landscapes, to make provision for the protection of the state’s natural resources, to repeal the Natural Resources Management Act 2004, and to make consequential amendments to other acts, and for other purposes. Read a first time.

Second Reading

The Hon. D.J. SPEIRS (Black—Minister for Environment and Water) (15:42): I move:

That this bill be now read a second time.

I am pleased to introduce a bill to repeal the Natural Resources Management Act and replace it with a new landscape South Australia act. This fulfils the government's pre-election commitment to introduce a bill into parliament by March 2019 that puts people back at the heart of managing our natural resources and delivers a system that is more focused on working in partnerships, practical programs and on-ground works.

South Australia's landscapes—our rivers and plains, forests and hills, coasts and seas—are some of the most beautiful in the world. The sustainable management of natural resources is vital to our state's economy, primary production and other industries, including mining and tourism, as well as our regional communities and metropolitan Adelaide. Natural resources are also of critical importance to Aboriginal communities—with Aboriginal people's spiritual, social, cultural and economic priorities and practices coming from their relationship with their traditional lands and waters.

We need a landscape that is more resilient towards the impacts of climate change. South Australia is already experiencing less rainfall, warmer conditions with prolonged heatwaves, sea level rise and increased frequency of natural hazards, including drought, bushfires and extreme storms and flooding. We also need a biodiverse landscape with healthy native fauna and flora. We have learned what works and what does not, and we have heard loud and clear that people are looking for a simpler, more effective system.

The bill establishes a new framework for how we manage our state's natural resources based around this vision that provides a simpler and more accessible system by removing unnecessary bureaucracy, simplifying procedures to improve responsiveness and providing greater flexibility for improving best practice over time. Key elements of the reforms are:

replacing regional natural resource management boards with new arms-length regional landscape boards and giving communities and landholders a greater voice in how natural resources are managed;

a new Green Adelaide board focused on seven priorities that will help Adelaide become the most ecologically vibrant city in the world;

a cap on increases to land and water levies to reduce cost-of-living pressures for all South Australians; and

more action on ground, with a focus on partnerships, a simpler approach to planning and creating opportunities for natural resources management focused programs and initiatives in regional communities.

These reforms have been the subject of extensive community engagement, and I would like to thank everyone who contributed through their feedback on their future vision for South Australia's landscapes. Over 1,000 people attended 60 community, stakeholder and staff workshops held across the state between August and October 2018. Over 250 written submissions were received from the community and stakeholders on the discussion paper, 'Managing our landscapes: conversations for change'.

I personally attended many of the workshops and spoke with people from across South Australia about what the future of natural resources management should look like and what was important to them. What I heard was that people want a productive and biodiverse landscape. Our regional communities have said that they want a system of managing natural resources that focuses on the basics: delivering effective water management; pest, plant and animal control; soil and land management; and support for broader sustainable primary production programs.

People want a simpler system, a greater voice in decision-making, as it impacts on the ground, and board members who reflect their communities. What is clear is that people seek less red tape to reduce administrative burden and less repetitive planning and more on-ground delivery through partnerships with other organisations, groups and individuals.

More broadly, landscape education remains an important part of connecting urban and rural communities with nature, building awareness of the importance of sustainable primary production, and managing natural resources sustainably. When people fall in love with nature, they put more effort into conserving and revitalising it and making sure it is there to pass on to future generations. People also want the new boards to be able to have a continued role in delivery of nature education in South Australia's schools.

Embedding climate change in how we manage our natural resources is fundamental to further coordinating adaptive practices we undertake now to build a climate-resilient landscape thriving with biodiversity. I was delighted to see the level of enthusiasm embracing a bold climate-resilient vision for greening the metropolitan area through creation of Green Adelaide. There was overwhelming support for the government's commitments to establish Green Adelaide and cap levies.

During consultation, great efforts were made to connect with all who care for land, including traditional owners. I am committed to ensuring that cultural, scientific and specialist expertise and learnings are respected and embedded into the decision-making processes at regional board level to achieve the practical outcomes that our communities seek. Together, these conversations have shaped and informed the bill.

I want to emphasise that, while the simpler system in the bill moves away from prescribing detailed consultation processes, collaboration and consultation with key partners and communities remain at the heart of natural resources management. I now turn to some of the bill's key features. New regional landscape boards will replace the current natural resources management boards, with a new approach to setting regional boundaries that place more emphasis on economic, social and cultural connections and local government boundaries and areas.

For the first time, regional communities will have a say on who sits on a regional board through community elections. Community elections align with the principle of decentralised decision-making as a mechanism for empowering regional communities. Regional boards will have three elected and four ministerial-appointed members to ensure there is a good mix of skills, knowledge and experience, as well as broad community representation, including from young people. Eligibility to stand and vote in elections will be based on eligibility to vote in local government elections, providing an opportunity to leverage off local government election arrangements where it is cost effective to do so.

There may be some situations where issues specific to a particular region mean that community elections are not practical or desirable at a given point in time. To manage this, the bill provides flexibility for all board members to be appointed by the minister in special circumstances. Boards will have greater control over day-to-day decision-making, including setting their own budgets through an annual business plan. Boards will have greater autonomy over their staffing arrangements, with general managers being accountable to their boards and responsible for employing staff.

The new landscape boards will be bodies corporate and, as instrumentalities of the Crown and being subject to audit by the Auditor-General, will be public authorities for the purposes of the Public Finance and Audit Act. They will be required to consider and promote the act's objects in exercising their functions. The new boards will be required to work collaboratively and have the ability to establish committees, reflecting the importance of ongoing discussion with communities and landholders so that boards have a good understanding about what the issues are in their region.

Managing natural resources, with an emphasis on soil quality, water management and pest plant and animal control, will be a function of the new boards to build resilience in the face of change and facilitate integrated landscape management. Our coasts and seas immediately adjacent to land comprise part of the features included in the landscape, such that the impacts of on-land practices on our coasts are considered in an integrated 'hills to sea' approach to natural resource management, as appropriate. Boards will be able to support community efforts to restore and maintain the landscape, such as through revegetation and other nature stewardship initiatives. There is also continued alignment with commonwealth funding programs, including for biodiversity outcomes.

Each board, including Green Adelaide, will be required to establish a grassroots grants program based on a proportion of their budget or amount determined by the minister. Grants will be available to small grassroots community organisations, volunteer groups and individuals. Reflecting the feedback that people wanted boards to have a closer connection with their local communities and stronger relationships with community organisations, grassroots grants programs will be administered by each regional landscape board, rather than being centrally administered.

Boards will also have a mandate to look at opportunities to deliver programs and projects through partnerships with organisations, including local councils, as well as groups and individuals. This will create jobs and drive further investment, empowering and reinvigorating regional communities in the management of natural resources. Each board will have a high-level, five-year regional landscape plan that sets out five priorities for managing the region's landscapes.

Rather than prescriptive consultation requirements, each board will set their own consultation processes, informed by best practice engagement guidelines. This simpler approach to regional planning aims to refocus effort and resources on delivering outcomes on-ground for the benefit of the community. Boards will also remain responsible for water allocation planning in their region but with provision for the minister to step in if there are delays in water allocation planning processes.

During consultation on the landscape reforms, many people in the community wanted regional landscape boards to play a role in assisting in the management of native animals that adversely affect the natural or built environments. Currently, there are different approaches to this across the state. The bill will establish this as a function for all boards through activities such as connecting landholders and relevant authorities and providing information. Permits issued under the National Parks and Wildlife Act will still be required and the existing functions of the other bodies and people involved in this area will continue.

In giving boards greater autonomy and empowering local communities through a greater role in delivery, the bill also provides other mechanisms to ensure both accountability and cross-regional and statewide coordination and delivery. Consulting with people interested and affected by plans will still be a fundamental part of the process of all levels of planning, with a new state landscape strategy providing a statewide strategy for natural resources management in this state that is shaped and informed by regional issues and perspectives.

As minister, I will have the ability to set policies on common issues related to natural resources management, such as pest plant and animal control, as well as the administration of the act. This provides for a coordinated approach and minimises duplication of effort. The bill also provides for the continuation of statewide coordination of the monitoring, evaluation and reporting on the state and condition of natural resources—supporting the state's broader environmental reporting framework and the ability to connect this with regional monitoring and reporting efforts.

Green Adelaide: the bill delivers the government's commitment to establish Green Adelaide—a new board charged with delivering on the exciting vision of Adelaide as a climate resilient and ecologically vibrant city that is a world leader delivering innovative solutions. While Green Adelaide will be a landscape board—with the same functions and powers—it will focus on seven priorities:

coastal management;

water resources and wetlands;

water sensitive urban design;

green streets and flourishing Parklands;

fauna and flora in the urban environment;

controlling pest animals and plants, and

nature education.

These priorities will in turn support other outcomes, including climate resilience, climate change mitigation and community wellbeing, with the recent heatwave highlighting the importance of greening our city to ensure it is a livable city that residents and visitors enjoy into the future. Green Adelaide will also have scope to share this expertise across the state, for example, by collaborating with other landscape boards or local councils wanting to pursue initiatives related to these priorities.

As a regional landscape board, Green Adelaide will have a mandate to collaborate and partner with councils and other bodies. Its activities and investment will be guided by a regional plan, developed in consultation with the community and other stakeholders. Given the need for board members to have specialist expertise, all members will be appointed by the minister.

Levies: increases to natural resources management levies have become an additional cost-of-living pressure for South Australian households. The government originally intended capping levies at a rate set by an independent body. After consulting on whether levies should be capped by an independent body or by reference to the consumer price index rate set by the Australian Bureau of Statistics, the cap on levies is enshrined in the bill by reference to the consumer price index rate, being the most cost-effective option.

In exceptional circumstances, the minister will be able to approve increases to the land levy above CPI. Increases to the water levy above CPI will also need to be approved by the minister. Any increase to land or water levies above CPI, imposition of a levy in an area of the state where it has not previously applied or a change in basis to the levy, must be tabled in parliament and may be subject to disallowance.

There will also be greater transparency about how levy money is spent, with each board being required to have an annual business plan outlining the board's budget for the forthcoming financial year and to report annually on actual expenditure of the levy. In council areas, the land levy will continue to be collected by councils, with boards setting the amount to be collected each year under the CPI cap. This is a cost-effective way to collect the levy, maximising the funding available for on-ground delivery.

There was overwhelming community support for distributing some levy money from the Adelaide metropolitan area to regional South Australia. Residents of Adelaide value our regional landscapes and enjoy the benefits that they provide, from meeting our most basic needs for clean and safe water and healthy food to being able to enjoy our unique natural landscapes, including coastlines and beaches for tourism and recreation.

To recognise this, a percentage of levy money collected in the Green Adelaide region will be invested in landscape scale projects and works across the state through a new statewide landscape priorities fund. The bill establishes the new landscape priorities fund for investment on large-scale integrated landscape projects, such as Wild Eyre, taking into account high-level principles identified in the state landscape strategy.

Land, water and pest plants and animals: the boards' functions reflect a renewed focus on land and water management and pest plant and animal control. In relation to land, sustainable primary production and improvements to land management are important ways to achieve a productive, climate resilient and biodiverse landscape. To do this, landscape boards will work alongside landholders and provide support, advice and a helping hand where needed. This is embodied in the legislative functions of the landscape boards.

Measures will continue to be available under the act to ensure land is managed appropriately and to protect against degradation, but there is a new emphasis on taking into account local conditions and industry best practice to get the right outcome. This reflects a fairer approach for landholders, and reflects the variability of land across our state and within a region, by making sure contemporary and locally relevant best practice on the ground is taken into consideration.

The focus of the landscape reforms is resetting how boards operate to deliver a simpler, more transparent system overall. As a result, water management has not been a focus in the consultations that have shaped the landscape reforms. We were very clear about this from the outset of our extensive consultation process and publicly available discussion papers.

As such, most water-related provisions in the act have been carried over unchanged to the new bill, continuing the existing role of water allocation plans and providing for the sustainable management of water resources and existing licensing and permit arrangements to manage water resources. Water allocation plans will continue to be subject to a minimum two-month public consultation, as well as boards being required to follow contemporary and effective engagement and consultation practices in engaging with water users and other stakeholders.

Water-affecting activities, such as building a dam or drilling a bore, will continue to be regulated. To enable the simplification of regional landscape plans and give greater consistency and clarity for customers as to where policies on water-affecting activities are, these rules will be set out in a water-affecting activity control policy or a water allocation plan. Minor changes will reduce red tape for applicants for works approvals and clarify how works and site use approvals operate. Water allocation plans will be able to provide that a consumptive pool need not be limited to a specific purpose and for a watercourse to be managed together with surface water as a single resource. These small changes will enable water allocation plans to better reflect how water is managed.

During community engagement, strong interest was raised in seeking reforms across a range of areas, including for water, coasts and native vegetation. All these areas are substantial, involving complex legislative issues in their own right. Any water reform needs to be carefully considered and should be the subject of extensive consultation with all those potentially impacted in the community.

Pest animals and plants threaten agricultural, pastoral, industrial and public enterprises, as well as conservation and biodiversity. All livestock and plant production industries are at risk from pest animals and plants, with introduced pest species and plants costing South Australian agriculture millions of dollars each year in damage, lost production and control efforts. The current regulatory framework will continue to apply for pest plants and animals, where penalties apply for moving, possessing and releasing declared pests.

In response to feedback that people want healthier soils and timely processes for invasive pests, current requirements for landholders to prepare and implement action plans to control pest plants and animals will be replaced by a requirement for landholders to comply with action orders that require the owner of land to take action specified by the authority issuing the order. A principle to achieving ecologically sustainable development is that before taking remedial action, and where reasonably practicable and appropriate, to encourage persons responsible to take such action before resorting to more formal processes and procedures.

Accordingly, before requiring a landowner to undertake an action plan, boards will need to make reasonable attempts to resolve the matter by working with the landholder. Regional landscape boards will provide support, education and advice to work with landholders to develop sustainable-based solutions that meet local requirements. As a result, there will also be a more structured approach to the current practice of granting exemptions. Going forward, authorised officers will have a clear authority to issue a written exemption, subject to conditions, providing certainty as to what is required to remedy breaches.

A new expiation will apply for possession of a category 2 plant or animal—noting there are only a handful of animals in this category. Where a minor offence has occurred, such as the keeping of one animal, currently the only option is a warning or a prosecution. Other enforcement arrangements are largely replicated in the new legislation, with existing powers and civil remedies being replicated in the bill.

The current distinction between state and regional authorised officers, whereby regional authorised officers can only exercise certain powers within their region, can cause practical issues on the ground, particularly in managing cross-regional issues. The bill removes this distinction by the minister being responsible for appointing all authorised officers. The powers of individual authorised officers will be limited through their instrument of appointment as required. This will increase compliance capacity and enhance responsiveness to issues on the ground, particularly in remote areas.

Penalties for a number of offences that have not been increased since the introduction of the natural resources management legislation in 2004 have been increased by up to 40 per cent, which equates to CPI over the same period. Penalties have not been increased if they have been set relatively recently—for example, in relation to forestry—or where they are similar to those for similar state offences under other legislation.

The bill also provides transitional arrangements for the winding up of existing natural resources management boards and the transfer of any assets and liabilities, with options to ensure continued delivery of services on-ground. Critically, options to ensure a smooth transition from natural resources management boards to regional landscape boards have been provided for, including so that Green Adelaide may commence its vital preliminary work as a leading expert board in the interim phase.

Together, these reforms will deliver a fundamental change in how natural resources are managed in this state for the benefit of all South Australians and will move South Australia towards a productive and sustainable natural landscape, upholding the landscape for both our environment and the economic development of our state. I commend the bill to members and seek leave to have the explanation of clauses inserted into Hansard without my reading it.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary

Division 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines terms used in the Bill.

4—Interaction with other Acts

This clause provides that the Bill is in addition to, and does not limit or derogate from the provisions of any other Act. The clause also provides that the Bill is subject to certain other Acts and agreements described in the clause. Further, subclause (3) provides that clause 8 and Part 7 do not apply in relation to certain substances and activities associated with mining Acts.

5—Territorial and extra-territorial operation of Act

This clause provides that the Bill applies to the whole of the State, however the Governor may, by regulation, exclude parts of the State. The Bill also applies outside of the State if an activity or circumstance undertaken or existing outside the State may affect the natural resources of the State. The Bill may also operate extraterritorially to give effect to an intergovernmental agreement to which the State is a party.

6—Act binds Crown

This clause provides that the Bill binds the Crown in right of this State, and also, so far as the legislative power of the State extends, the Crown in all its other capacities, but not so as to impose any criminal liability on the Crown. Agencies and instrumentalities of the Crown must endeavour to act consistently with the State Landscape Strategy, along with all other relevant plans under the Bill.

Division 2—Objects, principles and general statutory duties

7—Objects and principles

This clause sets out the objects of the Bill and the principles that should be taken into account in connection with achieving ecologically sustainable development for the purposes of the measure.

8—General statutory duties

This clause requires a person to act reasonably in relation to natural resources management within the State, and to take into account the objects of the Bill. The clause also sets out factors to be taken into account in determining what is reasonable for the purposes of the section. The clause provides that a person acting in pursuance of a requirement under this or any other Act, in a manner consistent with a regional landscape plan, a water allocation plan, a landscapes affecting activities control policy, a water affecting activities control policy, or any other policy approved by the relevant regional landscape board for the purposes of this section, or in circumstances prescribed by the regulations, will be taken not to be in breach of the section. A person who breaches subclause (1) is not, on account of the breach alone, liable to civil or criminal action, but the person may be required to do certain things, or certain orders may be made, as set out in subclause (5). In addition, if a person can demonstrate that they acted in a manner consistent with any best practice methods or standards, or any guidelines, in the relevant industry or sphere of activity recognised by the regional landscape board as being acceptable for the purposes of subclause (1), after taking into account any local circumstances as described in subclause (8), then no action can be taken against the person in relation to the operation of this section. The clause also provides that a person is not to be held responsible for any condition or circumstance existing before the commencement of the Natural Resources Management Act 2004.

Part 2—Administration

Division 1—The Minister

9—Functions of Minister

This clause sets out the functions of the Minister.

10—Powers of delegation

This clause provides that the Minister may delegate a function or power of the Minister under the Bill, or any other Act, to a body or person, and sets out requirements for such delegations. However, the Minister may not delegate the function of making recommendations to the Governor. The clause also provides for an offence where a person to whom functions or powers have been delegated under this section, fails to disclose an interest in certain matters.

Division 2—Landscape regions and boards

Subdivision 1—Establishment of regions

11—Establishment of regions

This clause provides that the Governor may, by proclamation made on the recommendation of the Minister, divide the State into landscape management regions, and sets out the procedure and requirements for doing so. The Governor may, by subsequent proclamation on the recommendation of the Minister, vary the boundaries of a region or abolish a region on the basis that a new division is to occur. The operation of this clause is subject to clause 12 which establishes Green Adelaide.

12—Green Adelaide

This clause provides that there is to be a landscape management region known as Green Adelaide or the Green Adelaide Region, established as a region under clause 11 of the Bill. The area of Green Adelaide is to be based predominantly on the urban areas of metropolitan Adelaide. The boundaries of Green Adelaide may be varied from time to time by proclamation made by the Governor on the recommendation of the Minister.

Subdivision 2—Establishment of regional landscape boards

13—Establishment of boards

This clause requires the Minister, by notice in the Gazette, to establish a regional landscape board for each landscape management region (other than Green Adelaide), and sets out related procedures and requirements. In relation to Green Adelaide, the clause establishes the Green Adelaide Board and provides that the Minister may, by notice in the Gazette, set out any functions of the Board that are additional to those set out in the Act.

14—Corporate nature

This clause provides that a regional landscape board is a body corporate, sets out the corporate nature of the boards and provides that a board is subject to the direction and control of the Minister.

Subdivision 3—Membership of boards

15—Composition of boards

This clause sets out requirements relating to the composition of regional landscape boards. The Green Adelaide Board is to consist of between 6 and 10 members appointed by the Minister. A regional landscape board will be made up of 4 members appointed by the Minister and 3 members elected by eligible electors. However, a regional landscape board (other than Green Adelaide) may be constituted of between 5 and 9 members all appointed by the Minister if the Minister considers that it is preferable, due to special circumstances that apply in the relevant region.

16—Qualifications for membership

This clause provides that the Minister will determine the collective skills, qualifications, knowledge and experience required in order for a regional landscape board to carry out its functions effectively. These may vary in relation to different boards, and must be published in a manner determined by the Minister. In order for a person to be eligible for appointment or election as a member of a regional landscape board, the person must demonstrate that they have any skills, qualifications, knowledge or experience, and satisfy any other requirements, determined by the Minister. The Minister may put in place processes to ensure this occurs and publish information about any such determinations or processes under this clause.

17—Board elections

This clause provides that the regulations may make provision for various matters relating to the nomination and election of members of regional landscape boards, including who is eligible to be nominated, who is an eligible elector and the various procedures and processes for the conducting of elections. The clause also provides that the Minister may, if the Minister considers that a candidate nominated for election does not have the necessary skills, qualifications, knowledge and experience, determine that the person is not eligible to stand for election. If the region of a regional landscape board is within the area of a council, then a person who is enrolled on the voters roll for the area of the council under the Local Government (Elections) Act 1999 at the relevant time, will be an eligible elector. To the extent to which the region of a regional landscape board is outside the area of a council, then recognition of persons as eligible electors will be determined under a scheme based on qualification for enrolment under section 14 of the Local Government (Elections) Act 1999 as if the relevant area were within the area of a council (subject to any modifications prescribed by the regulations). The eligibility of a person nominated as a candidate for election will be based on eligibility to be a candidate for election as a member of a local council under section 17 of the Local Government (Elections) Act 1999, and to the extent that an area of a board is outside a council area, the scheme for eligibility will be based on those provisions as if the relevant area were within the area of a council, subject to any modifications prescribed by the regulations. The Minister will appoint a person to conduct an election or elections for the purposes of this Part.

18—Conditions of membership

This clause sets out the conditions relating to membership of a regional landscape board, including the terms of office, procedures for removal of members, and casual vacancies.

19—Allowances and expenses

This clause provides that a member of a regional landscape board is entitled to fees, allowances and expenses determined or approved by the Minister.

20—Validity of acts

Under this clause an act or proceeding of a regional landscape board is not invalid simply because there is a vacancy in its membership or a defect in the appointment of a member.

21—Conflict of interest under Public Sector (Honesty and Accountability) Act

This clause provides that a member of a regional landscape board will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason of the fact that the member has an interest in a matter that is shared in common with persons in the region of the board generally, or in common with a substantial group of persons who have an interest in the administration of various aspects of this measure.

Subdivision 4—Procedures at meetings

22—Procedures at meetings

This clause sets out the procedures in relation to meetings of regional landscape boards.

Subdivision 5—Functions of boards (general)

23—Functions of boards (general)

This clause sets out the general functions of a regional landscape board and the factors a board should take account of in performing its functions. A regional landscape board will, with respect to the performance of its functions, report to the Minister.

Subdivision 6—Functions of Green Adelaide Board (additional provisions)

24—Green Adelaide Board (priority areas)

This clause sets out the additional provisions that relate to the functions of the Green Adelaide Board. The clause also sets out the 7 key priorities to be adopted by the Board.

Subdivision 7—Funding and grants

25—Funding support

Under this clause, a regional landscape board should work to provide or to facilitate or support the provision of funding and grants to councils and other bodies, organisations and groups to achieve outcomes that promote the objects of this Bill and to assist the board to deliver its priorities, and to improve the state of natural resources, after taking into account the board's regional landscape plan and its annual business plan. The provision of financial assistance by a regional landscape board under this clause does not extend to the provision of a loan.

26—Grassroots Grants Programs

This clause provides that a regional landscape board must establish and maintain a Grassroots Grants Program for its region. The clause sets out the general purposes of such programs and provides that the Minister will, from time to time, determine the amount to be made available on an annual basis by a regional landscape board (which may be a percentage of contributions received by the board from levies under Part 5). For the purposes of this clause, the Minister may establish requirements, including in relation to applications for grants and criteria for assessing and awarding of grants, under this clause. A report on grants provided under this clause must be included in the annual report of a regional landscape board.

Subdivision 8—Powers of boards

27—General powers

This clause sets out the general powers of a regional landscape board in relation to the Bill.

28—Special powers to carry out works

This clause sets out special powers that a regional landscape board has to carry out the works specified in the clause.

29—Entry and occupation of land

This clause provides that a regional landscape board, or person authorised by them, may enter and occupy land for the purpose of carrying out an investigation or survey, or carrying out any work in an emergency. The clause also sets out the procedures required in the exercise of the powers conferred by this clause. A person may use force to enter land (other than residential premises) under this section, but only with the authority of a warrant issued by a magistrate, or in circumstances requiring immediate entry upon the land.

30—Special vesting of infrastructure

This clause enables the Governor by proclamation, on the recommendation of the Minister, to vest certain things in regional landscape boards, and sets out procedures for such vesting.

31—Landscapes affecting activities control policies

This clause provides that a regional landscape board may prepare a landscapes affecting activities control policy, being a policy with respect to the conservation, management or protection of any landscapes through the implementation of policies and controls relating to animals or plants. The clause sets out what a landscapes affecting activities control policy may contain. Further provisions in relation to the review, preparation and amendment of a landscapes affecting activities control policy are set out in Schedule 2 of the Bill.

Subdivision 9—Staff

32—General manager

This clause provides that each regional landscape board (other than Green Adelaide) must have a general manager, to be appointed by the Chief Executive of the Department on the recommendation of the relevant board. The clause sets out the responsibilities of the general manager and makes provision in relation to the role including designation as an employing authority for the purposes of the Public Sector Act 2009, performance agreements and appointment of acting general managers.

33—Staff

This clause sets out the staffing arrangements for regional landscape boards, to be approved by the Minister after consultation with the relevant board.

Subdivision 10—Committees and other bodies

34—Committees and other bodies

This clause provides for the setting up of committees or other bodies by regional landscape boards to advise and assist the board.

Subdivision 11—Power of delegation

35—Power of delegation

This clause provides that a regional landscape board may delegate its functions or powers.

Subdivision 12—Accounts, audit and reports

36—Accounts and audit

A regional landscape board must cause proper accounts to be kept and prepare financial statements for each financial year. The Auditor-General is to audit those accounts and statements.

37—Annual reports

This clause requires that a regional landscape board must provide an annual report to the Minister on its activities for the preceding financial year. The clause sets out the requirements of the report and provides that a copy of the report is to be laid before both Houses of Parliament and is to be made reasonably available to the public by the relevant regional landscape board.

38—Specific reports

The Minister may require a regional landscape board to provide the Minister with a report relating to any matter relevant to the operation of the Bill.

Subdivision 13—Related matters

39—Use of facilities

This clause allows a regional landscape board to make use of the services of the staff, equipment or facilities of an administrative unit of the Public Service, or a public authority, by arrangement with the relevant body.

40—Assignment of responsibility for infrastructure to another person or body

This clause allows a regional landscape board to assign responsibility for the care, control or management of infrastructure to an owner or occupier of land on which the infrastructure is situated (by agreement) or to a third party (with the approval of the Minister). An assignment to an owner or occupier, or to a third party, is effected by agreement. The clause also provides for the assignment to be noted (and a note of rescission or amendment entered if requested) against the instrument of title by the Registrar-General.

41—Appointment of administrator

This clause enables the Minister, in specified circumstances, to appoint an administrator of a regional landscape board.

Part 3—State Landscape Strategy

42—State Landscape Strategy

The Minister will prepare and maintain a plan to be called the State Landscape Strategy. The Strategy will set out principles, policies and high level strategic directions for achieving the objects of the measure throughout the State. The clause sets out what is to be included in the Strategy and provides that it will be reviewed at least once in every 10 years.

43—Related provisions

This clause provides for the requirements in relation to establishing or reviewing the State Landscape Strategy, including those relating to consultation, reporting and amendment, and making the Strategy available to the public.

Part 4—Regional and water allocation plans

Division 1—Regional landscape plans and business plans

44—Preparation of regional landscape plans

Each regional landscape board will prepare and maintain a regional landscape plan.

45—Key features of plan

The regional landscape plan will include, in relation to Green Adelaide, a 5 year strategic plan that is focussed on its 7 key priorities, and in the case of any other regional landscape board, a 5 year strategic plan that is focussed on its 5 strategic priorities, and will need to address a number of other specified matters. A regional landscape plan is to be consistent with the State Landscape Strategy and a variety of other plans, policies, strategies or guidelines as prescribed. A regional landscape board must, in preparing or reviewing its regional landscape plan, give due consideration to the plans of other boards insofar as this may be relevant to issues or activities under its plans. A council must, when performing functions or exercising powers under the Local Government Act 1999 or any other Act, have regard to any regional landscape plan that applies within the relevant area. A regional landscape board may amend its plan at any time, in accordance with the provisions of this measure.

46—Review of plan

This clause provides for the periodic review and amendment of regional landscape plans. The board may review any aspect of its plan at any time, but must undertake a comprehensive review of the plan at least once every 5 years. In reviewing its plan, the board may undertake such consultation as it thinks reasonable, after taking account of any guidelines specified by the Minister, and must also comply with any requirements as to consultation prescribed by the regulations.

47—Consultation associated with preparation of a plan or amendment

A regional landscape board proposing to create or amend a regional landscape plan must undertake such consultation as it determines to be reasonable, after taking account of any guidelines specified by the Minister and must also comply with any requirements as to consultation prescribed by the regulations. This consultation may occur as part of a review of the plan under clause 46. The board must, when furnishing a proposal to the Minister to approve a regional landscape plan, or an amendment to a plan, provide a report to the Minister on the consultation undertaken by the board.

48—Approval of Minister

This clause provides that a regional landscape plan, or an amendment of a regional landscape plan, does not have effect unless or until it has been approved by the Minister. This clause sets out the processes in relation to the approval by the Minister and provides that once approved, a copy of the plan, or the plan as amended, is to be laid before both houses of Parliament. A regional landscape board must ensure that up-to-date copies of its regional landscape plan are made reasonably available to the public.

49—Annual business plan

This clause provides that a regional landscape board must prepare a business plan for each financial year (an annual business plan) and sets out the requirements of the plan and the procedures required in relation to its preparation. In particular, special processes and consultation requirements are set out in relation to specified proposals in relation to levies collected under Part 5 (a prescribed levy proposal). If an annual business plan contains a prescribed levy proposal, or is inconsistent with the board's regional landscape plan, the business plan must be approved by the Minister in accordance with the provisions specified. In the case of an annual business plan approved by the Minister that contains a prescribed levy proposal, the Minister must prepare a report on the matter, and must cause a copy of the report to be laid before both Houses of Parliament. The clause sets out provisions in relation to resolutions that may be made by the House of Assembly regarding a prescribed levy proposal contained in a report. A regional landscape board must ensure that up-to-date copies of its annual business plan are made reasonably available to the public.

Division 2—Water allocation plans

50—Preparation of water allocation plans

Each regional landscape board must prepare a water allocation plan for each of the prescribed water resources in its region, and for any prescribed water resource situated in more than one region, which is located in its region. However, the Chief Executive may, if determined by the Minister, prepare a water allocation plan for any prescribed water resource if the whole or any part of the water resource is within the Green Adelaide Region, or the Minister considers that special circumstances apply (which may include where an administrator has been appointed, or a regional landscape board has failed to prepare a water allocation plan in a timely manner). A water allocation plan may relate to more than one prescribed water resource. In relation to the preparation, review or amendment of a water allocation plan, the clause also sets out the consultation required in specified circumstances.

51—Key features of plan

This clause sets out the requirements of a water allocation plan, which includes an assessment of the quantity and quality of water needed by the ecosystems that depend on the water resources and an assessment as to whether taking or use of water from the resource will have a detrimental effect on the quantity or quality of water that is available from any other water resource. The plan must also include an assessment of the capacity of the water resource to meet environmental water requirements, information about the water that is to be set aside for the environment and a statement of the environmental outcomes expected to be delivered on account of the provision of environmental water under the plan. The plan must also set out principles associated with the determination of water access entitlements, and in allocating water, must take into account the present and future needs of the occupiers of land. It must also include a statement of the environmental outcomes expected to be delivered on account of the provision of environmental water under the plan. A water allocation plan may provide for the constitution of one or more consumptive pools for the water resource and assign the same or different purposes to the pool or pools. A water allocation plan may also set out policies and principles in relation to assisting in the regulation of transfers or other dealings with water management authorisations or water access entitlements.

52—Review of plan

A water allocation may be reviewed by a designated entity at any time, but is to be reviewed on a comprehensive basis at least once in every 10 years in order to review the principles reflected in the plan, to assess whether the water allocation plan remains appropriate or requires amendment and to address any other prescribed matters. The designated entity will undertake such consultation as it thinks reasonable, taking into account any guidelines specified by the Minister or prescribed by the regulations for the purposes of this clause. Following a comprehensive review, the designated entity must report to the Minister on the outcome of the review and make a public statement about the outcome in such manner and to such extent as the entity thinks appropriate.

53—Consultation associated with preparation of a plan or amendment

This clause sets out the consultation requirements to be carried out by a designated entity proposing to create or amend a water allocation plan, including where a proposal would lead to a reduction of existing water access entitlements or water allocations in connection with water licences in respect of the water resource, or a change to a consumptive pool. When the designated entity gives a proposal to the Minister to approve a water allocation plan or amendment to a plan, the entity must provide a report on the consultation undertaken by the entity.

54—Approval of Minister

This clause provides that a water allocation plan, or an amendment to a plan does not have effect unless or until it has been approved by the Minister. The Minister may, on receiving a plan proposal, approve the proposal with or without amendment or refer the proposal back to the designated entity for further consideration. On referring the plan proposal back to the designated entity, the entity must take any further action specified by the Minister to reconsider the plan proposal, and the entity must then in turn, refer the proposal back to the Minister. The Minister may then approve the plan proposal, with or without amendment, refer the plan proposal back to the designated entity or lay the plan proposal aside together with any directions as to what steps should be taken in the circumstances.

55—Early adoption of plan

This clause provides that a regional landscape board may, with the consent of the Minister (and in certain circumstances, the consent of the Minister administering the Water Industry Act 2012) implement a draft water allocation plan or amendments to a water allocation plan that have not been approved by the Minister under clause 54. Any disagreement between the Ministers will be referred to the Governor in Executive Council.

Division 3—Related matters

56—Application of Division

This clause provides that this Division applies to a plan under Division 1 or Division 2 of Part 4.

57—Validity of plans

This clause provides that a plan, or a provision of a plan, is not invalid because it is inconsistent with the State Landscape Strategy, and a failure of a regional landscape board to comply with a requirement of this Part cannot be taken to affect the validity of a plan, or any other instrument under this measure.

58—Promotion of River Murray legislation and IGA

A plan that applies to the Murray-Darling Basin or in relation to the River Murray must seek to further the objects of the River Murray Act 2003 and the Objectives for a Healthy River Murray under that Act, and must be consistent with the terms or requirements of the Murray-Darling Basin Agreement, any relevant resolution of the Ministerial Council under that agreement, and any relevant provisions under the Water Act 2007 of the Commonwealth.

59—Associated Ministerial consents

The Minister will be required to seek the consent of other Ministers in certain circumstances. Any disagreement between the Ministers will be referred to the Governor in Executive Council.

60—Amendment of plans without formal procedures

This clause sets out the cases where a plan may be amended without following the formal procedures set out in Division 1 or Division 2 of Part 4. The Minister must certify that the amendment is not to be used to effect a reduction in existing water access entitlements or water allocations in connection with water licences, or a change to a consumptive pool, and that the Minister has consulted with the relevant regional landscape board before taking action under subclause (1). The Minister must also prepare a report in relating to the matter and cause a copy to be laid before both Houses of Parliament within 12 sitting days after completing the report.

61—Plans may confer discretionary powers

This clause makes it clear that a plan may confer discretionary powers.

62—Effect of declaration of invalidity

This clause provides that if a part of a plan is found to be invalid, the balance of the plan may continue to have full force and effect.

63—Time for preparation and review of plans

Under this provision, the initial regional landscape plan or water allocation plan prepared under this Bill need not satisfy all the requirements of the Bill but the Minister, a regional landscape board or a designated entity (as the case requires) must take reasonable steps to ensure that the plan is brought into a form that satisfies those requirements by an amendment, or series of amendments, or by the substitution of a comprehensive plan that satisfies those requirements within a period determined by the Minister. Furthermore, if the Minister thinks that the scope of an initial plan will be so limited that no useful purpose will be served by the public and other consultation required by this measure, the Minister may dispense with those requirements.

Part 5—Landscape and water levies Division 1—Levies in respect of land Subdivision 1—Council areas

64—Contributions by constituent councils

This clause establishes a scheme under which councils for the region of a regional landscape board may be required to contribute an amount towards the costs of the board performing its functions under this Bill for a financial year if the board's annual business plan specifies an amount to be contributed. Liability for the amount to be contributed by constituent councils will be shared between them according to a scheme set out in the relevant annual business plan. However, the total amount to be paid by the constituent councils for the region for a particular financial year should not exceed the total amount of the councils' contribution imposed under this Subdivision for the immediately preceding financial year, adjusted by the CPI percentage applying under subclause (4). However, the Minister may allow a higher amount due to the existence of exceptional circumstances as specified in the clause. The clause also provides for the Minister to approve another amount in the case where a regional landscape board did not require a contribution from the constituent councils for the region in relation to the immediately preceding financial year.

65—Payment of contributions by councils

This clause sets out the time for payment by a council of its share.

66—Funds may be expended in subsequent years

This clause makes it clear that money paid by a council under this Subdivision in one financial year may be spent by a regional landscape board in a subsequent financial year.

67—Imposition of levy by councils

This clause enables a council to impose a levy (a regional landscape levy) on rateable land in the region of the board to recover the amount of the share paid by the council. The levy will be recoverable as if it were a separate rate under Chapter 10 of the Local Government Act 1999. The basis for the levy is to be either the value of rateable land (being capital value, site value or annual value), a fixed charge or the area of rateable land, depending on the scheme set out in the relevant annual business plan.

68—Costs of councils

This clause provides that a regional landscape board must pay an amount on account of the costs of councils in complying with the requirements under this Subdivision, determined in accordance with the regulations. The Minister must give consideration to any submissions made by the LGA in relation to a proposal to make regulations under this provision.

Subdivision 2—Outside council areas

69—Board may declare a levy

This clause provides that a regional landscape board may, by notice in the Gazette, declare a levy under this clause if the annual business plan for the board specifies an amount to be contributed by persons who occupy land outside council areas towards the costs of the board performing its functions under this measure in a financial year. A levy may be declared with respect to land within the relevant area (to be called rateable land). The basis for the levy, as specified in the annual business plan, may be the value of rateable land, a fixed charge or the area of rateable land, or some other prescribed factor. However, the total amount specified by a regional landscape board in an annual business plan for a particular financial year should not exceed the amount imposed by the board under this clause for the immediately preceding financial year, adjusted by the CPI percentage applying under subclause (9). However, the Minister may allow a higher amount due to the existence of exceptional circumstances as specified in the clause. The clause also provides for the Minister to approve another amount in the case where a regional landscape board did not require a contribution under this clause in relation to the immediately preceding financial year. The clause also provides that money paid to a regional landscape board in a financial year may be spent by the board in a subsequent financial year.

70—Liability and payment of levy

This clause provides that the owner of any rateable land will be taken to be the occupier of the land and therefore liable to pay a levy declared under this Subdivision (unless a person other than the owner has assumed liability to pay the levy by notice to the relevant regional landscape board). The relevant regional landscape board must, as soon as is reasonably practicable after the declaration of a levy, serve a notice that includes the factors specified in the clause on the person liable to pay the levy.

Subdivision 3—Related provisions

71—Land across boundaries

Under this clause, in relation to the imposition of a levy under Division 1, the regulations may provide for a scheme assigning land to a particular region or council area where land is located across the boundaries of 2 or more regional landscape management regions or the boundaries of 2 or more councils.

72—Application of levy

This clause makes it clear that nothing in Division 1 prevents any levy raised in one part of the State being applied by a regional landscape board in another part of the State, in accordance with the provisions of an annual business plan. Furthermore, the Minister cannot, by direction or by the exercise of any other power under this Act, require a regional landscape board to apply any levy raised in its region in another part of the State. Nothing in Division 1 limits the requirement to pay amounts into the Landscape Priorities Fund under Part 6 of this measure.

Division 2—Levies in respect of water

73—Interpretation

This clause sets out defined terms for the purposes of Division 2.

74—Declaration of levies

This clause will allow the Minister to declare a levy or levies (a water levy or levies) by notice in the Gazette, to be paid by persons who are the holders of any water management authorisations or imported water permits, or are authorised to take water under clause 103, or are the holders of forest water licences granted in relation to commercial forests. A levy declared by the Minister under this clause must be set at a level that will return an amount that is as near as reasonably practicable to the amount stated in the annual business plan (or plans) of the relevant regional landscape board (or boards). Subclause (7) sets out the various factors in relation to which a levy may be declared under this clause, and the factors on which components comprising the levy, as determined under a scheme set out in the relevant business plan, may be based (such as a fixed charge, or the quantity of water allocated, received, taken or used, etc). The clause also sets out the factors on which different levies may be declared in respect of the same water resource. If a levy that relates to the River Murray has a component based on the effect that the use of water may have on salinity levels associated with the River Murray, money raised from the levy that is attributable to that component must be applied towards reducing salinity levels associated with the River Murray. The clause also provides that a levy cannot be imposed with respect to the taking of water for domestic purposes or for watering stock that are not subject to intensive farming. Furthermore, the amount of a levy imposed in relation to a particular component under subclause (7) in respect of a particular financial year should not exceed the amount imposed for the immediately preceding financial year adjusted by the CPI percentage applying under subsection (16) (unless no levy was imposed in relation to a particular component in the previous financial year, or the Minister determines this is not appropriate in the circumstances).

75—Liability for levy

This clause sets out provisions relating to liability for levies.

76—Notice of liability for levy

The Minister will serve a notice of the amount payable by way of a levy under

Division 2 on the person who is liable to pay the levy.

77—Determination of quantity of water taken

This clause sets out provisions as to the determination of the quantity of water taken for the purposes of determining the amount payable by way of a levy.

78—Cancellation etc of entitlement for non-payment of levy

The Minister will be able to cancel, suspend or vary a water management authorisation or an imported water permit if a levy is not paid, following notice requiring payment is served on the person.

79—Costs associated with collection

A regional landscape board may be required to pay to the Minister an amount determined in accordance with guidelines approved by the Treasurer on account of the costs incurred by the Minister in collecting any levy under Division 2. However, an amount payable by a board cannot exceed an amount to be determined in accordance with the regulations.

Division 3—Special provisions

80—Application of Division

This Division is to apply to an out-of-council levy (an OC levy) and a water levy.

81—Interest

Interest will accrue on an unpaid levy, unpaid instalments of a levy and on unpaid interest, in accordance with the regulations. The Minister may release a person suffering financial hardship from liability to pay the whole or part of interest that has accrued under this clause.

82—Discounting levies

The Minister will be able to discount a levy to encourage early payment of a levy, in accordance with a scheme to be prescribed by the regulations.

83—Recovery rights with respect to unpaid levy

This clause provides that, in the case of an OC levy, the levy will be a first charge on rateable land in accordance with a scheme established by the regulations. In the case of a water levy imposed in relation to a site use approval or delivery capacity entitlement, the levy will be a first charge on any land where any water that relates to the relevant water management authorisation is used, in accordance with a scheme established by the regulations. In the case of a water resource works approval, the levy will be a first charge on the land where the relevant works are located, or to which they are connected (taking into account any principles prescribed by the regulations), in accordance with a scheme established by the regulations.

84—Sale of land for non-payment of a levy

This clause sets out a scheme for the sale of land if a levy, or interest in relation to a levy is a first charge on land and has been unpaid for at least 3 years. The Minister will be able to assume title to the land by notice in the Gazette, if it cannot be sold.

Division 4—Related matters

85—Refund of levies

A regional landscape plan, an annual business plan or the regulations may set out natural resources management practices designed to conserve, protect, maintain or improve the quality or state of natural resources of a specified kind that will form the basis of an application for a refund of the levy imposed under Part 6.

86—Declaration of penalty in relation to unauthorised or unlawful taking of water

This clause sets out a scheme that provides for the Minister to make a declaration, by notice in the Gazette, of a penalty in relation to the unauthorised taking of water. The regulations may prescribe sections of Part 6 that apply to a penalty under this provision as though it were a levy.

87—Appropriation of levies, penalties and interest

This clause provides for the application of levies and other amounts declared under this Part.

Part 6—Statutory funds

Division 1—The Landscape Administration Fund

88—The Landscape Administration Fund

There is to be a Landscape Administration Fund in connection with the operation of this measure that is to consist of payments or moneys specified in the clause. The clause also sets out the matters for which the Fund may be applied including making payments to regional landscape boards, making grants or other payments to other persons or bodies for the purposes of this measure, in satisfying any requirements to use levies for a particular purpose, or in paying any amount into the Landscape Priorities Fund that the Minister determines should be held and applied for the purposes of that fund rather than under this clause.

89—Accounts

The Minister must cause proper accounts to be kept of money paid into and out of the Landscape Administration Fund.

90—Audit

The Landscape Administration Fund may be audited by the Auditor-General at any time, and must be so audited at least once in each year.

Division 2—The Landscape Priorities Fund

91—The Landscape Priorities Fund

There is to be a Landscape Priorities Fund in connection with the operation of this measure that is to consist of payments or moneys as set out in the clause. The clause provides that the Landscape Priorities Fund may be applied in addressing any priority for managing, improving or enhancing the State's landscape or natural resources, whether the priority is of sub-regional, regional, cross-regional or State wide significance, in addition to making any other payment required or authorised under this Act or any other law.

92—Accounts

The Minister must cause proper accounts to be kept of money paid into and out of the Landscape Priorities Fund.

93—Audit

The Landscape Priorities Fund may be audited by the Auditor-General at any time, and must be so audited at least once in each year.

Division 3—Regional landscape board funds

94—Regional landscape board funds

Each regional landscape board will be required to establish and maintain and administer a fund for the purposes of this measure. The fund will include money received by the board from the Minister, any money received by the board under this measure or other money received by the board in the performance of its functions or the exercise of its powers. It may also include any other moneys required or authorised by or under this Act or any other law to be paid into the fund. A regional landscape board may apply its fund in implementing its regional landscape plan or annual business plan, any water allocation plan or in initiating or supporting other programs and projects under this measure. The board's fund may also be applied in performing its other functions, defraying any expenses incurred by the board, providing financial assistance to other bodies or persons in accordance with this measure, acting under clause 25 or 26, or making any other payment required or authorised by or under this measure or any other law.

Part 7—Management and protection of land

95—Interpretation

This clause defines terms used in Part 7 of the measure.

96—Special provisions relating to land

This clause will enable a relevant authority to require the owner of land to prepare an action plan if the relevant authority considers that the owner has been (or is likely to be) in breach of the general statutory duty on account of land management practices or activities undertaken in relation to land for which the owner is responsible and those practices or activities have resulted in, or could reasonably be expected to result in, unreasonable degradation of land or an unreasonable risk of degradation of land. The clause sets out factors that are relevant to determining whether a practice or activity involves (or may involve) unreasonable degradation, or an unreasonable risk of degradation, of land. The provision also sets out circumstances where an action plan should not be used.

97—Requirement to implement action plan

An action plan will be imposed by notice in a form approved by the Minister. An owner of land must be given a reasonable period (of at least 21 days) to prepare the action plan. A requirement to prepare an action plan will be subject to review by the Chief Executive. An action plan must set out the measures that the owner proposes to take to address any breach of the general statutory duty, and to comply with the general statutory duty in the future as well as the time frames within which those measures are proposed to be taken. The relevant authority is to either approve the action plan, or after consulting the owner, amend the plan (which may be subject to review by the Chief Executive on application by the owner). It is an offence for the land owner to fail to comply with a notice or fail to implement an action plan. Failing to implement a plan may result in the Chief Executive or a regional landscape board carrying out or causing to be carried out such measures as may be appropriate, or engaging a suitably qualified person to devise and implement measures to address the problems. The costs and expenses of doing so may be recovered as a debt from the relevant owner.

Part 8—Management and protection of water resources

Division 1—General rights in relation to water

98—Right to take water subject to certain requirements

This clause sets out rights in relation to the taking of water. Subject to the provisions of this Bill, or any other Act or law to the contrary, a person who has lawful access to a watercourse, lake or well may take water from the watercourse, lake or well and the occupier of land is entitled to take surface water from the land for any purpose. Furthermore, subject to this Bill or any other Act or law to the contrary, or the provisions of a stormwater management plan incorporated into a regional landscape plan or a water allocation plan under clause 60, a person who has lawful access to any stormwater infrastructure may take water from the infrastructure for any purpose. However, if the water is in a prescribed watercourse, lake or well, or is from a surface water prescribed area, an authorisation under clause 103 or a water allocation that relates to the relevant water resource is required. Also a person must not take water from a watercourse, lake or well that is not prescribed if it would detrimentally affect the ability of another person to exercise a right to take water from the watercourse or lake or from the same underground aquifer, or it would detrimentally affect the enjoyment of the amenity of water in the watercourse or lake by an occupier of land that adjoins the watercourse. However, this does not limit the occupier of land from taking water for domestic purposes or for watering stock (that is not subject to intensive farming) unless, in relation to a prescribed watercourse, lake or well or a surface water prescribed area, that is excluded by the regulation declaring it. Despite the other provisions of this clause, water must not be taken contrary to the provisions of a regional landscape plan, a water allocation plan or a water affecting activities control policy that applies in relation to that water unless the water is taken pursuant to an authorisation under clause 103 or a water allocation that relates to the relevant water resource. This section operates subject to any requirement to have a licence with respect to a commercial forest under Division 6.

99—Declaration of prescribed water resources

This clause provides for the declaration of a prescribed watercourse, lake or well, or a part of the State as a surface water prescribed area, by the Governor by regulation on the recommendation of the Minister. The Minister must undertake a process of public consultation before making a recommendation as set out in the clause. The Minister must not make a recommendation for a regulation declaring a water resource to be a prescribed water resource unless satisfied that the proposed regulation is necessary or desirable for the proper management of the water resource to which it will apply.

Division 2—Control of activities affecting water

Subdivision 1—Water affecting activities control policies

100—Water affecting activities control policies

This clause provides that a prescribed authority may prepare a policy under this clause (a water affecting activities control policy) with respect to the conservation, management or protection of a watercourse, lake or well or an area or place containing (or from time to time containing) surface water, within the relevant regional landscape board's region. However, in the case of a prescribed watercourse, lake or well, or a surface water prescribed area, a water affecting activities control policy should not overlap with the provisions of a water allocation plan that is in operation under this measure in relation to that prescribed water resource. The clause sets out the matters that a water affecting activities control policy may contain or address. Provisions for the review, preparation and amendment of a water affecting activities control policy are set out in Schedule 2 of this measure.

Subdivision 2—Determination of relevant authority

101—Determination of relevant authority

This clause sets out who is the relevant authority for the purposes of granting a water management authorisation or a permit required under Division 2.

Subdivision 3—Control of activities

102—Water affecting activities

This clause controls activities that affect water by requiring, in relation to the taking of water or the undertaking of activities referred to in the clause, a water management authorisation or permit, water allocation, an authorisation under clause 103, compliance with a water allocation plan or water affecting activities control policy, or where the taking or activity is otherwise authorised under the measure (depending on whether or not the water is to be taken from a prescribed watercourse, lake or well or from a surface water prescribed area).

103—Certain uses of water authorised

This clause enables the Minister, by notice in the Gazette, to authorise the taking of water from a prescribed watercourse, lake or well, or the taking of surface water from a surface water prescribed area, for a particular purpose specified in the notice. A notice cannot authorise the taking of water by stopping, impeding or diverting the flow of water for the purpose of collecting the water or diverting the flow of water from a watercourse unless the Minister is satisfied that it is reasonable to allow the water to be taken in this way, after taking into account any criteria prescribed by the regulations for the purposes of this subclause. A notice under this clause may apply generally throughout the State or in relation to a particular watercourse or lake or to wells, or a class of wells, in a particular part of the State, or to a particular surface water prescribed area (including as to particular stormwater infrastructure or class of stormwater infrastructure). An authorisation under this clause may be subject to conditions, as specified in the notice.

104—Activities not requiring a permit

This clause sets out activities for which a permit is not required. For example, a permit is not required for an activity that a person is authorised to undertake by a water management authorisation, or to authorise a person to erect, construct or enlarge contour banks to divert surface water solely for the purpose of preventing or reducing soil erosion (provided that a regional landscape plan, water allocation plan, water affecting activities control policy or an approved action plan under Part 7 allows or provides for this), or to authorise an activity that is otherwise required or authorised under a number of other Acts specified in the clause.

105—Notice to rectify unauthorised activity

This clause enables a relevant authority to direct a person who has undertaken an activity without authority (including by contravening or failing to comply with specified corresponding previous enactments such as the Natural Resources Management Act 2004) to rectify the effects of that activity.

106—Notice to maintain watercourse or lake

This clause enables a relevant authority to direct the owner of land to maintain a watercourse or lake that is on or adjoins a watercourse or lake in good condition. If the owner fails to comply with the notice, the relevant authority may enter the land and take the action specified in the notice and such other action as the authority considers appropriate in the circumstances and the authority's costs will be a debt due by the owner to the authority or, if appropriate, the Crown.

107—Restrictions in case of inadequate supply or overuse of water

This clause enables the Minister by notice in the Gazette, to prohibit or restrict the taking of water from a watercourse, lake or well or the taking of surface water, or to limit the quantity of water that may be taken, or to direct that dams, reservoirs, embankments, walls or other structures be modified to allow water to pass over, under or through them in certain cases. These include where the Minister is of the opinion that the quantity of water available can no longer meet the demand or there is a risk that future demand may not be able to be met, or the quality of the water in the watercourse, lake or underground aquifer is affected or likely to be affected. In addition, prohibitions or restrictions may apply under this clause if the Minister is of the opinion that the taking of the water is having a serious effect on another watercourse or lake, or that an underground aquifer is likely to collapse or suffer any other damage due to water being taken from a well. In determining the demands on available water under subclause (1), the need for water of the ecosystems that depend on water from the water resource concerned must be taken into account. Furthermore, the clause provides that the Minister may, if of the opinion that the rate or the manner in which water is taken from a water resource that has not been prescribed is causing, or is likely to cause, damage to ecosystems that depend on the water, by notice served on a person taking water, restrict the rate and times at which the person may take water, or take such action as is specified in the notice to rectify any problems.

108—Specific duty with respect to damage to a watercourse or lake

This clause places a specific duty on the owner of land on which a watercourse or lake is situated, or adjoins a watercourse or lake to take reasonable measures to prevent damage to the bed and banks of the watercourse or the bed, banks or shores of the lake and to the ecosystems that depend on the watercourse or lake. A person who breaches such a duty is not, on account of the breach alone, liable to any civil or criminal action but compliance may be enforced by the issuing of a protection order, a reparation order or authorisation under this measure or by order of the ERD Court under Part 10.

109—Minister may direct removal of dam etc

This clause will enable the Minister, on the recommendation of a regional landscape board, or on the Minister's own initiative after consultation with the relevant board, by notice, to direct the owner of land to remove or modify a dam, embankment, wall or other obstruction or object that collects water, or diverts or impedes the flow of water in a watercourse or flowing over any other land, and that was lawfully placed in or near the watercourse or on the land before the prescribed date. Compensation is payable under clause 224 if a dam, embankment, wall or other obstruction or object must be removed.

Subdivision 4—Permits

110—Permits

This clause provides for the granting of permits by the relevant authority. A relevant authority must take into account the provisions of any relevant water allocation plan or water affecting activities control policy when considering an application for a permit, and must ensure that the permit, if granted, and any conditions of the permit, are not inconsistent with the provisions of such a plan or policy. The granting of a permit must not be contrary to a notice in force under clause 107. Subject to its terms, a permit is binding on and operates for the benefit of the applicant and the owner and occupier of the land to which it relates when it is granted and all subsequent owners and occupiers of the land. A permit is subject to such conditions as are prescribed by this measure or by the regulations, or are specified in the permit by the relevant authority.

111—Requirement for notice of certain applications

This clause requires notice of applications for a permit to be given to the public, prescribed persons and other specified persons, if a water allocation plan or water affecting activities control policy provides for such notice. The clause then allows interested persons to make representations to the relevant authority before a decision is made on the application.

112—Refusal of permit to drill well

This clause allows an authority to refuse a permit to drill a well if the water is so contaminated as to create a risk to the health of people or animals.

Subdivision 5—Provisions relating to wells

113—Well drillers' licences

This clause provides for the granting of well driller's licences by the Chief Executive, subject to such conditions prescribed from time to time by the regulations and to any conditions specified in the licence by the Chief Executive.

114—Renewal of licence

This clause provides for the renewal of well driller's licences.

115—Non-application of certain provisions

This clause enables wells of a class declared by proclamation to be excluded from specified provisions of this Subdivision.

116—Defences

This clause provides a series of defences relating to offences relating to drilling, plugging, backfilling, sealing a well or in relation to other activities with respect to wells without being authorised by a permit or without using the services of a licensed well driller or a person supervised by a licensed well driller.

117—Obligation to maintain well

This clause imposes an obligation on the occupier of land on which a well is maintained to ensure that the well (including the casing, lining, and screen of the well and the mechanism (if any) used to cap the well) is properly maintained.

118—Requirement for remedial or other work

This clause enables the Chief Executive, if satisfied that there is a defect, or other specified problem with a well, to direct the owner or occupier of land on which the well is situated (or in some cases the well driller) that certain work or action be taken with respect to the well.

Division 3—Licensing and associated rights and entitlements

Subdivision 1—Water licences

119—Nature of water licences

This clause provides for the granting of a water licence by the Minister in respect of a prescribed watercourse, lake or well or in respect of the surface water in a surface water prescribed area or part of a surface water prescribed area. A licence may be granted subject to conditions. A water licence provides an entitlement to the licence holder to gain access to a share of water available in the consumptive pool or consumptive pools to which the licence relates, as specified by the licence and after taking into account any factors specified by the relevant water allocation plan or prescribed by the regulations. This entitlement is referred to as a water access entitlement. As well as being subject to conditions attached to a licence, a water access entitlement is subject to a determination of the Minister, by notice in the Gazette, as to the volume of water that is to be made available from a consumptive pool for allocation under this measure during a specified period. The consumptive pool or pools may be affected by water allocations attached to forest water licences (and these allocations must then be taken into account in connection with the operation of the scheme established by this clause). The clause further provides that a water licence is personal property and may pass to another in accordance with the provisions of this measure, or in accordance with any other law for the passing of property (subject to this measure).

120—Water licences—applications and matters to be considered

This clause makes provision for applications for water licences and sets out the matters to be considered by the Minister in granting a licence. Grounds on which the Minister may refuse to grant a licence include that it would be contrary to the provisions of the relevant water allocation plan to grant a water access entitlement under the terms of the licence being sought, or because a water access entitlement under the terms of the licence would relate to water that is so contaminated that its use would create a risk to the health of people or animals. In addition, the Minister's decision to grant a water licence must be made in the public interest and be consistent with any requirements prescribed by the regulations.

121—Issuing of water licences

This clause sets out requirements in relation to the issuing of a water licence including what it must specify and when it takes effect. A water licence remains in force until it is terminated by or under this measure or it expires under the terms of the licence.

122—Variation of water licences

This clause provides for the variation of water licences, either on application of the licensee, or by the Minister in specified circumstances.

123—Transfer of water licences

This clause provides for the transfer of a water licence, or a water access entitlement (or part of an entitlement) under a licence, to another person. A transfer is subject to this measure and the relevant water allocation plan. A transfer requires the approval of the Minister and may be absolute or for a limited period. The Minister may refuse to grant approval for a transfer on the same grounds as those on which the Minister may refuse to grant an application by that person for a licence. The clause sets out additional factors that the Minister must consider in granting or refusing to grant a transfer.

124—Surrender of water licences

This clause enables a licensee to surrender the licence, subject to obtaining the consent of any person with an interest in the licence noted on The Water Register.

Subdivision 2—Allocation of water

125—Allocation of water

This clause sets out the methods by which a water allocation may be obtained. An allocation may be obtained on account of a water access entitlement under a water licence, as a carryover under the provisions of this clause, under an Interstate Water Entitlements Transfer Scheme (IWETS), or from the holder of a forest water licence (subject to any conversion or adjustment under the provisions of any relevant water allocation plan). An allocation may be subject to conditions and is personal property and may pass to another in accordance with the provisions of this measure or, in accordance with any other law for the passing of property (subject to this Bill).

126—Issuing of water allocation

A water allocation granted or issued by the Minister must be consistent with the relevant water access entitlement or IWETS in relation to the volume of water granted, and must be consistent with the provisions of the relevant water allocation plan. A water allocation is subject to conditions prescribed by the regulations or endorsed on a relevant water licence or on the water entitlement itself. The clause further provides that a water allocation may comprise various components that expire on a future date or restrict the purpose for which any component or volume of water may be used.

127—Water allocations—matters to be considered

This clause sets out the grounds on which the Minister may determine not to grant or issue a water allocation.

128—Reduction of water allocation

This clause relates to the ability of the Minister to reduce water allocations in specified circumstances.

129—Variation of water allocations

This clause sets out the circumstances in which a water allocation may be varied by the Minister. The Minister's decision on the variation must be consistent with the relevant water allocation plan, and if the variation relates to conditions attached to the water allocation, it must not be seriously at variance with the relevant water allocation plan. It must also be in the public interest and must be consistent with requirements prescribed by the regulations.

130—Transfer of water allocations

The holder of a water allocation may, with the approval of the Minister, transfer the water allocation to another person, subject to this measure and the relevant water allocation plan. The Minister's decision on the transfer must be consistent with the relevant water allocation plan, must be in the public interest and must be consistent with requirements prescribed by the regulations.

131—Surrender of water allocations

This clause provides that the holder of a water allocation may surrender the water allocation at any time.

Subdivision 3—Water resource works approvals

132—Water resource works approvals—applications and matters to be considered

This clause set out the requirement for a water resource works approval if a person proposes to carry out works in relation to a water resource. The Minister's decision on the grant of an approval must take into account any relevant environmental, social or economic impacts associated with the construction or use of the relevant works, and be consistent with any requirements prescribed by the regulations.

133—Issuing of approvals

This clause sets out what must be specified in relation to a water resource works approval. An approval may be subject to conditions prescribed by the regulations, or specified by the relevant water allocation plan or endorsed on the approval by the Minister. A water resource works approval may be classified in connection with a management zone or zones specified in the relevant water allocation plan.

134—Variation of approvals

This clause provides for the variation of a water resource works approval.

135—Notice provisions

This clause sets out the notice requirements in relation to an application for a water resource works approval or the variation of an approval that falls within a class specified by the relevant water allocation plan for the purposes of this clause.

136—Cancellation if works not constructed or used

This clause provides that the Minister may, in accordance with a scheme prescribed by the regulations, cancel a water resource works approval if the works are not constructed, substantially completed or used, or used to any significant degree over a period prescribed by the regulations.

137—Nature of approval

This clause provides that a water resource works approval applies to the site to which the approval relates and is attached to the land constituting that site.

138—Expiry

This clause provides that a water resource works approval will expire according to its terms if the provisions of the approval so provide.

Subdivision 4—Site use approval

139—Site use approvals—applications and matters to be considered

This clause provides for applications to be made for a site use approval to the Minister. An application must specify the purpose or purposes for which the water is proposed to be used, where the water is proposed to be used, and the prescribed information about the proposed extent, manner and rate of use of the water. The clause sets out the grounds on which the Minister may refuse to grant a site use approval.

140—Issuing of approvals

An site use approval must specify the place where the use is allowed, and the manner and use of water authorised by the approval. An approval will be subject to any prescribed conditions or conditions specified by the relevant water allocation plan or endorsed on the approval by the Minister.

141—Variation of approvals

This clause provides for the variation of a site use approval by the Minister.

142—Notice provisions

This clause sets out the notice requirements in relation to an application for a site use approval or a variation of an approval that falls within a class specified by the relevant water allocation plan for the purposes of this clause. Notice is to be given to the general public, prescribed persons and other persons specified in the water allocation plan.

143—Cancellation

This clause provides that the Minister may, in accordance with a scheme prescribed by the regulations, cancel a site use approval in prescribed circumstances.

144—Nature of approval

This clause makes clear that a site use approval applies to the site to which the approval relates and is attached to the land constituting that site.

145—Expiry

A site use approval will expire according to its terms if the provisions of the approval so provide.

Subdivision 5—Delivery capacity entitlements

146—Delivery capacity entitlements—applications and matters to be considered

This clause sets out the requirements in relation to applications for a delivery capacity entitlement. Applications must be made to the Minister and must specify the water resource in relation to which the delivery capacity entitlement is being sought, the place or area where water is proposed to be taken, prescribed information about the times and rates at which it is proposed to take water, and prescribed information about the extent to which priority is being sought over other delivery capacity entitlements issued in relation to the same water resource (or a specified part of the water resource). The clause sets out the grounds on which the Minister may refuse to grant a delivery capacity entitlement. It also requires that the Minister's decision to grant an entitlement must be made in the public interest and be consistent with any requirements prescribed by the regulations.

147—Issuing of delivery capacity entitlements

A delivery capacity entitlement must specify the terms of the entitlement, and will be subject to any prescribed conditions or conditions specified by the relevant water allocation plan or endorsed on the approval by the Minister. A delivery capacity entitlement may be granted on the basis that it cannot be transferred except in conjunction with the transfer of a specified water licence, water access entitlement or water allocation. Subject to this however, a delivery capacity entitlement is personal property and may pass to another person in accordance with the provisions of this measure or, subject to this measure, in accordance with any other law for the passing of property.

148—Delivery capacity entitlements to relate to point of extraction

This clause provides that a delivery capacity entitlement may be applied to any aspect of the taking of water from the relevant water resource at a point of extraction, but cannot be directly applied to any part of an irrigation system that distributes water after extraction.

149—Variation of delivery capacity entitlements

This clause provides for the variation of a delivery capacity entitlement by the Minister.

150—Transfer of delivery capacity entitlements

This clause sets out a scheme for the transfer of a delivery capacity entitlement. The transfer of an entitlement is subject to the operation of this measure, the relevant water allocation plan and the terms of the delivery capacity entitlement. A transfer may be absolute or for a limited period, and is subject to the approval of the Minister. The Minister may refuse to grant approval for the transfer of a delivery capacity entitlement to a person on the same grounds as those on which the Minister would refuse to grant an application by that person for the entitlement. The clause further sets out matters on which the Minister's decision to grant or refuse the transfer is to be based.

151—Surrender of delivery capacity entitlements

This clause provides for the surrender of a delivery capacity entitlement by the holder at any time.

Subdivision 6—Interstate agreements

152—Interstate agreements

This clause facilitates the recognition of intergovernmental agreements associated with water entitlements under the measure.

Subdivision 7—Related matters

153—Allocation on declaration of prescribed water resource

This clause provides that on the declaration of a watercourse, lake or well as a prescribed watercourse, lake or well or declaration of a part of the State as a surface water prescribed area, an existing user of water from the water resource concerned may continue to use water without a water management authorisation for a certain period as set out in the clause. An existing user is also entitled (subject to various factors set out in the clause) to be granted, without the payment of any purchase price, the necessary water management authorisations, after consultation with the user.

154—Schemes to promote the transfer or surrender of certain entitlements

This clause preserves the ability of the Minister to establish certain schemes by notice in the Gazette to promote the transfer or surrender of water allocations, or class of water allocations, that relate to an area within the Murray Darling Basin, and to promote the surrender of water licences, or class of water licences, that relate to a specified area within the Murray Darling Basin.

155—Consequences of breach of water management authorisations

This clause sets out the consequences of a breach of a water management authorisation and certain other requirements under this Part. The Minister will be able to cancel, suspend or vary a water management authorisation in certain circumstances. A right of appeal will lie to the ERD Court on a decision of the Minister under this clause.

156—Effect of cancellation of water management authorisations

This clause provides that any entitlement under a water management authorisation that has been cancelled under this measure is forfeited to the Minister. On forfeiture of a water licence, water access entitlement, water allocation or delivery capacity entitlement (an entitlement), the Minister must endeavour to sell the entitlement. However, the entitlement must be of sufficient value to cover the cost of sale and any resulting transfer of the entitlement must be consistent with the relevant water allocation plan and the provisions of the entitlement. The proceeds of any such sale are to be applied in the manner specified by this clause.

Division 4—Reservation of excess water by Minister

157—Interpretation

For the purposes of Division 4, this clause defines reserved water as water reserved by notice published in the Gazette under clause 158.

158—Reservation of excess water in a water resource

This clause provides for the ability of the Minister to reserve excess water in a water resource that is available for allocation, if satisfied that it is necessary or desirable for the proper management of the water of the resource to reserve the whole or part of that excess water, either from allocation under any circumstances or for allocation subject to restrictions.

159—Allocation of reserved water

This clause sets out certain provisions that apply in relation to the allocation of reserved water (despite the other provisions of this measure).

160—Public notice of allocation of reserved water

If the Minister has reserved water under Division 4, the Minister is required to publish specified information in the Gazette on a quarterly basis.

Division 5—Water conservation measures

161—Water conservation measures

This clause continues the scheme under which the Governor can introduce specific water conservation measures by regulation under this measure. The regulations must be declared to be for the purposes of taking action to provide for the better conservation, use or management of water (longer-term measures), or for the purposes of taking action on account of a situation, or likely situation, that, in the opinion of the Governor, has resulted, or is likely to result, in a decrease of the amount of water available within a water resource (whether prescribed or not) (referred to as short-term measures).

Division 6—Commercial forestry

Subdivision 1—Preliminary

162—Interpretation

This clause defines relevant terms for the purposes of Division 6.

163—Declaration of forestry areas

This clause provides for an area of the State to be a declared forestry area for the purposes of this measure by the Minister by notice in the Gazette. The clause sets out specified requirements that must be satisfied before the Minister can make a declaration under this clause.

Subdivision 2—Licences

164—Forest water licences

This clause provides for the granting of forest water licences by the Minister and sets out the grounds on which the Minister may refuse to grant such a licence. Furthermore, the Minister's decision on the grant of a forest water licence must be consistent with any relevant provisions of the relevant water allocation plan and any requirements prescribed by the regulations. A forest water licence applies to the site of the commercial forest to which the licence relates and is attached to the land constituting the site, or if the forest is the subject of a forest property (vegetation) agreement—the forest vegetation.

165—Allocation of water

This clause provides that a forest water licence must have a water allocation attached to the licence. The water allocation must provide for a quantity of water that is at least equal to the water required to fully offset the impact of the forest on the relevant water resource. This is to be determined in accordance with the hydrological values that are relevant to the commercial forest under the relevant water allocation plan (as at the time of the issue of the licence and as relevant taking into account any expansion or reduction in the size of the forest) and subject to any allowance under a scheme (if any) relating to the management of the forest approved by the Minister for the purposes of this clause. This approval may be subject to such conditions as the Minister thinks fit. The clause also provides that a water allocation (as attached to a forest water licence) is personal property and may pass to another in accordance with the provisions of this measure or, subject to this measure, in accordance with any other law for the passing of property.

166—Variations—allocations

The Minister may vary a water allocation attached to a forest water licence and the decision of the Minister on the variation must be consistent with the relevant water allocation plan.

167—Transfer of allocations

Subject to this measure and the relevant water allocation plan, the holder of a forest water licence may transfer the whole or a part of the water allocation attached to the licence to specified persons. A transfer requires the approval of the Minister. The Minister may not grant approval for the transfer of a water allocation if the result would be that the water allocation attached to the licence would fall below the water required to offset the impact of the forest on the relevant water resource (as determined under the relevant water allocation plan). The clause sets out further matters that are relevant to the Minister's decision to grant or refuse the transfer of a water allocation under this clause.

168—Conditions

A forest water licence will be subject to such conditions prescribed from time to time by the regulations, or endorsed on the licence by the Minister.

169—Variations—conditions

This clause provides for the variation of conditions of a forest water licence by the Minister.

170—Establishment of licence on declaration of areas

This clause provides for a scheme for the issue of a forest water licence on declaration of the relevant declared forestry area.

171—Surrender of licences

A licensee may surrender the licensee's forest water licence in prescribed circumstances.

172—Cancellation of licences

The Minister may cancel a forest water licence in circumstances specified in the relevant water allocation plan or prescribed by the regulations.

Subdivision 3—Offences

173—Offences

It is an offence for a person to contravene clause 163(3) or to contravene or fail to comply with a condition to which a forest water licence under this Division is subject.

Division 7—Interaction with Irrigation Acts

174—Interaction with Irrigation Act 2009

This clause sets out provisions that relate to the interaction of this measure with the Irrigation Act 2009.

175—Interaction with Renmark Irrigation Trust Act 2009

This clause sets out provisions that relate to the interaction of this measure with the Renmark Irrigation Trust Act 2009.

Division 8—Related matters

176—Effect of water use on ecosystems

When making a decision under Part 8 of this measure based wholly or in part on an assessment of the quantity of water available during a particular period, the relevant decision maker must take into account the needs of ecosystems that depend on the relevant resource for water.

177—Activities relating to Murray-Darling Basin

When making a decision under Part 8 that relates to an activity within the Murray Darling Basin, or the management, taking, allocation or use of water from a water resource in an area within the Murray Darling Basin, the Minister or other person or body making that decision must take into account the terms or requirements of the Murray Darling Basin Agreement, and any resolution of the Ministerial Council under that agreement (insofar as they may be relevant).

178—Consultation with Minister responsible for River Murray Act 2003

This clause provides for consultation with the Minister responsible for the River Murray Act 2003 by the Minister under this measure acting under Part 8, or in any case or circumstances prescribed by the regulations.

179—Representations by SA Water

If water is discharged into a watercourse or lake in the region of a regional landscape board by SA Water, SA Water may make representations to the board in respect of the performance or exercise by the board of its functions or powers in relation to that water.

180—Water recovery and other rights subject to board's functions and powers

This clause specifies rights that are subject to the performance of functions and duties and the exercise of powers by a regional landscape board or a designated entity under this or any other Act.

181—Water management authorisation is not personal property for the purposes of Commonwealth Act

This clause makes it clear that a water management authorisation is not personal property for the purposes of the Personal Property Securities Act 2009 of the Commonwealth.

182—Law governing decisions under this Part

This clause makes specific provision with respect to the law to be applied in relation to specified decisions under Part 8, and the provisions of any relevant water allocation plan or water affecting activities control policy that are relevant to the consideration or determination of a matter under that Part.

Part 9—Control of animals and plants

Division 1—Preliminary

183—Preliminary

This clause will enable the Minister, by notice in the Gazette, to declare that specific provisions of the Part apply to specified classes of animals or plants, and also to declare that a specified area is a declared area and to declare prohibitions for those areas and classes of animals or plants. Such a declaration cannot, except in specified circumstances, be made in respect of a class of native animals. The clause further provides for the establishment of three different categories of animals or plants subject to a declaration under this clause.

Division 2—Control provisions

Subdivision 1—Specific controls

184—Movement of animals or plants

This clause creates offences relating to the movement of certain animals or plants into or within a declared area. There is a defence available where the movement was carried out in accordance with a written approval given by an authorised officer, or the circumstances constituting the offence were not the result of a wilful or negligent act on the part of the defendant. An authorised officer may, subject to any specified conditions, exempt a person from complying with a requirement of this clause. The exemption is to be given in writing, or if given orally, confirmed in writing within 2 business days.

185—Possession of animals or plants

This clause creates offences relating to the keeping or possession of certain animals (either outside or within a declared area for that animal). It also sets out an offence in relation to the possession of certain plants within a declared area for that plant. The penalties for these offences are graduated according to the category of animal or plant.

186—Sale of animals or plants, or produce or goods carrying animals or plants

This clause creates offences relating to the sale of certain animals and plants (and other things carrying certain animals or plants), with the penalties graduated according to the category of animal or plant. There is a defence available where the movement was carried out in accordance with a written approval given by an authorised officer, or the circumstances constituting the offence were not the result of a wilful or negligent act on the part of the defendant. An authorised officer may, subject to any specified conditions, exempt a person from complying with a requirement of this clause. The exemption is to be given in writing, or if given orally, confirmed in writing within 2 business days.

187—Offence to release animals or plants

This clause creates offences relating to the release of certain animals (either within or outside a declared area). It also sets out an offence in relation to the release of certain plants within a declared area for that plant. There is a defence available where the circumstances constituting the offence were not the result of a wilful or negligent act on the part of the defendant, however the defence does not apply where an authorised officer furnished the defendant with a notice warning the defendant of specified matters. The clause also provides that the certain costs incurred as a result of a contravention of the clause can be recovered. An authorised officer may, subject to any specified conditions, exempt a person from complying with a requirement of this clause.

188—Notification of presence of animals or plants

This clause requires an owner of land within a declared area to notify within a prescribed period, the regional landscape board for the area in which the land is situated of the presence of certain animals and plants. The clause further requires a regional landscape board to notify the Chief Executive within 48 hours in the event that the board becomes aware of the presence of certain animals and plants within a declared region within its region (other than by notification under subclause (1)). If the Chief Executive becomes aware of the presence of certain animals or plants on land within a declared area for that animal or plant, other than by notification under subclause (2), the Chief executive is to notify the relevant regional landscape board for the area within 48 hours of that fact, and the locality at which the animal or plant was last seen or found.

189—Requirement to confine certain animals or plants

This clause requires the owner of land within a declared area to comply with the instructions of an authorised officer in relation to the keeping or management of certain animals and plants in the person's possession, with the penalties linked to the category of animal or plant.

190—Owner of land to take action to destroy or control animals or plants

This clause requires the owner of land within a declared area to destroy certain animals and plants on that land. The clause also requires the owner of land within a declared area to control, and keep controlled, certain animals and plants on that land. An owner of land within a declared area for certain animals or plants must take such prescribed measures or measures specified by a relevant authority for the control of those animals or plants, or to subject the animals or plants to specified treatment. A relevant authority may, subject to any conditions, exempt a person from those requirements. Breaching a requirement under this clause does not, in itself, make the person liable to civil action, but the person is subject to the operation of the requirements under clause 191 and Pat 10 in relation to action orders. The clause also requires a regional landscape board to carry out proper measures for the destruction or control of certain animals and plants on road reserves within a declared area for those animals or plants.

191—Action orders

This clause enables a relevant authority to issue to a land owner in breach of clause 190(1), (2) or (3), with an action order. An action order must specify the animals or plants to which it applies, the land or area to which it applies, and the action that is required to be taken to destroy or control the relevant animals or plants. It must also specify the period within which that action is to be taken. It is an offence for a person to fail to comply with an action order. A relevant authority may carry out appropriate measures in view of the failure of the person. The clause confers certain powers on the relevant authority, and reasonable costs and expenses may be recovered from the person to whom the order was issued.

192—Boards may recover certain costs from owners of land adjoining road reserves

This clause allows a regional landscape board, under certain circumstances, to recover costs and expenses for the destruction or control of certain animals or plants on road reserves from owners of land adjoining the road reserve. An unpaid amount may be recovered (with interest) as a debt against the owner, and may also be remitted in whole or in part by the regional landscape board.

193—Destruction or control of animals outside the dog fence by poison and traps

This clause allows an owner of land bounded by and inside the dog fence to lay poison or set traps in accordance with approved proposals on adjoining land immediately outside the dog fence for the purposes of destroying or controlling animals pursuant to this Division. The clause sets out the process for the approval of a proposal.

194—Ability of Minister to control or quarantine any animal or plant

This clause allows the Minister, by notice in the Gazette, for the purpose of controlling, or preventing the spread, of certain animals or plants, or the spread of any disease that may be carried by such an animal or plant, to declare a portion of the State to be a quarantine area. The clause sets out the requirements and prohibitions that a notice under this clause can contain. The Minister may, subject to any conditions, grant an exemption from the operation of a notice, or certain provisions of a notice, under this clause. It is an offence to contravene or fail to comply with a notice or a condition of an exemption.

Subdivision 2—Permits

195—Permits

This clause allows the relevant authority to issue a permit to a person authorising the movement, keeping, possession or sale of certain animals and plants to allow an act, activity or circumstance that would otherwise not be permitted under Subdivision 1. A permit may be subject to conditions. However, a permit may not be issued if a provision of Subdivision 1 acts as an absolute prohibition of the conduct for which a permit is sought. In issuing a permit, or imposing any conditions of a permit, a relevant authority must take into account any relevant provisions of a landscapes affecting activities control policy, and seek to further the objects of the River Murray Act 2003 and the Objectives for a Healthy River Murray under that Act to the extent they are relevant. The clause also sets out consultation requirements for certain circumstances. It is an offence to contravene or fail to comply with a provision or condition of a permit.

Subdivision 3—Related matters

196—Animal-proof fences

This clause provides that a certificate of the Minister is admissible as proof of certain matters in relation to the Fences Act 1975.

197—Offence to damage certain fences

This clause creates an offence for a person to interfere with an animal-proof fence except with the permission of the owner of the land on which the fence is situated. The court may order a person convicted of an offence under this clause to compensate the owner.

198—Offence to leave gates open

This clause creates an offence for a person to leave open a gate in an animal-proof fence except for as long as is reasonably necessary, or with the permission of the owner of the land on which the fence is situated.

199—Protection of certain vegetation and habitats

This clause creates an offence in relation to the clearance of native vegetation in taking measures to control animals or plants under this Part. A person must take all reasonable steps to ensure that clearance is not done except in accordance with the guidelines under the Native Vegetation Act 1991, and that damage or destruction to other vegetation is kept to a minimum. The clause also requires compliance with certain requirements set out in a landscapes affecting activities control policy or prescribed by the regulations relating to the protection of certain native animals and their habitats.

Part 10—Enforcement

Division 1—Authorised officers

200—Authorised officers

This clause provides for the Minister to appoint persons to be authorised officers.

201—Identity cards

This clause requires authorised officers be issued with identity cards. Before exercising powers under the measure, an authorised officer must, on request, produce their identity card for inspection.

202—Powers of authorised officers

This clause sets out the powers of authorised officers under the measure. These include powers of entry, inspection, seizure, and the giving of directions. The exercise of powers in relation to residential premises requires the authority of a warrant or that the officer believes on reasonable grounds that a Category 1 or 2 animal (as declared under clause 183) is present on the premises.

203—Provisions relating to seizure

This clause sets out provisions applying when a thing has been seized in the exercise of powers under clause 202.

204—Hindering etc persons engaged in the administration of this Act

This clause creates certain offences relating to persons engaged in the administration of the measure.

Division 2—Civil remedies

Subdivision 1—Orders issued by landscape boards

205—Protection orders

This clause enables a regional landscape board or an authorised officer to issue a protection order to secure compliance with the requirements of the general statutory duty under clause 8, or with a duty under clause 108 in relation to damage to a watercourse or lake. It may also be used to secure compliance with the requirements of Part 8 Division 6, clause 190, a management agreement or any other prescribed requirement. The clause sets out the requirements and procedures in relation to making such an order. A protection order may be appealed to the ERD Court within 21 days. An authorised officer may issue an emergency protection order orally in certain circumstances, but must then confirm the order in writing. It is an offence to refuse or fail to comply with an order.

206—Action on non-compliance with a protection order

This clause allows a relevant authority (that is, a regional landscape board or the Chief Executive) to take the action required by a protection order in the event that the requirements of the order are not complied with. The authority may recover, as a debt from the person who failed to comply with the order, the reasonable costs and expenses incurred in taking action under this clause.

207—Reparation orders

This clause enables a regional landscape board or an authorised officer to issue a reparation order if satisfied that a person has caused harm to a natural resource by contravention of the requirements of the general statutory duty under clause 8, or with a duty under clause 108 in relation to damage to a watercourse or lake. It may also be issued if the board or officer is satisfied harm has been caused due to a contravention of the requirements of Part 8 Division 6, clause 190, a management agreement or any other prescribed requirement. A reparation order may require specific action be taken, or certain payments to be made, or both. The clause sets out requirements and procedures in relation to making such an order. A reparation order may be appealed to the ERD Court within 21 days. An authorised officer may issue an emergency reparation order orally in certain circumstances, but must then confirm the order in writing. It is an offence to refuse or fail to comply with an order.

208—Action on non-compliance with a reparation order

This clause allows a relevant authority (that is, a regional landscape board or the Chief Executive) to take the action required by a reparation order in the event that the requirements of the order are not complied with. The authority may recover, as a debt from the person who failed to comply with the order, the reasonable costs and expenses incurred in taking action under this clause.

209—Reparation authorisations

If satisfied that a person has caused harm to any natural resource by contravention of the requirements of the general statutory duty under clause 8, or with a duty under clause 108 in relation to damage to a watercourse or lake, a relevant authority may issue a reparation authority under which authorised officers or other authorised persons may take specified action on the authority's behalf to make good damage to the natural resource. A reparation authority may also be issued in relation to a contravention of the requirements of Part 8 Division 6, clause 190, a management agreement or any other prescribed requirement. The clause also sets out procedures and requirements in relation to making such an authorisation.

210—Related matter

This clause provides that a person cannot claim compensation from the Crown, a regional landscape board, the Chief Officer, an authorised officer or other authorised person in respect of a requirement imposed by or under this Subdivision, or an act or omission undertaken or made in good faith in the exercise of a power under this Subdivision.

211—Registration

This clause allows the relevant authority to have the Registrar-General register an order or authorisation issued under this Subdivision relating to an activity carried out on land, or requiring a person to take action on or in relation to land. Such an order or authorisation is binding on each owner and occupier from time to time of the land. The Registrar-General must, on application by the relevant authority, cancel the registration of such an order or authorisation and make appropriate endorsements to that effect.

212—Effect of charge

This clause sets out the priority of a charge imposed on land under this Subdivision.

Subdivision 2—Orders made by ERD Court

213—Orders made by ERD Court

This clause sets out the orders that the ERD Court can make, on application, in relation to this measure, and the requirements and procedures in relation to such orders. These orders include orders that may be in the nature of restraining a person from engaging in particular conduct that is in contravention of this measure, or requiring a person to take particular action.

Part 11—Appeals

214—Right of appeal

This clause sets out specific rights of appeal to the ERD Court. An appeal will, in the first instance, be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993.

215—Operation and implementation of decisions or orders subject to appeal

The making of an appeal will not, in itself, affect the operation of any decision, order, direction or restriction to which the appeal relates. However, the Court, or the relevant authority that has made the decision or other action to which the appeal relates, may suspend the operation of the decision or other action if it thinks fit. A suspension may be granted subject to conditions.

216—Powers of Court on determination of appeals

The Court will have a range of powers on the hearing of an appeal, including to confirm, vary or reverse any decision, or substitute any decision, to order or direct a person or body to take such action as the Court thinks fit, and to make consequential or ancillary orders or directions.

Part 12—Management agreements

217—Management agreements

The Minister will be able to enter into a management agreement relating to the protection, conservation, management, enhancement, restoration or rehabilitation of any natural resources, or any other matter associated with furthering the objects of the Bill. The management agreement will be entered into with the owner of the land. The agreement will not have any force or effect under the Bill until a note relating to the agreement is entered on the relevant instrument of title or against the land.

Part 13—Miscellaneous

218—Avoidance of duplication of procedures etc

This clause will allow an authority to accept a document or recognise a procedure under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth for the purposes of this measure.

219—Native title

Nothing done under this measure will be taken to affect native title in any land or water, unless the effect is valid under a law of the State or the Native Title Act 1993 of the Commonwealth.

220—Service of notices or other documents

This clause provides for the service of notices or documents.

221—Publication of notices by Minister

This clause provides that if the Minister is authorised to publish a notice under the measure, the Minister should consider the effectiveness of the method that will best bring the notice to the attention of those who will be directly affected by the notice.

222—Money due to Minister

Money that is due to the Minister or another authority may be recovered as if it were unpaid levy.

223—Compulsory acquisition of land

This clause confers on the Minister a specific power to acquire land under the Land Acquisition Act 1969 for the purposes of the measure.

224—Compensation

This clause provides for the payment of compensation in certain circumstances.

225—Immunity from liability

This clause provides specific protection in relation to an owner of land, the Minister, a person engaged in the administration of the measure, or another authority or person who destroys an animal or plant, captures or removes an animal, or takes other action in relation to the control of animals or plants.

226—Vicarious liability

For the purposes of this measure, an act or omission of an employee or agent will be taken to be an act or omission of the employer or principal unless it is proved that the person was acting otherwise than in the course of the employment or agency.

227—False or misleading information

It will be an offence to provide false or misleading information under the measure.

228—Interference with works or other property

This clause sets out offences relating to interference with infrastructure, works and other property.

229—Criminal jurisdiction of Court

Certain offences prescribed by the regulations will lie within the criminal jurisdiction of the ERD Court.

230—Proceedings for offences

This clause provides for the commencement of proceedings for offences against the measure to be within 5 years of the date on which the offence was alleged to have been committed, and sets out who may commence those proceedings.

231—General defence

This clause provides for a general defence to a charge of an offence under this measure if the defendant proves that the offence was not committed intentionally and did not result from any failure of the defendant to take reasonable care to avoid the commission of the offence.

232—Offences by bodies corporate

These clauses are standard clauses.

233—Additional orders on conviction

This clause will allow a court on recording a conviction under the measure to require a person to take specified action to rectify the consequences of any contravention of the measure or to ensure that a further contravention does not occur, or to pay to the Crown an amount assessed by the court to be equal to any financial benefit that has been gained, or can reasonably be expected to be gained, as a result of the commission of the relevant offence.

234—Continuing offence

A person convicted of an offence will be liable to a penalty with respect to any continuing act or omission.

235—Constitution of Environment, Resources and Development Court

This clause deals with the constitution of the ERD Court when it is exercising jurisdiction under the measure.

236—Evidentiary

This clause provides for the proof of certain matters and the application of various presumptions.

237—Determination of costs and expenses

This clause makes it clear that the costs of an authority under the measure are the full costs that could be charged by an independent contractor.

238—Minister may apply assumptions and other information

The Minister will be able to apply various assumptions for the purposes of the measure.

239—Landscape Scheme Register

This clause requires the Minister to keep a register (the Landscape Scheme Register) of water management authorisations, forest water licences, permits, action plans and other prescribed matters. There will be a part of the register that relates to entitlements under Part 8 of the measure as set out in Schedule 4 to be known as The Water Register.

240—Confidentiality

A person engaged in the administration of the measure will be required to keep certain information confidential unless the person is acting in the performance of official duties or as required by law or authorised by the Minister.

241—Damage caused by non-compliance with a notice etc

A person who suffers loss as a result of a failure on the part of another person to comply with a requirement relating to an action plan, or an action order or an order issued by a regional landscape board under Part 10 Division 2 Subdivision 1, may recover damages from that other person.

242—Recovery of technical costs associated with contraventions

This clause will allow a specified authority to recover costs and expenses in taking samples or conducting tests, examinations or analyses, in the course of investigating a contravention of the measure.

243—Delegation by Chief Executive

This clause provides that the Chief Executive may delegate a function or power under this measure to another body or person.

244—Incorporation of codes and standards

A notice or regulation under the measure may apply, adopt or incorporate, with or without modification, any code, standard or other appropriate document.

245—Exemption from Act

This clause provides that the Governor may make regulations with respect to exemptions from the operation of the measure.

246—Regulations

This is a general regulation-making clause.

Schedule 1—Regulations

This Schedule sets out various matters for which regulations may be specifically made.

Schedule 2—Activities control policies

This Schedule sets out the provisions that relate to landscapes affecting activities control policies and water affecting activities control policies, including the review, preparation, amendment and approval of such policies.

Schedule 3—Classes of wells in relation to which a permit is not required

This Schedule sets out classes of wells that are exempt from the requirement for a permit.

Schedule 4—The Water Register

This Schedule sets out provisions that relate to the keeping of The Water Register. These include matters relating to the recording of information and management of the Register, the registration of entitlements under Part 8 of the measure, special arrangements in relation to specified transfers, and the registration of security interests.

Schedule 5—Related amendments, repeals and transitional provisions

This Schedule sets out related amendments to other Acts. The Natural Resources Management Act 2004 is to be repealed. Part 30 of the Schedule sets out various provisions addressing a number of transitional issues associated with the enactment of this new legislation.

Debate adjourned on motion of Dr Close.