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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-24 Daily Xml
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RENMARK IRRIGATION TRUST 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) (22:43): 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 Irrigation Act 1994 and the Renmark Irrigation Trust Act 1936 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.

The Renmark Irrigation Trust Bill 2009 repeals the RenmarkIrrigation Trust Act 1936.

The Renmark Irrigation Trust Bill 2009 establishes the powers and functions of the Renmark Irrigation Trust which correspond to those of an irrigation trust under the Irrigation Bill 2009. The proposed provisions closely align models for the management of irrigation infrastructure systems within South Australia.

The Renmark Irrigation Trust Bill 2009 contains additional provisions to:

change the composition of the Renmark Irrigation Trust so that all current ratepayers (approximately 700 people) comprise the Trust. Currently the Renmark Irrigation Trust comprises 7 members and those in receipt of the Trust's services are deemed to be ratepayers;

establish a Board of Directors to oversee the day-to-day operations of the Renmark Irrigation Trust. The current Trust of 7 members will be transformed into the Board of Directors as a transitional provision to ensure continuity in the operations and management of the Trust;

provide specific provisions pertaining to the functions and operations of a Board of Directors; and

continue specific powers of the Trust.

The Renmark Irrigation Trust 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.

The Renmark Irrigation Trust Bill provides for:

flexibility in the management of water licences so that the 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;

flexibility for the Trust to continue the management of collectively owned irrigation infrastructure and/or drainage networks;

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

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

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

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

The Bill also modernises, aligns and clarifies terminology, updates penalties and other miscellaneous provisions, 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 1—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—Constitution of trust

Division 1—Continuation of trust

4—Continuation of trust

This clause provides that the Renmark Irrigation Trust continues as the Renmark Irrigation Trust

5—Rules

Proposed section 5 provides that the trust may have a set of rules relating to the membership, management or operations of the trust.

Proposed subsection (2) provides that a set of rules of the 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.

This clause specifies the manner in which the rules may be altered.

6—Manner in which contracts may be made

Proposed section 6 provides that contracts may be made by or on behalf of the trust as specified by the proposed section.

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

Division 2—Members

7—Members

This clause provides that the persons who are members of the trust on the commencement of this Act continue as members of the trust and 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 clause makes provision for a presiding member and deputy presiding member of the trust.

8—Rights and liabilities of membership

Proposed section 8 sets out the rights and liabilities of members of the trust.

9—Calling of meetings

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

10—Procedures at meetings

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

11—Voting at meetings

Proposed section 11 establishes that a member of the 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.

Part 3—Management of trust

Division 1—Board of management

12—Board of management

This clause provides that the trust will appoint a board of management of the trust to carry out the day to day operations of the trust and to manage its general affairs and that the board will consist of 7 members of the trust (who will be called directors).

13—Appointment of directors, term of office and remuneration

This clause provides that a director will be elected at the annual general meeting of the trust and that a director will hold office for a term of 2 years (with each period between the annual general meetings of the trust to be taken to be 1 year) and, at the expiration of a term of office, will be eligible for re-election.

This clause specifies when a member of the trust is not eligible for election as a director and when the office of a director becomes vacant.

14—Disclosure of interest

This clause provides that a director who has a direct or indirect personal or pecuniary interest in a matter under consideration by the board—

must, as soon as he or she becomes aware of the interest, disclose the nature and extent of the interest to the board; and

must not take part in any deliberations or decision of the board on the matter and must be absent from the room when any such deliberations are taking place or decision is being made.

15—Members' duties of honesty, care and diligence

This clause imposes certain duties on directors and makes it an offence for a director to breach a duty imposed by this clause.

16—Validity of acts and immunity of members

This clause provides that an act or proceeding of the board is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a director.

This clause provides immunity from civil liability for a director for an honest act or omission in the performance or exercise, or purported performance or exercise, of the director's or the board's functions, duties or powers under this or any other Act.

17—Presiding member and deputy presiding member

The proposed section provides that the directors must appoint a presiding member of the board (and therefore of the trust) and that the directors may appoint a deputy presiding member of the board (and therefore of the trust). 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.

18—Proceedings

This clause specifies the procedures that must be observed at meetings of the board.

19—Delegation

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

Division 2—Accounts and audit

20—Accounts to be kept

Proposed section 20 requires the trust to cause proper accounts to be kept of its financial affairs.

21—Preparation of financial statements

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

Proposed subsection (5) provides that an officer or employee of the trust or other person must not, without lawful excuse—

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.

22—Accounts etc to be laid before annual general meeting

Proposed section 22 provides that at each annual general meeting of the trust, the trust must lay before the meeting a copy of the audited financial statements of the trust for the previous financial year and 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) states 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

23—Committees

Proposed subsection (1) provides that the trust may establish committees (which may, but need not, consist of or include members of the trust) to advise the trust on any aspects of its functions, or to assist it in the performance of its functions.

Proposed subsection (2) provides that the board of management may establish committees (which may, but need not, consist of or include members of the board of management) to advise the board on any aspects of its functions, or to assist it in the performance of its functions.

Part 4—Functions and powers of trust

Division 1—Functions of trust

24—Functions of trust

This clause provides that the 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 function as are specified or prescribed by or under this or any other Act.

Proposed subsection (2) provides that the 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.

Proposed subsection (4) provides that the 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 (5) 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. The trust is always required to take all reasonable steps to ensure that it operates in a financially responsible manner.

Division 2—Powers of trust

25—Powers of trust

This clause sets out the powers that the 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.

26—Further powers of trust

In addition to the powers conferred on the trust by proposed section 25, the trust may, pursuant to an agreement with the owner or occupier of any serviced property, construct or extend an irrigation system or a drainage system on the property for the distribution or drainage of water.

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

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

This clause allows the 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.

28—Supply or delivery of water for other purposes

This clause provides that in addition to supplying or delivering water for other purposes the 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.

29—Drainage of other water

This clause provides that in addition to draining irrigation water, the trust may drain any other water from land.

Division 3—Irrigation rights, water entitlements and trading

30—Fixing of irrigation rights

Proposed section 30 applies if the trust holds 1 or more water licences for the purposes of supplying water to its members.

Proposed subsection (2) provides that if this section applies, the trust must fix an entitlement (an irrigation right) in respect of each member of the trust who is to receive water on account of a water licence held by the trust. 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.

31—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 the 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 under that subsection. 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.

32—Surrender or transfer of irrigation rights

This clause provides that an irrigation right held by a member of the 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.

33—Transformation of irrigation rights

This clause enables an irrigation right held by a member of the 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 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).

34—Trust may determine to devolve water licence

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

35—Promotion of water trades

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

Division 4—Other matters

36—Power to restrict supply or to reduce water made available

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

37—Power of delegation

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

38—Appointment of authorised officers

Proposed section 38 provides that the trust may appoint a person to be an authorised officer under this Act.

39—Powers of authorised officers

Proposed section 39 specifies the powers that may be exercised by an authorised officer in relation to the operations of the trust by whom he or she has been appointed.

40—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 the trust or an authorised officer;

use abusive, threatening or insulting language to a person acting on behalf of the 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

41—Protection and facilitation of systems

Proposed section 41 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 the trust; or

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

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

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

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 the 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 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 the 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

42—Charges

This clause allows the 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.

43—Declaration of water supply charges

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

Proposed subsection (3) provides that in the case of water supplied for irrigation purposes, the trust may declare a basic charge in respect of a specific amount of water supplied or delivered under an irrigation right or water licence and a further charge, or series of charges, that increase as the volume of water supplied increases over that amount.

44—Minimum amount

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

45—Drainage charge

Proposed section 45 provides that the trust may, in respect of a financial year or part of a financial year by notice published in a local newspaper, declare a drainage charge based on the area of land irrigated or drained or on the basis of the volume of water supplied or delivered for irrigating the land.

Proposed subsection (2) provides that the trust may exempt an owner and occupier of land from payment of drainage charges if water does not drain from the land into the drainage system provided by the trust or if the quantity of water that drains into the system is negligible.

46—Special rate

Proposed section 46 provides that the trust may, with the approval of the Minister, in respect of a financial year or part of a financial year, by notice published in a local newspaper, declare a special rate or special rates based on 1, or any combination of 2 or more, of the factors that a water supply charge or drainage charge would be based.

47—Determination of area for charging purposes

Proposed section 47 provides that for the purpose of calculating the amount of a water supply charge, a drainage charge or special rate based on the area of land, the area of the land will be determined to the nearest one-tenth of a hectare (0.05 of a hectare being increased to the next one-tenth of a hectare).

48—Interest

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

49—Notice of resolution for charges

This clause provides that the trust must fix the factors on which water supply charges, drainage charges and special rates are based and the amount of those charges or rates by resolution of which 21 days notice has been given.

50—Minister's approval required

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

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.

51—Related matters

Proposed section 51 provides that nothing in this Division prevents the trust from entering into an agreement with a person for the supply or delivery of water, or the drainage of land, for a cost or at a rate fixed or determined under the agreement (rather than by the imposition of a charge or rate under this Division).

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

Division 2—Recovery of charges

52—Liability for charges

This clause 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 or rates, fixing the date on which the amount becomes payable, must be served on the owner or occupier of the land in respect of which the charges or rates are payable.

However, the section operates subject to—

any Commonwealth water 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.

53—Recovery rights

This clause provides that any charges or rates and any accrued interest will be a charge on the land in respect of which water is supplied or delivered, or is drained, in accordance with a scheme established by the regulations. In addition, any charges or rates that are not paid in accordance with a notice under proposed section 52, together with any interest, may be recovered by the trust as a debt from a person who is liable for the payment of the charges or rates.

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 or rates (and interest) as a charge on land, and vice versa, but any amount sought to be recovered under 1 right must be adjusted to take into account any amount actually recovered under the other right.

54—Sale of land for non-payment of charges

Proposed section 54 provides for the sale of land by the trust if charges or rates, or interest on charges or rates, 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 rates or interest have been in arrears; and

stating the amount of the total liability for charges or rates 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 rates 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 or rates 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 the trust in pursuance of proposed section 54, 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.

55—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 or rates.

Part 7—Financial provisions

56—Trust's power to borrow etc

This clause provides that the trust may 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 charges, drainage charges or rates) by debenture, mortgage or bill of sale or in any other manner or enter into arrangements for the provision of guarantees or indemnities.

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 or rates (subject to any other requirement under this Act), and direct that the amount raised be applied towards satisfaction of the trust's obligations under the debenture; and

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 the trust defaults in carrying out its obligations under a debenture charged on revenue arising from water supply or drainage charges.

Part 8—Dissolution of trust

57—Dissolution on application

This clause provides for the dissolution of the 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 per cent or more of the number of votes cast at a meeting of the trust.

58—Dissolution on Minister's initiative

Proposed section 58 provides for the dissolution of the 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

— without limiting the generality of proposed subparagraphs (i) and (ii), 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 this 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 of the notice under proposed subsection (4)—

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.

59—Disposal of property on dissolution

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

Part 9—Appeals

60—Appeals

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

in relation to a decision to discontinue a membership of the trust under proposed section 73(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 on an appeal the Court 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.

61—Decision may be suspended pending appeal

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

62—Appeal against proposal to dissolve trust

This clause allows the trust or a member of the trust to appeal to the Environment, Resources and Development Court against the Minister's proposal to dissolve the trust under proposed section 58.

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.

63—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 10—Miscellaneous

64—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 the trust, board of management or committee of which he or she is a member, of a power, function or duty under this Act.

65—Division of land

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

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.

66—False or misleading information

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

67—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 the trust used in, or in connection with, the irrigation or drainage of land.

68—Unauthorised use of water

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

69—Offences 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.

70—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.

71—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.

72—Evidentiary provisions

This provision provides evidentiary aids for proceedings.

73—Service etc of notices

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

74—Certain land vested in trust in fee simple

Proposed section 74 provides that the piece of land delineated and coloured blue in the plan signed J.H. McNamara, Surveyor-General, and deposited in the Land Office of 5 August 1936, and numbered 324, and therein marked 'X', will, so far as that land has not been alienated by the trust, continue to be vested in the trust, to be held by the trust in fee simple under this Act.

75—Power of trust to construct infrastructure across roads

Proposed section 75 provides that the trust may, in connection with the construction or maintenance of any drainage or irrigation system provided (or to be provided) by the trust—

cut any road (including any road vested in or under the control of a council);

lay any pipes or other forms of infrastructure under any such road, or construct any culvert, drain or other works along or adjacent to any such road;

take any steps necessary or convenient in connection with proposed paragraph (a) or (b).

76—Excluded matters

This clause ensures that the trust and an act or omission of any person, body or other entity in relation to the trust are excluded matters for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation to which Part 1.1A of that Act applies.

77—Regulations

This clause provides general regulation making power.

78—Expiry of Act

If the trust has been dissolved under proposed Part 8, the Governor may, if or when it appears to the Governor to be appropriate to do so, fix by proclamation a day on which this Act will expire on the account of the dissolution of the trust.

Schedule 1—Related amendments, repeals and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This Schedule makes related amendments to the Natural Resources Management Act 2004, repeals the Renmark Irrigation Trust Act 1936 and contains transitional arrangements for the implementation of the measure.

Part 2—Amendment of Natural Resources Management Act 2004

2—Insertion of section 169B

169B—Interaction with Renmark Irrigation Trust Act 2009

Part 3—Repeal of Act

3—Repeal of Act

Part 4—Transitional provisions

4—Interpretation

5—Members

6—Presiding member and deputy presiding member

7—Directors

8—Resolutions

9—Irrigation rights

10—Charges and rates

11—Other provisions

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


At 22:44 the council adjourned until Wednesday 25 March 2009 at 14:15.


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