HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-24 Daily Xml
Contents
Pdf Xml

IRRIGATION BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (22:42): 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.

A review of the Irrigation Act 1994 and the Renmark Irrigation Trust Act 1936 has been undertaken to ensure South Australian irrigation infrastructure management practices are consistent with the requirements of key government policy directions and related legislation and to reflect contemporary management practices.

The two Acts establish governance frameworks to provide for the irrigation of land in government and private irrigation districts within rural South Australia. In recent decades the South Australian government has progressively removed itself from the administrative affairs of district irrigators, allowing service provision to be carried out by private irrigation trusts. Significant government investment in replacing irrigation infrastructure occurred with the transition from government to private trusts. Much of this infrastructure has an 80-year lifespan.

This Irrigation Bill 2009 repeals the Irrigation Act 1994 and a companion Bill repeals the Renmark Irrigation Trust Act 1936.

The Irrigation Bill 2009 includes provisions that will ensure compliance with key government policy directions including the National COAG Water Reform (1994), the National Water Initiative (2004), and the Inter-Governmental Agreement on Murray-Darling Basin Reform (2008). The Bill also ensures consistency with the Water Act 2007 (Commonwealth) in particular, those provisions relating to water charges and the removal of obstacles to permanent trade in water.

In addition, the Irrigation Bill 2009 provides for:

flexibility in the management of water licences so that a trust can choose by resolution to devolve its water licence to all members of the trust;

flexibility for individual members, enabling them to apply to the trust to transform their irrigation right into a water licence under the Natural Resources Management Act 2004; and

flexibility for existing trusts to continue the management of collectively owned irrigation infrastructure and/or drainage networks, and for new trusts to be established or amalgamated in the future.

Other key features of the proposed provisions in the Bill include:

removal of the concept of an irrigation district so that the operations and functions of an irrigation trust are based on service provision rather than land tenure;

emphasis on the power of an irrigation trust to enter into individual service agreements or contracts for the delivery of water or drainage services;

making explicit that an irrigation trust must not restrict permanent trade of water out of its irrigation network and that an irrigation trust must facilitate trade both within and out of a trust network, at the request of its members, and in accordance with the rules under the Water Act 2007;

providing that fees and charges for water, drainage and other services provided by a trust reflect the cost of providing, maintaining, managing and operating irrigation and drainage infrastructure, subject to the rules under the Water Act 2007; and

that an individual's entitlement to vote at a trust meeting is detennined by an individual's connection to a trust's supply and/or drainage infrastructure as a member of the trust, unless otherwise specified in any contractual arrangements established between the two parties.

The Bill also modernises, aligns and clarifies tenninology, updates penalties, updates other miscellaneous provisions, removes references to government irrigation districts, as they no longer exist, and makes a minor consequential amendment to the Natural Resources Management Act 2004.

As well as ensuring compliance with contemporary policy directions these provisions will enable those irrigators wishing to exit the industry in South Australia to trade their water. This is an important element in facilitating irrigator access to the Small Block Irrigator's Exit Grant Packages which have been made available by the Australian Government until 30 June 2009.

The measure is fundamental to ensuring that the management and operation of irrigation infrastructure in South Australia is well equipped to meet future challenges. The Government looks forward to the support of Parliament in the passing of this Bill.

I commend the Bill to the House.

Explanation of Clauses

Part I—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause sets out definitions for the purposes of the measure.

Part 2—Establishment, amalgamation and dissolution of trusts

Division 1—Establishment of trust 4—Application to establish a trust

This clause sets out the basis on which an application for the establishment of an irrigation trust may be made to the Minister and the form in which it must be made.

5—Establishment of trust

This clause makes provision for the granting of an application to establish an irrigation trust by the Minister by notice in the Gazette. The proposed section sets out the information that must be specified in the notice and provides that an irrigation trust established under proposed section 5 is a body corporate. The clause further provides for the vesting of property identified in an application for the establishment of an irrigation trust in the irrigation trust on its incorporation.

6—Rules

Proposed section 6 provides that an irrigation trust may have a set of rules relating to the membership, management or operations of the trust.

Subsection (2) provides that the rules of an irrigation trust—

must comply with any prescribed requirements; and

must not contain any provision that is contrary to or inconsistent with this Act; and

.may provide for the imposition and payment of application and other fees by members of the trust (including a fee to be paid by a person if or when the person ceases to be a member of the trust); and

may provide for or regulate the times at which irrigation water may be used; and

.may provide for other matters to facilitate—

the effective management of an irrigation or drainage system provided by the trust; or

the efficient supply, delivery or use of water provided by an irrigation system provided by the trust; or

the efficient drainage, management or disposal of water through a drainage system provided by the trust; and

may provide for such other matters as may be prescribed by the regulations or expedient for the purposes of the trust.

The provision sets out the basis on which the rules may be altered and makes it an offence for the trust to fail to furnish the Minister with an up-to-date copy of the rules of the trust, following the request of the Minister, within a period specified by the

Minister.

7—Manner in which contracts may be made

Proposed section 7 provides that contracts may be made by or on behalf of an irrigation trust as specified by the proposed section.

Proposed subsection (2) provides that a contract may be varied or rescinded by or on behalf of an irrigation trust in the same manner as it is authorised to be made.

Division 2—Members

8—Members (including presiding member and deputy presiding member)

Clause 8 establishes the membership of an irrigation trust. On the establishment of an irrigation trust, the persons who authorised the application for the establishment of the irrigation trust become members of the trust. Other persons who carry on the business of primary production may be admitted as members of the trust by resolution of the trust or as provided by the rules of the trust.

Proposed subsection (3) specifies the circumstances in which a person ceases to be a member of a trust.

The proposed section provides that a trust must have a presiding member and that it may have a deputy presiding member appointed from its membership. The provision sets out the manner in which a person may be removed from office and the basis on which a person ceases to hold office.

9—Rights and liabilities of membership

Proposed section 9 sets out the rights and liabilities of members of an irrigation trust.

10—Cailing of meetings

This clause sets out the manner in which a meeting of an irrigation trust may be called and imposes a requirement on the presiding member to call an annual general meeting of the trust.

11—Procedures at meetings

This clause specifies the procedures that must be observed at meetings of an irrigation trust.

12—Voting at meetings

Proposed section 12 establishes that a member of an irrigation trust is entitled to vote at meetings of the trust and that a member may nominate another person to attend and vote at meetings on his or her behalf.

Division 3—Amalgamation of trusts

13—Amalgamation of trusts

This clause provides for the amalgamation of 2 or more irrigation trusts by resolution of each trust and by application to the Minister.

Subsection (2) provides that a resolution must be supported by at least two-thirds of the number of votes cast at a meeting of the trust.

Proposed subsection (3) specifies the form in which application to the Minister for amalgamation as a single irrigation trust must be made and proposed subsection (4) sets out the basis on which the Minister may approve the application.

This clause requires the Minister to establish any new irrigation trust following amalgamation by notice in the Gazette.

Proposed subsection (7) provides that an irrigation trust established under the proposed section is a body corporate.

Proposed section 13 provides for the dissolution of any irrigation trust that was party to the application for amalgamation, the transfer of any property of the amalgamating trusts to the irrigation trust formed by the amalgamation and the transfer of the rights and liabilities of the trusts that were party to the amalgamation to the new irrigation trust on the date on which the trust is established.

Division 4—Dissolution of trusts

14—Dissolution on application

This clause provides for the dissolution of an irrigation trust by application to the Minister. The application to the Minister must be made by the members of the trust and the decision to dissolve must be made pursuant to a resolution of the trust that must be supported by 80% or more of the number of votes cast at a meeting of the trust.

15—Dissolution on Minister's initiative

Proposed section 15 provides for the dissolution of an irrigation trust by the Minister if—

in the Minister's opinion the trust—

is unable to carry out its functions properly because of disagreements between its members; or

is not carrying out its functions properly for any other reason; or

is not properly maintaining any irrigation and drainage systems provided by the trust; or

the trust is unable to pay its debts as they fall due; or

the trust has failed to comply with a provision of the Act; or

the Minister is of the opinion that it is just and equitable that the trust be wound up in the circumstances of the particular case.

At the expiration of 3 months after service by the Minister of a notice of dissolution of the trust—

the trust is dissolved; and

any water licence held by the trust—

will vest in 1 or more persons determined by the Minister; or

will be dealt with in some other manner determined or approved by the Minister,

subject to the operation of the Natural Resources Management Act 2004.

16—Disposal of property on dissolution

This clause provides for the vesting of the property, rights and liabilities of an irrigation trust on its dissolution.

Part 3—Management of trusts

Division 1—Board of management

17—Board of management

This clause provides that an irrigation trust may appoint a board of management of the trust to carry out the day to day operations of the trust and to manage its general affairs.

18—Delegation

This clause provides a power of delegation by a board of management in respect of a function or power of the board to a member of the board or to another person or body.

Division 2—Accounts and audit

19—Accounts to be kept

Proposed section 19 requires an irrigation trust to cause proper accounts to be kept of its financial affairs.

20—Preparation of financial statements

This clause provides that an irrigation trust must, as soon as practicable after the end of each financial year, cause financial statements in respect of that financial year to be prepared in accordance with recognised accounting standards and cause the statements to be audited.

The proposed section makes it an offence for a person—

to refuse or fail to allow an auditor access, for the purposes of an audit, to any accounts or accounting records of the trust in his or her custody or control; or

refuse or fail to give any information or explanation as and when required by an auditor; or

otherwise hinder, obstruct or delay an auditor in the exercise or performance of a power or function of the auditor.

Proposed subsection (6) requires an auditor to prepare a report on the audit on the audit's completion.

21—Accounts etc to be laid before annual general meeting

This clause requires that at each annual general meeting of an irrigation trust, the trust must lay before the meeting a copy of the audited financial statements of the trust for the previous financial year, a copy of the auditors report and a report prepared by the trust on the operations of the trust in the previous financial year.

Proposed subsection (2) requires that at the request of the Minister or any member of the trust, the trust must provide the Minister or member with a copy of the audited financial statements, the auditors report and the report prepared by the trust in respect of the financial year to which the request relates.

Division 3—Committees

22—Committees

Proposed section 22 provides that an irrigation trust may establish committees of members to advise the trust on any aspects of its functions.

Proposed subsection (2) provides that a board of management of an irrigation trust may establish committees to advise the board on any aspects of its functions.

Part 4—Functions and powers of irrigation trusts

Division 1—Functions of trusts

23—Functions of trusts

This clause provides that an irrigation trust has the following functions:

to provide, maintain, operate and manage an irrigation system or systems;

to provide, maintain, operate and manage a drainage system or systems;

such other functions as are specified or prescribed by or under this or any other Act.

Proposed subsection (2) provides that an irrigation trust may operate on the basis that some or all of the water supplied through an irrigation system managed by the trust will be supplied under a water licence held by the trust or on the basis that the trust will deliver water to members of the trust for the purposes of water licences held by the members.

However, an irrigation trust established after the commencement of this Act must operate on the basis that the water licence is held by the members and not the trust itself.

Proposed subsection (5) provides that an irrigation trust may set terms and conditions associated with the use of any irrigation system or drainage system provided by the trust and the supply or delivery of water by the trust.

Proposed subsection (6) ensures that when determining the terms and conditions on which water is supplied or delivered to, or drained from, land or in holding or dealing with any water licence the trust must comply with this Act as well as other specified requirements. An irrigation trust is always required to take all reasonable steps to ensure that it operates in a financially responsible manner.

Division 2—Powers of trusts

24—Powers of trusts

This clause sets out the powers that an irrigation trust may exercise in order to carry out its functions. Such powers include the power to construct facilities for holding water, install and operate pumps, control the flow of water in an irrigation or drainage channel and to acquire land.

25—Further powers of trusts

In addition to the powers conferred on an irrigation trust by proposed section 24, an irrigation trust may, pursuant to an agreement with the owner or occupier of any serviced property, construct or extend an irrigation system or a drainage system on the property for the distribution or drainage of water.

Proposed subsection (2) provides that a trust may, in order to assist its members, purchase irrigation equipment, components and tools for resale to its members.

26—Delivery of water or supply of drainage to other persons

This clause allows an irrigation trust to enter into an agreement with a person who is not a member of the trust to deliver water for the purpose of irrigating land or to drain water from land by means of an irrigation system or drainage system provided and managed by the trust.

27—Supply or delivery of water for other purposes

This clause provides that in addition to supplying or delivering water for other purposes, an irrigation trust may supply or deliver water for domestic or other purposes by agreement other than if a supply of water for those purposes is available under the Waterworks Act 1932.

28—Drainage of other water

This clause enables an irrigation trust to drain water from land that is not irrigation water.

Division 3—Irrigation rights, water entitlements and trading

29—Fixing of irrigation rights

Proposed section 29 applies in relation to an irrigation trust that holds 1 or more water licences for the purposes of supplying water to its members.

Proposed subsection (2) provides that an irrigation trust to which the proposed section applies must fix an entitlement (an irrigation right) in respect of each member of the trust who is to receive water on account of a water licence held by the trust. The proposed section further provides that an irrigation right will be fixed by resolution of the trust and that it may be expressed as a volume or units.

30—Surrender or transfer of water available under irrigation rights

This clause provides for the surrender of water available under an irrigation right held by a member of a trust to the trust and provides for the transfer of water available under an irrigation right by a member of a trust to another member of the trust or by the trust acting at the request of a member to a person who is not a member of the trust.

Proposed subsection (2) provides, that if a member of the trust wishes to surrender water, the trust must take reasonable steps to come to a reasonable agreement on a sum of money or other consideration to be paid. A member must not transfer water to another member of the trust without first notifying the trust of the proposed transfer in accordance with any requirements specified by the trust and a request by a member of the trust to transfer water to a person who is not a member of the trust must be complied with within a reasonable time.

31—Surrender or transfer of irrigation rights

This clause provides that an irrigation right held by a member of an irrigation trust is capable of being—

surrendered by the relevant member to the trust for such sum of money or other consideration as may be agreed between the trust and the relevant member;

transferred by the relevant member to another member of the trust for such sum of money or other consideration as may be agreed between the members.

Proposed subsection (2) requires that the trust must make reasonable steps to come to a reasonable agreement on a sum of money or other consideration to be paid if a relevant member wishes to surrender an irrigation right to the trust.

A transfer of an irrigation right by a member to another member of the trust under this section must not occur without the member first notifying the trust of the proposed transfer in accordance with any requirements specified by the trust.

32—Transformation of irrigation rights

This clause enables an irrigation right held by a member of a trust to be permanently transformed into a water licence to be held by the member if—

the member applies to the trust for the transformation of the irrigation right in accordance with any requirements specified by the trust (including as to the payment of a specified application fee); and

the member provides any security required by the trust; and

the transformation so as to create a water licence held by the member is able to take effect under the Natural Resources Management Act 2004 and the member, in seeking the water licence, complies with any relevant requirement under that Act.

Proposed subsection (4) provides that if a water licence is to be issued on account of an application under this section—

an entitlement to an allocation of water that corresponds to the irrigation right I held by the relevant member will arise in connection with the licence; and

a variation must be made to the water licence held by the trust, and to any other related entitlement,

subject to and in accordance with the Natural Resources Management Act 2004 (and subject to taking into account the water available under the provisions of that Act).

33—Trust may determine to devolve water licence

This clause enables an irrigation trust to transform irrigation rights held by members of the trust into water licences held by the respective members.

34—Promotion of water trades

This clause provides that an irrigation trust must not unreasonably restrict or prevent any activity contemplated by this or any other Act (including the Water Act 2007 of the Commonwealth) that will support the efficiency and scope of water trades.

Division 4—other matters

35—Power to restrict supply or to reduce water made available by trust

This clause specifies the circumstances in which an irrigation trust may restrict or suspend the supply or delivery of water or reduce the amount of water available under an irrigation right.

36—Power of delegation

This clause provides that an irrigation trust may delegate a function or power of the trust under this Act.

37—Appointment of authorised officers

Proposed section 37 provides that an irrigation trust may appoint a person to be an authorised officer under this Act.

38—Powers of authorised officers

Proposed section 38 specifies the powers that may be exercised by an authorised officer in relation to the operations of the irrigation trust by whom he or she has been appointed.

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

This clause makes it an offence for a person to—

without reasonable excuse, hinder or obstruct a person acting on behalf of a trust or an authorised officer;

use abusive, threatening or insulting language to a person acting on behalf of a trust or an authorised officer;

fail to answer a question put by an authorised officer to the best of his or her knowledge, information or belief;

falsely represent by words or conduct, that he or she is an authorised officer.

Part 5.—Protection and facilitation of systems

40—Protection and facilitation of systems

Proposed section 40 makes it an offence to contravene or fail to comply with a provision of the proposed section or of a notice served under proposed subsection (4) or (5).

Proposed subsection (1) provides that a person must not—

connect a channel or pipe to an irrigation or drainage system of an irrigation trust; or

place a structure or install equipment in, over or immediately adjacent to a channel or pipe connected to an irrigation trust; or

supply water supplied or delivered to him or her by an irrigation trust under this Act to any other person,

unless he or she does so at the direction, or with the approval, of the trust.

Proposed subsection (2) provides that a person must not use a method of distributing irrigation water in a manner that is inconsistent with any determination or rule of an irrigation trust.

Proposed subsection (3) provides that a person who is a landowner under this Act—

must ensure that irrigation water does not drain or otherwise escape onto or into adjoining land so as to cause a nuisance to the adjoining landowner;

must maintain, and when necessary repair or replace an irrigation or drainage system provided by the landowner;

must not block or impede the flow of water in any part of an irrigation or drainage system except at the direction, or with the approval, of the irrigation trust;

must, when necessary, clear channels and pipes of an irrigation or drainage system provided by the landowner;

must ensure that channels and pipes on his or her land, including those forming part of an irrigation or drainage system provided by an irrigation trust, are protected from damage that is reasonably foreseeable.

Proposed subsection (4) provides the trust with the power under specified circumstances to issue a notice to landowners directing the landowner—

to—

construct or erect channels, embankments, structures, tanks, ponds, dams or other facilities for holding water; or

lay pipes; or

install fittings or pumps or other equipment,

on his or her land; or

to widen or deepen channels forming part of an irrigation or drainage system provided by the landowner, to install fittings or equipment for or in relation to irrigating the land, or to carry out any other work on the land; or

to provide a barrier that is impervious to water on the sides and bed of a channel forming part of an irrigation or drainage system provided by the landowner; or

to undertake such other act or activity as is specified in the notice.

Proposed subsection (5) enables the trust to direct the landowner—

to erect fences to keep stock or other animals away from channels or pipes on the land;

to comply with the requirements of 1 or more of the other provisions of this section.

If a person fails to comply with a notice issued under this section, proposed subsection (7) provides the trust with the power to enter the relevant land and take the action specified in the notice and such other action as the trust considers appropriate in the circumstances and the trust's costs will be a debt due by the person to the trust.

Part 6—Charges for irrigation and drainage

Division 1—Declaration of charges

41—Charges

This clause allows an irrigation trust to impose a water supply charge or charges in relation to the supply or delivery of water (or both) under this Act and impose a drainage charge or charges in relation to the drainage or disposal of water (or both) under this Act.

42—Declaration of water supply charges

An irrigation trust may, in respect of a financial year or part of a financial year, by notice published in a local newspaper, declare a water supply charge or water supply charges based on a number of specified factors.

The clause allows the trust to declare different charges—

in respect of different areas;

for water supplied for irrigation purposes, domestic purposes or other purposes;

depending on the quality of the water supplied or delivered.

43—Minimum amount

This clause provides that an irrigation trust may declare a minimum amount that is payable in respect of a water supply charge and the payment of the minimum amount must be credited against the water supply charge.

44—Drainage charge

Proposed section 44 provides that an irrigation trust may, in respect of a financial year or part of a financial year by notice published in a local newspaper, declare a drainage charge based on the area of land irrigated or drained or on the basis of the volume of water supplied or delivered for irrigating the land.

Proposed subsection (2) provides that a trust may exempt an owner and occupier of land from payment of drainage charges if water does not drain from the land into the drainage system provided by the trust or if the quantity of water that drains into the system is negligible. A drainage charge may be declared after the period to which it relates has commenced.

45—Determination of area for charging purposes

Proposed section 45 provides that for the purpose of calculating the amount of a water supply charge or a drainage charge based on the area of land, the area of the land will be determined to the nearest one—tenth of a hectare (0.05 of a hectare being increased to the next one-tenth of a hectare).

46— Interest

This clause provides that an irrigation trust may, in fixing a water supply charge or a drainage charge, declare a rate of interest that will be applied if a charge is not paid within a period specified by the trust.

47—Notice of resolution for charges

Proposed section 47 specifies that an irrigation trust must fix the factors on which water supply and drainage charges are based and the amount of those charges by resolution of which 21 days notice has been given.

48—Minister's approval required

This clause proves that if a trust is indebted to the Crown, the Minister or 1 or more other agencies or instrumentalities of the Crown in an amount that exceeds $50,000 or in 2 or more amounts that together exceed $50,000, the trust must not—

declare a water supply charge or drainage charge; or

fix a rate of interest for the late payment of charges,

without first obtaining the Minister's approval. However, non—compliance with subsection (1) does not affect the validity of a charge or rate of interest declared or fixed by a trust.

49—Related matters

Proposed subsection (1) provides that nothing in this Division prevents an irrigation trust from entering into an agreement with a person for the supply or delivery of water, or the drainage of land, for a cost or at a rate fixed or determined under the agreement (rather than by the imposition of a charge under this Division). To avoid doubt, the preceding sections of this Division do not apply in relation to an amount payable under an agreement under proposed subsection (1).

Proposed subsection (3) provides that an irrigation trust must, in acting under this Division, ensure that it complies with any requirements imposed by or under the Water Act 2007 of the Commonwealth.

Division 2—Recovery of charges 50—Liability for charges

Proposed section 50 identifies the persons who are jointly and severally liable for the payment of charges and interest on charges.

Proposed subsection (2) states that notice of the amount payable by way of charges, fixing the date on which the amount becomes payable, must be served on the owner or occupier of the land in respect of which the charges are payable.

However, the section operates subject to any Commonwealth market rules and the provisions of any agreement between the trust and a person for the supply or delivery of water, or the drainage of land.

51—Recovery rights

This clause provides for the recovery of charges and interest on charges as a charge on the land in respect of which water is supplied or delivered, or is drained, in accordance with a scheme established by the regulations. In addition, any charges that are not paid in accordance with a notice under proposed section 50, together with any interest, may be recovered by the irrigation trust as a debt from a person who is liable for the payment of the charges.

Proposed subsection (4) provides that any action to recover any charges (and interest) as a debt does not prejudice any action to recover any charges (and interest) as a charge on land, and vice versa, but any amount sought to be recovered under 1 right must be adjusted to take into account any amount actually recovered under the other right.

52—Sale of land for non-payment of charges

Proposed section 52 provides for the sale of land by the irrigation trust if charges, or interest on charges, are a charge on land and have been unpaid for 1 year or more.

Proposed subsection (2) requires that notice must be served on the owner and occupier of the land—

stating the period for which the charges or interest have been in arrears; and

stating the amount of the total liability for charges and interest presently outstanding in relation to the land; and

stating that if that amount is not paid in full within 1 month of service of the notice (or such longer time as the trust may allow), the trust intends to sell the land for non-payment of the charges or interest.

Proposed subsection (9) states that any money received by the trust in respect of the sale of land under this section will be applied as follows:

firstly-in paying the costs of the sale and any other costs incurred in proceeding under this section;

secondly-in discharging the liability for charges and interest and any other liabilities to the trust in respect of the land;

thirdly-in discharging any liability to the Crown for rates, charges or taxes, or any prescribed liability to the Crown in respect of the land;

fourthly-in discharging any liabilities secured by registered mortgages, encumbrances or charges;

fifthly-in discharging any other mortgages, encumbrances and charges of which the trust has notice;

sixthly-in payment to the owner of the land.

If land is sold by a trust in pursuance of the proposed section, an instrument of transfer under the common seal of the trust will operate to vest title to the land in the purchaser.

Proposed subsection (13) provides that an instrument of transfer passing title to land in pursuance of a sale under this section must, when lodged with the Registrar-General for registration or enrolment, be accompanied by a statutory declaration made by the presiding member of the trust stating that the requirements of this section in relation to the sale of the land have been observed.

53—Trust may remit interest and discount charges

This clause allows the trust to remit the whole, or part, of the amount of any interest payable to the trust and to discount charges to encourage early payment of the charges.

Part 7—Financial provisions

54—Trust's power to borrow etc

This clause allows an irrigation trust to borrow money or take advantage of any other form of financial accommodation.

The trust may also charge the whole or any part of its property (including its revenue arising from water supply or drainage charges) by debenture, mortgage or bill of sale or in any other manner or enter into arrangements for the provision of guarantees or indemnities, in order to provide security for any money borrowed, or other financial accommodation received, by it.

Proposed subsection (3) gives the Supreme Court the power to—

direct the trust to appropriate a specified portion of its revenue to the satisfaction of its obligations under the debenture; or

direct the trust to raise a specified amount by way of charges and direct that the amount raised be applied towards satisfaction of the trust's obligations under the debenture; and

give such incidental or ancillary directions as may be necessary or desirable,

on the application of a creditor or a trustee for debenture holders, if a trust defaults in carrying out its obligations under a debenture charged on revenue arising from water supply or drainage charges.

Part 8—Appeals

55—Appeals

This clause provides a right of appeal to the Environment, Resources and Development Court against a decision of an irrigation trust—

in relation to a decision to discontinue a membership of a trust under proposed section 8(3)(a)(ii); or

in relation to the fixing of an irrigation right in respect of the person; or

directing the appellant to undertake an act or activity under proposed Part 5; or

in relation to any other matter of a class prescribed by the regulations for the purposes of this section.

Proposed subsection (3) provides that the Court on appeal may—

affirm or vary the decision appealed against or substitute any decision that should have been made in the first instance;

remit the subject matter of the appeal to the trust for further consideration;

make such incidental or ancillary order as the Court considers is necessary or desirable.

56—Decision may be suspended pending appeal

This clause allows an irrigation trust or the Court to suspend the operation of the decision until the determination of the appeal.

57—Appeal against proposal to dissolve trust

This clause allows an irrigation trust or a member of an irrigation trust to appeal to the Environment, Resources and Development Court against the Minister's proposal to dissolve the trust under proposed section 15.

Proposed subsection (3) provides that on an appeal the Court may—

do 1 or more of the following:

direct the Minister to withdraw the notice of dissolution;

give the Minister such other directions as the Court thinks fit;

give the trust such directions as the Court thinks fit;

make such incidental or ancillary order as the Court considers is necessary or desirable; or

refuse to take any action in the matter.

58—Constitution of Environment, Resources and Development Court

When exercising its jurisdiction under this Act, the Environment, Resources and Development Court is constituted as follows:

the Court may be constituted in a manner provided by the Environment, Resources and Development Court Act 1993 or may, if the Senior Judge of the Court so determines, be constituted of a Judge and 1 commissioner;

the provisions of the Environment, Resources and Development Court .Act 1993 apply in relation to the Court constituted of a Judge and 1 commissioner in the same way as in relation to a full bench of the Court;

the Court may not be constituted of or include a commissioner unless-

in a case where only 1 commissioner is to sit (whether alone or with another member or members of the Court)-the commissioner; or

in any other case—at least 1 commissioner,

is a commissioner who has been specifically designated by the Governor as a person who has expertise in irrigated farming or management of water resources.

Part 9—Miscellaneous

59—Protection from liability

This clause provides immunity from civil liability for an honest act or omission in the . exercise or discharge, or purported exercise or discharge, by the person or by an irrigation trust, board of management or committee of which he or she is a member, of a power, function or duty under this Act.

60—Division of land

This clause provides that the owner of land where an irrigation or drainage system of an irrigation trust is situated may apply to the trust for its consent to divide the land.

However, land may be divided without the consent of the trust but in that event the following provisions apply:

the trust has no obligation to extend any irrigation or drainage system to a new allotment;

a new allotment cannot be connected to an irrigation or drainage system provided by the trust without the trust's approval;

the division will not affect any irrigation right (unless the holder of the irrigation right applies to the trust for a new right to be issued and an appropriate adjustment made to the terms of the irrigation right);

the trust may refuse to supply water to an allotment created by the division if the water will pass through another allotment created by the division or the water will be drained through another allotment created by the division.

61—False or misleading information

It is an offence to furnish information to an irrigation trust that is false or misleading in a material particular.

62—Protection of irrigation system etc

This clause makes it an offence for a person to, without lawful authority, interfere with any part of an irrigation or drainage system or with any property of an irrigation trust used in, or in connection with, the irrigation or drainage of land.

63—Unauthorised use of water

This clause makes it an offence for a person to take water from the irrigation or drainage system of an irrigation trust without being authorised to do so or use water taken from an irrigation system for an unauthorised purpose.

64—0ffences by bodies corporate

This clause provides that if a body corporate is guilty of an offence, each member of the governing body, and the manager, of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence.

65—General defence

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

66—Proceedings for offences

This clause states that proceedings for an offence against this Act must be commenced—

in the case of an expiable offence-within the time limits prescribed for expiable offences by the Summary Procedure Act 1921;

in any other case-within 2 years of the date on which the offence is alleged to have been committed.

67—Evidentiary provisions

This provision provides evidentiary aids for proceedings.

68—Service etc of notices

This clause sets out the methods by which notices and other documents may be served.

69—Excluded matters

This clause provides that the following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation to which Part 1.IA of that Act applies:

.a trust;

.an act or omission of any person, body or other entity in relation to a trust.

70—Regulations

This clause provides general regulation making power.

Schedule 1—Related amendments, repeals and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This Schedule makes related amendments to the Natural Resources Management Act 2004, repeals the Irrigation Act 1994 and contains transitional arrangements for the implementation of the measure.

Part 2—Amendment of Natural Resources Management Act 2004

2—Insertion of Chapter 7 Part SA

Part 5A—Interaction with Irrigation Acts

169A—Interaction with Irrigation Act 2009

Part 3—Repeal of Act

3—Repeal of Act

Part 4—Transitional provisions

4—Interpretation

5—Continuation of trusts

6—Presiding member and deputy presiding member

7—Boards of management

8—Resolutions

9—Voting at meetings

10—Irrigation rights

11—Charges and rates

12—Disposal of property on dissolution-special arrangements

13—Other provisions

Debate adjourned on motion of Hon. D.W. Ridgway.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT