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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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SOUTH EAST DRAINAGE SYSTEM OPERATION AND MANAGEMENT BILL

Introduction and First Reading

The Hon. P. CAICA (Colton—Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (17:47): Obtained leave and introduced a bill for an act to provide for the operation and management of the drainage system and related infrastructure in the South East of the state; to provide for the management of water flows and wetlands in the South East of the state; to establish the South Eastern Drainage Management Board; to repeal the South Eastern Water Conservation and Drainage Act 1992; to make related amendments to the Natural Resources Management Act 2004; and for other purposes. Read a first time.

Second Reading

The Hon. P. CAICA (Colton—Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (17:48): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The South East region in South Australia is rich in natural resources, having nationally and internationally recognised wetland and marine environments. The region is also a key primary production, energy resources and tourism district, contributing over $3 billion annually to State Gross Domestic Product.

The drainage system in the lower and upper South East, comprised of over 2,500 kilometres of drains and floodways, forms a critical part of this economic and social infrastructure. It supports the region's capacity to undertake economic activity, maintain transport networks and protect highly valued natural environments.

Development of the lower South East drainage system commenced in 1863 to remove waterlogging with the goal of maintaining the region's productivity. The majority of the drains were constructed from 1949 to 1972. More recently, this system is also being managed to improve environmental assets, including endangered species listed in the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth by directing and managing available water.

The upper South East drainage system was initiated in the 1990s to address community concerns about dryland salinity, waterlogging, degradation, and fragmentation of ecosystems. These drains and floodways were completed in June 2011. This included the Restoring Flows to the Wetlands of the Upper South East of South Australia project to reinstate natural watercourse flows between the upper and lower South East, including wetlands, watercourses and, ultimately, the Coorong.

The construction, maintenance and management of these drainage networks are managed through the South Eastern Water Conservation and Drainage Act 1992 and the Upper South East Dryland Salinity and Flood Management Act 2002.

The South East Drainage System Operation and Management Bill is part of a journey towards greater integration, through managing the total drainage system under a single umbrella. This Bill establishes arrangements for managing both the lower and upper South East drainage systems and ensures that water in the drainage systems, wetlands and environmental assets in the South East will be managed to:

protect infrastructure, land, soils and ecosystems from flooding;

provide water for environmental purposes to enhance the natural environment, including wetlands;

protect and enhance agricultural lands for production purposes; and

assist in the proper conservation and management of water.

Under this Bill, the South East Natural Resources Management Board will be responsible for policy and strategic planning for the management of water in the drainage system and wetlands. The South East Natural Resources Management Board will develop a South East Drainage and Wetland Management Strategy to cater for this. The Strategy will establish flow regimes that strike a balance between providing water for environmental, primary production, social and cultural purposes. The Strategy will form part of the regional Natural Resources Management Plan and provide clear direction for the new South Eastern Drainage Management Board.

A new South Eastern Drainage Management Board will be responsible for managing, maintaining and operating the drainage system in accordance with the Strategy. Membership will be skills based, comprise of not more than seven members, and be appointed by the Governor. In carrying out its functions, the Board must act consistently with any relevant regional Natural Resources Management Plan and any relevant water allocation plan.

The Bill provides for the raising of a levy to help support an effective drainage system for the benefit of regional landholders into the future. Funds may be raised from landholders, beneficiaries of the drainage system and persons whose activities contribute to the need for the drainage system. It is recognised that economic and environmental benefits from both the upper and lower South East systems occur at local, regional, state and national levels. Any future decision to progress a levy would be the subject of consultation with the new South Eastern Drainage Management Board and a comprehensive social impact assessment, including an assessment of the relative public and private benefits of the drainage system.

In the Bill, penalties are aligned with the Upper South East Dryland Salinity and Flood Management Act 2002. This recognises the need to maintain the integrity of the drainage system in order to meet the objectives of the Bill. Additionally, evidentiary provisions are necessary to ensure that the integrity of the drainage system and economic, social and environmental values of the region are not severely compromised. Such evidentiary provisions are essential when in a few instances it is necessary to undertake proceedings against a landowner.

This Bill will repeal the South Eastern Water Conservation and Drainage Act 1992.

This Bill is a pivotal means of ensuring the continued success of the both the upper and lower South East drainage systems through the integrated management of the total drainage system, including drains, wetlands and environmental assets of the upper and lower South East.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause provides for definitions of words and phrases used in the measure. In particular, the drainage system is defined as—

the water management works within the meaning of the South Eastern Water Conservation and Drainage Act 1992 (to be repealed under Schedule 1 of this measure); and

any works operated, constructed or maintained by the South Eastern Drainage Management Board (SEDMB) (established under Part 3 of the measure); and

works are defined as—

any channel, drain, artificial drainage hole, dam, bank or other device or works constructed or used for the purposes of conserving, draining or altering the flow of surface water from or onto land or utilising any such water, including any ancillary access road, bridge or culvert or other ancillary works; and

any works constructed for the purpose of lowering water table levels; and

any other infrastructure or works related or ancillary to a system referred to above.

The area of the State affected by this measure is the South East, defined as that part of the State shown as the South East Natural Resources Management Region in General Registry Office Plan No GP27/2008, as varied from time to time by proclamation under the Natural Resources Management Act 2004. The clause also provides that another area may, from time to time, be designated as the South East by the Governor by proclamation. This mechanism provides for some flexibility should it be felt necessary, at some future time, to amend the definition of the area.

4—Interaction with other Acts

This measure is in addition to and does not limit or derogate from the provisions of any other Act and SEDMB must, in exercising powers under this measure, comply with the provisions of relevant Acts, although the measure is subject to—

the Pulp and Paper Mills Agreement Act 1958; and

the Pulp and Paper Mill (Hundreds of Mayurra and Hindmarsh) Act 1964.

The Minister to whom the administration of the Upper South East Dryland Salinity and Flood Management Act 2002 is committed may—

enter into agreements or other arrangements with SEDMB to undertake, coordinate or advance activities, works or other initiatives that are relevant to the operation of that Act; and

delegate any power or function of the Minister under that Act to SEDMB.

Part 2—Objects

5—Objects

The objects of this measure include the management of water in the drainage system and wetlands in the South East, and the operation of the drainage system—

to protect infrastructure, land, soils and ecosystems in the South East from flooding and dryland salinity; and

to provide water for environmental purposes for the enhancement of the natural environment of the South East; and

to protect and enhance agricultural land in the South East for the purposes of primary production; and

to assist in the proper conservation and management of water in the South East.

6—Administration of Act to achieve objects and to be consistent with objects of certain other Acts

The Minister and all other persons or bodies involved in the administration of this measure, or performing, exercising or discharging a function, power or duty under this measure, must have regard to, and seek to further, the objects.

The Minister and all other persons or bodies involved in the administration of this measure, or performing, exercising or discharging a function, power or duty under this measure, must seek to act consistently with—

the objects of the Natural Resources Management Act 2004 (insofar as they relate to the South East); and

the objects of the Environment Protection Act 1993 (insofar as they relate to the South East); and

the South East Drainage and Wetland Management Strategy.

The Minister and all other persons or bodies involved in the administration of this measure, or performing, exercising or discharging a function, power or duty under this measure, must, if or when taking any action within, or in relation to, any part of the Murray-Darling Basin, seek to act consistently with—

the objects of the River Murray Act 2003; and

the Objectives for a Healthy River Murray under that Act,

(insofar as they may be relevant).

Part 3—South East Drainage and Wetland Management Strategy

7—Preparation of Strategy and consultation

The South East Drainage and Wetland Management Strategy (the Strategy) for the management of water in the drainage system and wetlands in the South East is to be prepared and maintained by the South East Natural Resources Management Board (the SE NRM Board). The matters that the Strategy is to address, and the consultation and review processes relating to the Strategy, are set out in the clause.

The Strategy—

must set out the proposals of the SE NRM Board in relation to surface waters; and

must identify key environmental features and significant agricultural issues in the South East and set out the proposals of the SE NRM Board in relation to the management of those features and issues; and

should give consideration to Aboriginal heritage, and to the interests of the traditional owners of any land or water resources; and

must identify the aspects of the Strategy for which SEDMB is responsible; and

must identify the aspects of the Strategy for which any other person or body is responsible.

In setting out the SE NRM Board's proposals, the Strategy must—

include an assessment of the quantity and quality of water needed by the ecosystems that depend on the surface water and underground water resources and the times at which, or the periods during which, those ecosystems will need that water; and

provide guidance and direction to SEDMB on the management of the water in the drainage system, including flow management objectives and performance standards within an adaptive flow management framework; and

provide guidance and direction to the person or body to whom responsibility for the management of wetlands and watercourses is assigned; and

address each of the following matters:

(1) the protection of infrastructure, land, soils and ecosystems from flooding;

(2) the interaction between surface water and underground water;

(3) the provision of water for human consumption and for environmental, primary production, social and cultural purposes;

(4) the removal and disposal of underground water through the operation and management of the drainage system.

The Strategy must be consistent with the State NRM Plan and take into account various other matters listed in the provision and must be reviewed at least once in every 5 year period following its adoption.

8—Adoption of Strategy by Minister

On receipt of the draft of a proposal to create or amend the Strategy and a report on the draft, the Minister may—

adopt the draft with or without amendment; or

refer the draft back to the SE NRM Board for further consideration.

The Minister must consult with the SE NRM Board before making an amendment to the draft and the Strategy, and any amendment to the Strategy (other than a minor amendment) has no force or effect until adopted by the Minister.

9—Availability of Strategy

The SE NRM Board must—

make reasonable provision for the publication of the Strategy; and

ensure that copies of the Strategy are reasonably available for inspection (without charge) and purchase by the public at a place or places determined by the Minister; and

ensure that public notice is given of any amendment to the Strategy within a reasonable time after the amendment is made.

The Strategy is an expression of policy and does not in itself affect rights or liabilities (whether of a substantive, procedural or other nature).

Part 4—Administration

Division 1—South Eastern Drainage Management Board

Subdivision 1—Establishment of South Eastern Drainage Management Board

10—Establishment of South Eastern Drainage Management Board

The South Eastern Drainage Management Board (SEDMB) is established as a body corporate (see also the transitional arrangements to come into effect on the repeal of the South Eastern Water Conservation and Drainage Act 1992 which provides that it is the same body corporate as the South Eastern Water Conservation and Drainage Board continued under that Act).

Subdivision 2—Membership and proceedings

11—Membership

SEDMB will consist of not more than 7 members appointed by the Governor on the nomination of the Minister. Those persons will collectively have the knowledge, skills and experience necessary to enable the Board to carry out its functions effectively. 1 member will be appointed as the presiding member and provision is made for deputies.

12—Conditions of membership

The term of membership will not exceed 4 years and the terms and conditions of membership will be as determined by the Governor and specified in the instrument of appointment. While a member may be reappointed for a further term, a member may not serve for more than 8 consecutive years. This clause makes provision for the removal and vacancy in the office of a member in the usual terms.

13—Proceedings

This clause makes provision for the manner in which the proceedings of SEDMB are to be conducted, including provisions relating to the presiding member, voting on decisions, quorum and minutes.

14—Committees

This clause makes provision for SEDMB to establish committees to advise SEDMB or to carry out functions on behalf of SEDMB.

15—Validity of acts

This clause provides that an act or proceeding of SEDMB or a committee of SEDMB is not invalid by reason only of a vacancy in its membership.

16—Remuneration

This clause makes provision for remuneration, expenses etc to be paid to members of SEDMB as determined by the Governor.

Subdivision 3—Functions

17—Functions

This clause provides that the functions of SEDMB are—

to carry out each of the following in accordance with the Strategy:

(1) to construct, manage, repair, clean and otherwise maintain the drainage system and related works;

(2) to operate the drainage system;

(3) to manage water flow in the South East;

(4) to manage wetlands and watercourses in the South East; and

to carry out any other function assigned to SEDMB—

(1) at the request of the Minister or by negotiation with another person or body—that may assist the Minister or the other person or body in connection with the protection, management or enhancement of any aspect of the environment in the South East; or

(2) under the Strategy; or

(3) under this or any other Act; or

(4) by the Minister.

In carrying out its functions, SEDMB must—

ensure that its activities are consistent with the Strategy; and

encourage and promote active community involvement in water conservation and management matters; and

seek, in the first instance, to undertake its activities on the basis of negotiation with landholders and all other relevant persons or authorities.

Subdivision 4—Powers

18—General powers

SEDMB has the powers of a natural person and may do anything necessary, expedient or incidental to performing the functions conferred on SEDMB under this or any other Act.

SEDMB may, for example—

enter into a contract, agreement or arrangement of any kind (whether with landholders or any other person or authority);

acquire, hold, deal with or dispose of real or personal property or any interest in real or personal property, including for the purposes of a statutory easement;

seek expert or technical advice on any matter from any person on such terms and conditions as SEDMB thinks fit.

SEDMB may, with the consent of the Minister, compulsorily acquire land under the Land Acquisition Act 1969.

19—Power to enter, inspect, etc land

This clause makes provision for the powers that SEDMB may exercise within SEDMB's area.

20—Power to carry out works

This clause makes provision for the powers that SEDMB may exercise in relation to the construction, alteration, removal, etc of works relating to the drainage system.

21—Power to fence works

SEDMB—

may cause any of its works relating to the drainage system or a drainage reserve under its care, control and management to be fenced to such extent and in such manner as is reasonably adequate—

(1) for the purpose of protecting the works or reserve from damage; or

(2) for any other purpose reasonably connected with the operation of the drainage system or drainage reserve; and

may cause any such fence to be repaired, maintained or replaced as is reasonably necessary.

Subdivision 5—Business plan

22—Business plan

SEDMB will be required, before 31 March in each year, to submit to the Minister for approval a business plan developed in consultation with the SE NRM Board.

Subdivision 6—Staff

23—Staff

SEDMB's staff will consist of Public Service employees assigned to assist SEDMB and SEDMB may, under an arrangement, make use of the services or staff of an administrative unit of the Public Service.

Subdivision 7—Miscellaneous

24—Delegation

This clause makes provision for SEDMB to delegate its functions by instrument in writing.

25—Accounts and audit

SEDMB must cause proper accounts to be kept of its financial affairs and financial statements to be prepared in respect of each financial year. The Auditor-General may at any time, and must in respect of each financial year, audit the accounts and financial statements.

26—Annual report

SEDMB must, on or before 30 November in each year, provide to the Minister a report on its activities for the financial year ending on the preceding 30 June (and need not provide a report under the Public Sector Act 2009). The report must include an assessment of the extent to which SEDMB has succeeded in implementing during the relevant financial year the aspects of the Strategy for which SEDMB is responsible. The Minister must cause a copy of a report provided to the Minister under this provision to be laid before both Houses of Parliament within 12 sitting days after receiving the report.

Division 2—Authorised officers

27—Appointment of authorised officers

Under this clause, provision is made for the Minister to appoint persons who are authorised officers under the Natural Resources Management Act 2004 to be authorised officers for the purposes of this measure. Further provision is made for conditions of appointment, variation or revocation of appointment and identification of such officers.

28—Powers of authorised officers

This clause provides that an authorised officer may, subject to conditions and limitations of the appointment, exercise his or her powers under Chapter 3 Part 6 of the Natural Resources Management Act 2004 for the purposes of the administration and enforcement of this measure.

Part 5—Operation, maintenance, etc of drainage system

Division 1—Vesting of works related to drainage system

29—Vesting of works related to drainage system

This clause makes provision for the Minister, by notice in the Gazette, to vest—

specified private works related to the drainage system in SEDMB; or

specified SEDMB works related to the drainage system in another specified person or body;

specified works of the Minister related to the drainage system in SEDMB.

Division 2—Water in drainage system is property of Crown

30—Water in drainage system is property of Crown

This clause provides that water in the drainage system is the exclusive property of the Crown and a person must not take or use water from the drainage system except in accordance with an authorisation of the Minister. Such authorisation (which may be subject to conditions) may not be given unless the Minister is satisfied that it would be consistent with the Strategy.

It is an offence for a person to take or use water from the drainage system otherwise than in accordance with this clause, the penalty for which is a fine of $200,000 for a body corporate, and, for a natural person, a fine of $100,000 or imprisonment for 2 years (or both).

It is also an offence if a person contravenes or fails to comply with an authorisation of the Minister under this clause, or a condition to which such an authorisation is subject. A body corporate guilty of this offence will be subject to a fine of $70,000 while, for a natural person, the penalty is a fine of $35,000. The offence may, however, be expiated on payment of a fee of $750.

This clause does not apply if the water is taken or used—

from a part of the drainage system that is a prescribed water resource under the Natural Resources Management Act 2004 (because, in that case, the taking or use is regulated by that Act); or

for firefighting in urgent circumstances.

Division 3—Management agreements

31—Management agreements

This clause authorises the Minister to enter into a management agreement with the owner of land within the South East relating to—

the conservation or management of water, or the management of any water table; or

the preservation, conservation, management or re-establishment of any key environmental feature; or

any other matter associated with the drainage system.

A management agreement may include terms that, for example—

require specified work or work of a specified kind be carried out on the land, or authorise the performance of work on the land;

restrict the nature of any work that may be carried out on the land;

prohibit or restrict specified activities or activities of a specified kind on the land;

provide for the management of any matter in accordance with a particular management plan;

provide for the adoption or implementation of measures to protect the environment or programs to improve the environment;

provide for the testing or monitoring of any key environmental feature, or of any matter that may affect a key environmental feature;

provide for a reduction in, or exemption from, a levy under Part 6;

provide for remission of rates or taxes in respect of the land;

provide for the Minister to pay to the owner of the land an amount as an incentive to enter into the agreement.

The Registrar-General must, on application by a party to a management agreement, note the agreement against the relevant instrument of title. Once that has been done, the management agreement is binding on each owner of the land from time to time.

Division 4—Licence to carry out work or activities relating to drainage system

32—Application of Division

This Division does not apply to a person undertaking a water affecting activity under the Natural Resources Management Act 2004 authorised (whether before or after the commencement of this clause) under Chapter 7 of that Act.

33—Certain work and activities not to be carried out without licence

This clause makes provision for a licensing scheme in relation to works relating to the drainage system. It is an offence for a person to—

construct works relating to the drainage system on land in the South East; or

remove or alter any works relating to the drainage system (whether constructed before or after the commencement of this measure on land in the South East; or

close off or obstruct in any way any drainage hole,

that might stop, increase, decrease or otherwise affect the flow of water from or onto the land, or the flow of water into a watercourse, wetland or the drainage system, except under a licence granted under this Division. The penalty for such an offence by a body corporate is a fine of $200,000 and, for a natural person, a fine of $100,000 or 2 years imprisonment (or both).

Subclause (2) makes it an offence for a person, except under a licence granted under this Division, to erect a bridge or construct a culvert or ford over, through or along any works relating to the drainage system or a drainage reserve. The penalty for such an offence is the same as for an offence against subclause (1).

Subclause (3) provides that the 2 previous subclauses do not apply—

to a person carrying out certain works or undertaking a prescribed activity of environmental significance carried out or undertaken in accordance with Part 6 of the Environment Protection Act 1993; or

to a council that, following consultation with SEDMB, carries out works for—

(i) the construction or alteration of a building or structure for stormwater or flood management activities in a township; or

(ii) the installation or alteration of any plant or equipment for stormwater or flood management activities in a township.

Subclause (4) makes it an offence for a person to discharge a substance into the drainage system other than under a licence granted under this Division. This subclause does not, however, apply to a council discharging stormwater into the drainage system in accordance with an approved stormwater management plan following consultation with SEDMB.

Provision is also made for regulations to be made prescribing exemptions from the operation of this clause.

34—Grant of licences

This clause makes provision for the application for licences to, and the grant of licences by, SEDMB.

Division 5—Discharge by council of stormwater into drainage system

35—Discharge by council of stormwater into drainage system

A council must not discharge stormwater into the drainage system except—

in accordance with an approved stormwater management plan following consultation with SEDMB; or

under a licence granted under Division 4.

Division 6—Drainage system not to be interfered with

36—Drainage system not to be interfered with

A person must not, without the permission of SEDMB, act in a manner that the person knows will interfere with, or is likely to interfere with—

the drainage system; or

works related to the drainage system, or the operation of any such works; or

a drainage reserve; or

a road adjoining a drainage reserve; or

any other aspect of the drainage system.

The penalty for such an offence is a fine of $200,000 for a body corporate and $100,000 or imprisonment for 2 years (or both) for a natural person.

A person must not, without the permission of SEDMB, act in a manner that the person ought reasonably to know is likely to interfere with—

the drainage system; or

works related to the drainage system, or the operation of any such works; or

a drainage reserve; or

a road adjoining a drainage reserve; or

any other aspect of the drainage system.

The penalty for this lesser offence is a fine of $50,000 for a body corporate and $25,000 for a natural person.

Permission under this clause may be granted as part of a licence or in such other manner as SEDMB thinks fit, and may be conditional. A breach of a condition of SEDMB will be subject to a penalty of $50,000.

Division 7—Orders

37—Protection orders

SEDMB may issue a protection order for the purpose of addressing an activity that, in the opinion of SEDMB, is having an adverse effect on—

the operation or management of any part of the drainage system; or

a wetland or watercourse; or

a key environmental feature

Or for the purpose of securing compliance with a management agreement, a condition of licence or permission, or any other requirement imposed under this measure.

A protection order—

must be in the form of a written notice served on the person to whom the notice is issued; and

must specify the person to whom it is issued (whether by name or description sufficient to identify the person); and

must specify the purpose for which the order is issued; and

may impose any requirement reasonably required for the purpose for which the order is issued.

In urgent situations, a protection order may be issued orally so long as it is confirmed in writing within 72 hours of being issued.

It is an offence for a person to whom a protection order has been issued not to comply with the order. The penalty for such an offence is a fine of $200,000 for a body corporate and $100,000 for a natural person.

38—Reparation orders

Under this clause, SEDMB may issue a reparation order requiring a person to take specified action within a specified period to remedy any contravention or non-compliance with this measure, or to ensure the proper management or conservation of surface or underground water.

A reparation order—

must be in the form of a written notice served on the person to whom it is issued; and

must specify the person to whom it is issued (whether by name or description sufficient to identify the person); and

must state the grounds on which it is made with reasonable particularity; and

may include requirements for action to be taken;

may include or address any other prescribed matter.

The penalty for failure to comply with a reparation order is $200,000 for a body corporate and $100,000 for a natural person.

39—Registration of orders

This clause provides that, on application by SEDMB and lodgment of a copy of an order under this Division of the measure, the Registrar-General must note the order against the instrument of title of the land to which the order relates. On such noting, the order is binding on each owner and occupier from time to time of the land. The revocation of any such order must likewise be noted on the title.

40—Action on non-compliance with order

Under this clause, SEDMB is given power to take any action as may be required by an order under this Division of the measure if the requirements of the order are not complied with and, in doing so, may recover any reasonable costs and expenses incurred by SEDMB in taking the action.

Division 8—Civil remedies

41—Orders of ERD Court

This clause provides that applications may be made to the Environment, Resources and Development Court (ERD Court) for 1 or more of the following orders:

if a person has engaged, is engaging or is proposing to engage in conduct in contravention of this measure—an order restraining the person from engaging in the conduct and, if the Court considers it appropriate to do so, requiring the person to take any specified action, including specified action to make good or address any impact or harm that has occurred as a result of that conduct;

if a person has refused or failed, is refusing or failing or is proposing to refuse or fail to take any action required by this measure (including by failing to comply with an order under Division 7)—an order requiring the person to take that action (including to comply with an order under that Division);

if the Court considers it appropriate to do so—an order against a person who has contravened this measure for payment (for the credit of the Consolidated Account) of an amount in the nature of exemplary damages determined by the Court.

42—Interim restraining orders to prevent harm to key environmental features

Under this clause, if it appears—

that an activity may cause, or may be causing, harm to a key environmental feature; but

that there is insufficient information available to SEDMB to enable it to assess the likelihood of harm, or the extent or impact of harm, to the key environmental feature; and

that an order under this section is necessary to ensure the protection of the key environmental feature pending the acquisition and assessment of information by SEDMB,

the ERD Court may, on the application of SEDMB, issue an interim restraining order under this section requiring a person to discontinue, or not commence, a specified activity. A person who fails to comply with an order under this clause is subject to a penalty of $50,000.

Division 9—Appeals

43—Rights of appeal

This clause provides for a right of appeal to the ERD Court in the following cases:

an applicant for a licence under Division 4 may appeal against a decision to refuse a licence;

the holder of a licence may appeal against a decision to vary or add to the conditions to which the licence is subject;

a person who has been required by a notice under Division 7 to take specified steps may appeal against a requirement of the notice.

44—Decision or requirement may be suspended pending appeal

Where a decision or requirement has been made by SEDMB, and SEDMB or the ERD Court is satisfied that an appeal against the decision or requirement has been instituted, or is intended, this clause provides that SEDMB or the Court may suspend the operation of the decision or requirement until the determination of the appeal. Such a suspension may be terminated at any time.

Part 6—Contribution to funding of drainage system

45—Contribution to funding of drainage system

This clause provides for the Minister to levy contributions from landholders, persons whose activities (in the opinion of the Minister) contribute to the need for the drainage system and any other person who (in the opinion of the Minister) benefits from the drainage system. The clause then sets out the procedure that must be followed by the Minister in relation to the setting and collection of levies.

The clause also provides that a contribution will not be levied in respect of land to the extent that a management agreement relating to the land provides for a reduction in, or exemption from, the levy.

Part 7—Miscellaneous

46—Native title

This clause provides that nothing done under this measure will be taken to affect native title in any land or water (although that will not apply if the effect is valid under a law of the State or the Native Title Act 1993 of the Commonwealth).

47—Immunity provision

This clause provides that no act or omission undertaken or made by the Minister or any other person engaged in the administration of this measure, or by another person or body acting under the authority of the Minister, with a view to exercising or performing a power or function under this measure (including by causing the level of any water resource to rise or fall, inundating any place, causing or allowing any water to escape or to be redirected, taking action that may damage any land or property, or adversely affecting the use or enjoyment of any land or property), gives rise to any liability (whether based on a statutory or common law duty to take care or otherwise) against the Minister, person or body, or the Crown.

48—Delegation

This clause provides the Minister with the power to delegate any of the Minister's powers or functions under this measure or any other Act that is relevant to the operation or administration of this measure. It is in the usual terms. The only power that the Minister may not delegate is this power and the power to vest works under Part 5Division 1.

49—Power to waive or defer payments

This clause enables the Minister or SEDMB to waive or defer payment (on such conditions as the Minister or SEDMB thinks fit) of any amount due and payable under this measure.

50—Proceedings for offences

This clause provides that proceedings for an offence against this measure may be commenced within 5 years after the date on which the offence is alleged to have been committed.

51—Offences by body corporate

Under this clause, if a body corporate is guilty of an offence against this measure, the manager and each member of the governing body of the body corporate is guilty of an offence against this measure and liable to the same penalty as may be imposed for the principal offence when committed by a natural person unless the manager or member (as the case may be) proves that he or she could not by the exercise of due diligence have prevented the commission of the offence.

52—Vicarious liability

This clause provides that, for the purposes of this measure, an act or omission of an employee or agent will be taken to be the act or omission of the employer or principal unless it is proved that the act or omission did not occur in the course of the employment or agency.

53—Continuing offence

This clause provides for a continuing penalty to apply in relation to a person convicted of an offence against a provision of this measure in respect of a continuing act or omission and is in the usual terms.

54—General defence

This clause provides that it is a defence to a charge of an offence against this measure for the defendant to prove that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.

This clause, however, does not apply in relation to a person who is charged with an offence under clause 51.

55—Evidentiary

This clause provides for matters of an evidentiary nature in any proceedings for an offence against this measure.

56—Regulations

This clause makes provision for the making of regulations for the purposes of this measure.

Schedule 1—Related amendments, repeal and transitional provisions

The Schedule contains provisions that make related amendments to the Natural Resources Management Act 2004; repeal the South Eastern Water Conservation and Drainage Act 1992; and make provision for transitional arrangements.

Debate adjourned on motion of Mr Griffiths.


At 17:49 the house adjourned until Thursday 1 November 2012 at 10:30.


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