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Legal Compliance and Information Manual Victorian Water Industry

October 2012

Victorian Water Industry

Legal Compliance and Information Manual October 2012

Legal Compliance and Information Manual for the Victorian Water Industry – October 2012

This Compliance Manual is subject to copyright and may not be reproduced either in whole or in part without the written consent of the Victorian Water Industry Association.

Requests and inquiries concerning reproduction and rights should be addressed to:

The Chief Executive Officer Victorian Water Industry Association Inc Suite 1 Level 6 2 Collins Street MELBOURNE Victoria 3000

The update service is provided by:

Russell Kennedy Solicitors (Andrew Sherman – Principal/Astrid Di Carlo – Special Counsel) Level 12 469 La Trobe Street MELBOURNE Victoria 3000

For subscription to the updates or purchase of additional copies, please contact the Victorian Water Industry Association on

T: (03) 9639 8868 F: (03) 9639 8860 email: [email protected]

mailto:[email protected]



TABLE OF CONTENTS

FOREWORD .................................................................................................................................................................... I

INTERPRETATION – FORMAT AND TERMINOLOGY ............................................................................................. II

EXPLANATION OF UPDATES ................................................................................................................................... III

WATER AMENDMENT (GOVERNANCE AND OTHER REFORMS) ACT 2012 (“AMENDING ACT”) ............... V

INDEX OF UPDATES ................................................................................................................................................ VIII

LIST OF ACRONYMS AND ABBREVIATIONS USED IN THIS MANUAL .........................................................XXIII

PART 1 - WATER ACT 1989 - ADMINISTRATION, OPERATIONS, MANAGEMENT ........................................... 1

1 GENERAL ................................................................................................................................................................ 1 2 LEGAL STATUS OF WATER CORPORATIONS ..................................................................................................... 3 3 MELBOURNE WATER CORPORATION ................................................................................................................. 4 4 CATCHMENT MANAGEMENT AUTHORITIES ....................................................................................................... 5 5 THE CROWN ........................................................................................................................................................... 5 6 GOVERNANCE ........................................................................................................................................................ 7 7 FUNCTIONS, POWERS, DUTIES AND OBJECTIVES OF WATER CORPORATIONS .......................................... 9 8 DISTRICTS AND AREAS OF INTEREST .............................................................................................................. 10 9 ACCESS TO WATER ............................................................................................................................................. 11 10 CUSTOMER DISPUTE RESOLUTION – PART 6B ............................................................................................... 28 11 WATER STORAGE – PART 6C ............................................................................................................................. 28 12 GENERAL POWERS – PART 7 ............................................................................................................................. 28 13 SEARCH WARRANTS ........................................................................................................................................... 31 14 WATER SUPPLY - PART 8 ................................................................................................................................... 41 15 SEWERAGE SUPPLY - PART 9 ............................................................................................................................ 42 16 WATERWAY MANAGEMENT - PART 10 .............................................................................................................. 43 17 IRRIGATION POWERS - PART 11 ........................................................................................................................ 49 18 FINANCE AND ACCOUNTABILITY (BUSINESS PLANS, BORROWINGS AND TARIFFS) – PART 13 ............... 50 19 VICTORIAN WATER TRUST ADVISORY COUNCIL – PART 14A........................................................................ 60 20 VICTORIAN ENVIRONMENTAL WATER HOLDER .............................................................................................. 60 21 PLANS ................................................................................................................................................................... 61 22 BY-LAWS ............................................................................................................................................................... 62 23 TRADE WASTE ..................................................................................................................................................... 64 24 SEPTIC TANKS ..................................................................................................................................................... 65 25 ENVIRONMENTAL ISSUES .................................................................................................................................. 66 26 LIABILITY FROM THE FLOW OF WATER ............................................................................................................ 68 27 LIABILITY OF MEMBERS AND OFFICERS OF A WATER CORPORATION ....................................................... 70 28 ENFORCEMENT .................................................................................................................................................... 71 29 OTHER MATTERS ................................................................................................................................................. 76 30 REGULATIONS...................................................................................................................................................... 78 31 COMMONWEALTH POWERS: MURRAY-DARLING BASIN AUTHORITY ........................................................... 79

PART 2 - WATER INDUSTRY ACT 1994 - ADMINISTRATION, OPERATIONS, MANAGEMENT ..................... 81

32 FORMER LICENSEES – METROPOLITAN WATER CORPORATIONS ............................................................... 81 33 REPEALS ............................................................................................................................................................... 81 34 TRANSITIONAL ..................................................................................................................................................... 82 35 REGULATION OF THE WATER INDUSTRY ......................................................................................................... 86 36 EMERGENCY MANAGEMENT PLANS ................................................................................................................. 87 37 PERMANENT WATER SAVING PLANS ................................................................................................................ 88 38 ENFORCEMENT .................................................................................................................................................... 88 39 PARKS VICTORIA ................................................................................................................................................. 88 40 ENVIRONMENTAL CONTRIBUTIONS .................................................................................................................. 89 41 REGULATIONS...................................................................................................................................................... 89



PART 3 - OTHER DIRECT WATER RELATED ACTS AND ISSUES .................................................................... 93

42 ESSENTIAL SERVICES COMMISSION ACT 2001 ............................................................................................... 93 43 THE ENERGY AND WATER OMBUDSMAN ......................................................................................................... 95 44 CONSTITUTION (WATER AUTHORITIES) ACT 2003 .......................................................................................... 96 45 ESSENTIAL SERVICES ACT 1958 ....................................................................................................................... 97 46 SAFE DRINKING WATER ACT 2003 .................................................................................................................... 98 47 FOOD ACT 1984 .................................................................................................................................................. 104 48 UTILITY METERS (METROLOGICAL CONTROLS) ACT 2002 .......................................................................... 107 49 NATIONAL MEASUREMENT ACT 1960 ............................................................................................................. 107 50 FINANCIAL COMPLIANCE .................................................................................................................................. 109 51 NATIONAL CREDIT CODE .................................................................................................................................. 113

PART 4 - PLANNING AND ENVIRONMENT .......................................................................................................... 115

52 PLANNING AND ENVIRONMENT ACT 1987 ...................................................................................................... 115 53 ENVIRONMENT PROTECTION ACT 1970 ......................................................................................................... 121 54 ENVIRONMENT EFFECTS ACT 1978 ................................................................................................................ 135 55 LITTER ACT 1987 ................................................................................................................................................ 135 56 ENVIRONMENT PROTECTION & BIODIVERSITY CONSERVATION ACT 1999 (CTH) .................................... 136

PART 5 - LAND: CONTROL AND REGULATION ................................................................................................. 139

57 CONSERVATION, FORESTS & LANDS ACT 1987 ............................................................................................ 139 58 CROWN LAND (RESERVES) ACT 1978 ............................................................................................................. 139 59 LAND ACT 1958................................................................................................................................................... 140 60 SALE OF LAND ACT 1962 .................................................................................................................................. 141 61 SUBDIVISION ACT 1988 ..................................................................................................................................... 146 62 TRANSFER OF LAND ACT 1958 ........................................................................................................................ 150 63 PROPERTY LAW ACT 1958 ................................................................................................................................ 151 64 NATIVE TITLE ACT 1993 (CTH) .......................................................................................................................... 152 65 TRADITIONAL OWNER SETTLEMENT ACT 2010 ............................................................................................. 155 66 NATIONAL PARKS ACT 1975 ............................................................................................................................. 156 67 CATCHMENT AND LAND PROTECTION ACT 1994 .......................................................................................... 158 68 FENCES ACT 1968 .............................................................................................................................................. 161 69 LAND ACQUISITION AND COMPENSATION ACT 1986 .................................................................................... 162 70 LAND MONITORING - PURCHASE, COMPULSORY ACQUISITION AND SALE POLICY ................................ 172 71 LANDLORD AND TENANT LEGISLATION ......................................................................................................... 173

PART 6 - FLORA AND FAUNA ................................................................................................................................ 183

72 FLORA & FAUNA GUARANTEE ACT 1988 ........................................................................................................ 183 73 WILDLIFE ACT 1975 ............................................................................................................................................ 190 74 FISHERIES ACT 1995 ......................................................................................................................................... 196 75 REFERENCE AREAS ACT 1978 ......................................................................................................................... 198 76 DOMESTIC ANIMALS ACT 1994.......................................................................................................................... 199

PART 7 – HERITAGE ................................................................................................................................................ 201

80 ARCHAEOLOGICAL & ABORIGINAL RELICS PRESERVATIONS ACT 1972 ................................................... 201 81 ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION ACT 1984 (CTH) ....................... 201 82 ABORIGINAL HERITAGE ACT 2006 ................................................................................................................... 201 83 HERITAGE ACT 1995 .......................................................................................................................................... 203 84 HERITAGE RIVERS ACT 1992............................................................................................................................ 205 85 AUSTRALIAN HERITAGE COMMISSION ACT 1975 (CTH) ............................................................................... 207 86 FEDERAL HERITAGE PROVISIONS .................................................................................................................. 207

PART 8 – EMPLOYMENT / INDUSTRIAL / DIRECTOR, MEMBER AND OFFICER LIABILITY ....................... 211

87 EQUAL OPPORTUNITY AND ANTI-DISCRIMINATION LAWS ........................................................................... 211 88 EQUAL OPPORTUNITY ACT 2010 (VIC) ............................................................................................................ 211 89 AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 (CTH) ...................................................................... 220 90 FAIR WORK ACT 2009 (CTH) ............................................................................................................................. 220 91 EQUAL OPPORTUNITY FOR WOMEN IN THE WORKPLACE ACT 1999 (CTH) .............................................. 221 92 OCCUPATIONAL HEALTH & SAFETY ACT 2004 ............................................................................................... 222 93 HARMONISED WORKPLACE SAFETY LEGISLATION ...................................................................................... 225 94 ACCIDENT COMPENSATION ACT 1985 ............................................................................................................ 225 95 EMPLOYMENT LEGISLATION - FEDERAL/STATE RELATIONSHIP ................................................................ 227 96 VICTORIAN INDUSTRIAL RELATIONS POLICY ................................................................................................ 231 97 STATE SUPERANNUATION ACT 1988 (VIC) ..................................................................................................... 232



98 LONG SERVICE LEAVE ...................................................................................................................................... 234 99 VICARIOUS LIABILITY FOR ACTIONS OF EMPLOYEES AND AGENTS .......................................................... 235 100 PUBLIC SAFETY COMMON LAW / NEGLIGENCE ............................................................................................. 236 101 WRONGS ACT 1958 ............................................................................................................................................ 237 102 MEMBER LIABILITY ............................................................................................................................................ 238 103 STATUTORY OBLIGATIONS .............................................................................................................................. 239 104 CRIMINAL LIABILITY ........................................................................................................................................... 245

PART 9 - DOCUMENT CONTROL AND MANAGEMENT ..................................................................................... 247

105 PUBLIC RECORDS ACT 1973 ............................................................................................................................ 247 106 EVIDENCE ACT 2008 .......................................................................................................................................... 248 107 LIMITATIONS OF ACTIONS ACT 1958 ............................................................................................................... 248 108 FREEDOM OF INFORMATION ACT 1982 .......................................................................................................... 249 109 INFORMATION PRIVACY ................................................................................................................................... 268 110 ADMINISTRATIVE LAW - REVIEW OF AUTHORITY DECISIONS ..................................................................... 276 111 INTELLECTUAL PROPERTY .............................................................................................................................. 278 112 COPYRIGHT ACT ................................................................................................................................................ 278 113 PATENTS ............................................................................................................................................................. 284 114 DESIGNS ............................................................................................................................................................. 288 115 TRADE MARKS ................................................................................................................................................... 292 116 CIRCUIT LAYOUTS ............................................................................................................................................. 296 117 CONFIDENTIAL INFORMATION ......................................................................................................................... 296 118 PASSING OFF ..................................................................................................................................................... 299 119 COMPETITION, CONSUMER AND FAIR TRADING OVERVIEW....................................................................... 300 120 COMPETITION LAW ............................................................................................................................................ 302 121 CONSUMER AND FAIR TRADING LAW (ACL)................................................................................................... 307 122 DESTRUCTION OF EVIDENCE .......................................................................................................................... 316

PART 10 - OTHER LEGISLATION .......................................................................................................................... 319

120 COUNTRY FIRE AUTHORITY ACT 1958 ............................................................................................................ 319 121 METROPOLITAN FIRE BRIGADES ACT 1958 ................................................................................................... 321 122 FORESTS ACT 1958 ........................................................................................................................................... 322 123 VICTORIA STATE EMERGENCY SERVICE ACT 2005 AND EMERGENCY MANAGEMENT ACT 1986 .......... 323 124 CODE OF PRACTICE FOR BUSHFIRE MANAGEMENT ON PUBLIC LAND ..................................................... 323 125 DANGEROUS GOODS ACT 1985 ....................................................................................................................... 324 126 DRUGS, POISONS & CONTROLLED SUBSTANCES ACT 1981 ....................................................................... 326 127 PUBLIC HEALTH AND WELLBEING ACT 2008 .................................................................................................. 326 128 HEALTH (FLUORIDATION) ACT 1973 ................................................................................................................ 327 129 MINERAL RESOURCES (SUSTAINABLE DEVELOPMENT) ACT 1990 ............................................................. 328 130 EXTRACTIVE INDUSTRIES DEVELOPMENT ACT 1995 ................................................................................... 329 131 TERRORISM (COMMUNITY PROTECTION) ACT 2003 ..................................................................................... 330 132 TERRORISM INSURANCE ACT 2003 (CTH) ...................................................................................................... 331 133 BUILDING ACT 1993 ........................................................................................................................................... 332 134 ROAD MANAGEMENT ACT 2004 ....................................................................................................................... 342 135 CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 .............................................................. 344 136 INTERNATIONAL TREATIES AND OBLIGATIONS ............................................................................................ 346 137 OTHER INTERNATIONAL INITIATIVES .............................................................................................................. 350



Page I

FOREWORD

Since the first publication of this Manual over 12 years ago, the Victorian water industry has continued to undergo significant change both in terms of governance (legislation, regulation and policy), and external impacts including drought, major infrastructure projects, and higher levels of scrutiny from government, policy makers and the public.

The first substantial update to this Manual occurred in 2009 and the Manual has now undergone this substantial update in 2012.

Further changes are anticipated to water law with the State Government considering a complete review of the Water Act through 2013 and (probably) into 2014.

The key objective of this Manual, remains the provision of a plain English description and summary of the various Acts, regulations, codes/directions, policies, and other instruments that have application to the Victorian water industry. There is an immense range of laws applying to the water industry. This Manual will at times provide you with the answers you seek, and at other times offer direction to other pertinent information.

It is recognised that the Victorian water industry is made up of not just water businesses, but a whole range of stakeholders.

Subscription to this Manual is available to:

Melbourne Water Corporation

metropolitan, rural and regional urban water corporations;

catchment management authorities;

government agencies;

local government; and

consultants and others who work within the industry.

This Manual is not a substitute for legal advice, and is not designed to provide specific legal advice in relation to any particular matter. It is intended as a guide only. It is strongly recommended that legal advice is sought if legal issues are involved. The Victorian Water Industry Association and the authors, Russell Kennedy Solicitors, accept no liability where any party acts in reliance on this Manual.

Subscribers to this Manual, particularly members of VicWater, are often a key source of information for updating information for inclusion within this Manual. Subscribers are encouraged to contact the Association or the authors of this Manual to provide such input.

Finally, I would like to acknowledge the authors of this Manual, Russell Kennedy Solicitors for their work on both the original and latest versions.

Tony Wright Chief Executive Officer Victorian Water Industry Association Inc



Page II

INTERPRETATION – FORMAT AND TERMINOLOGY

Initial parts of this Manual contain an index of updates to the various laws and policies that affect the Victorian water industry and references to the relevant parts of this Manual which have been changed.

Thereafter, the Manual is divided into Parts and those Parts are divided into sections. Logically, Part 1 and Part 2 concentrate on the Water Act 1989 and the remaining relevant parts of the Water Industry Act 1994 as the key legislation for water businesses.

While a reasonable effort has been made to adopt a plain English approach, the key target for this Manual remains Victorian water businesses and those who are members of the Victorian Water Industry Association. Therefore, some terminology adopted throughout the Manual may be more familiar to those water businesses than the general reader.

The Water Act defines the term “Authority” to mean a water corporation including Melbourne Water Corporation or a Catchment Management Authority, also the metropolitan water corporations (previously City West Water Ltd, South East Water Ltd and Yarra Valley Water Ltd), the non-metropolitan water corporations (the regional and rural, and urban rural water corporations). The term Water Corporation will also be used to capture Melbourne Water Corporation, unless specifically mentioned otherwise.

As a Victorian water industry Manual, references are to Victorian Acts and regulations, unless otherwise indicated.

Some common terms are used, for example, the Victorian Civil and Administrative Tribunal (a regular review jurisdiction for Victorian water businesses) is referred to as “VCAT”, Melbourne Water Corporation is referred to as Melbourne Water, and the Catchment Management Authorities as CMAs throughout this Manual.

Reference to “penalty units” throughout this Manual refers to the amount fixed from time to time by the Treasurer under section 5(3) of the Monetary Units Act 2004 (see section 110 of the Sentencing Act 1991 and the Victoria Government Gazette). As at October 2012, one “penalty unit” is equal to $122.14.

A glossary of commonly used terms and abbreviations and acronyms follows the tables of updates.



Page III

EXPLANATION OF UPDATES

This Manual will be updated regularly, on occasions with special updates in the case of significant changes.

Updates will be forwarded to members of the Victorian Water Industry Association on CD-Rom.

Each updated version of the Manual includes previous ‘Index of Updates’ pages so readers can access the history of specific legislation and compare it to the current version.

Further, where legislation has been repealed and new legislation enacted, this is indicated in the updates.

Updates are provided by:

Andrew Sherman and Astrid Di Carlo Russell Kennedy Solicitors Level 12 469 La Trobe Street Melbourne Victoria 3000

All legal queries in relation to this Manual should be directed to Andrew Sherman or Astrid Di Carlo.



Page V

WATER AMENDMENT (GOVERNANCE AND OTHER REFORMS) ACT 2012 (“AMENDING ACT”) The Amending Act commenced on 1 July 2012. The main purpose of the Amending Act was to bring the three metropolitan licensees (City West Water Ltd, Yarra Valley Water Ltd and South East Water Ltd (“former licensees”) within the operation of the Water Act. This was perhaps the most significant amendment brought about by the Amending Act, but there were a number of other changes made to both the Water Act and the Water Industry Act that also occurred. More detail is included within this Manual. The following, however, is a summary of the changes made to both these Acts. 1 Names

The names of the Water Corporations remain the same except City West Water Ltd, Yarra Valley Water Ltd, and South East Water Ltd are now formally to be known as metropolitan water corporations established pursuant to section 85(1A) of the Water Act and are, from the 1 July 2012, known as:

City West Water Corporation

South East Water Corporation

Yarra Valley Water Corporation Other than Melbourne Water, all other water businesses are known as non-metropolitan water corporations for the purposes of the Water Act.

2 Definitions, repeals and transitions Several definitions in the Water Act and Water Industry Act have been repealed, amended or inserted as a result of the changes brought about by the Amending Act.

In relation to changes to the Water Industry Act, the relevant changes have been made to allow for the transition of the former licensees into the Water Act. See Part 2 of the Manual for more detailed information about the Water Industry Act.

References in the Water Act to the First Mildura Irrigation Trust, Latrobe Valley and Yallourn works have been repealed, as have any sections dealing with these bodies.

3 Board of Directors

Changes were made to the sections of the Water Act dealing with the Board of Directors. See Part 1 section 6.1 of this Manual.

4 Districts

New provisions in relation to districts were inserted, and the provisions in relation to areas of interest were repealed. See Part 1 section 8 of this Manual.

These new provisions set the district boundaries for the metropolitan water corporations which cannot be amended by them. It also allows the Minister to determine a water or sewerage district which effectively overrides any existing water or sewerage districts that would overlap that determination.



Page VI

If the Minister makes such a determination, the non-metropolitan water corporations cannot make any new or extend or change any existing districts under the existing provisions of the Water Act.

This provision will allow the Minister power to establish new water and sewerage districts over time, to create contiguous districts.

5 Areas of interest / Service by Agreement

Of specific interest to most non-metropolitan water corporations is:

All areas of interest existing before 1 July 2012 continue in existence until a determination is made by the Minister under new Division 1AA of Part 6A of the Water Act.

All agreements made by a water corporation for the purposes of the supply of water or sewerage services out of district immediately in force before 1 July 2012 are taken to have been validly entered into whether or not the consent of the Minister was obtained.

6 Power to enter

Sections 133 and 134 regarding the power to enter land have been amended. There is a new power incorporated into section 133, and that is the power (and requirement) to obtain search warrants in certain circumstances. See Part 1 section 13 of this Manual for more information on search warrants. See Part 1 section 12.4 “Entry of land” in this Manual.

7 VCAT review

New provisions have been inserted into the Water Act to allow a person to appeal to VCAT for decisions made by a Water Corporation. These include decisions relating to:

connecting to works under section 145(3);

serving a notice to connect to sewerage works under section 147(1);

serving a notice to remove a connection under section 147(1A)(a); and

serving a notice to carry out works under section 147(1A)(b). See Part 1 section 13.6 of this Manual for further information.

8 Emergency management plans

The Amending Act inserted a new requirement for Water Corporations to make emergency management plans (section 159A Water Act). See Part 1 section 21.4 of this Manual for further information on emergency management plans.

9 Payment for services

The Amending Act has made a number of changes to the provisions relating to liability to pay for services. See Part 1 section 18 in relation to these changes. These include changes to:

tenancy arrangements;

owners corporation liability; and

fees, charges and debt recovery provisions.



Page VII



Page VIII

INDEX OF UPDATES

October 2012 NOTE 1: Because several new sections have been introduced into this revised edition, the section

numbering is different to the previous 2009 edition of the Manual. NOTE 2: Minor amendments have been made to formatting but these have not been noted. Only the major

changes to the sections have been noted below.

Amended legislation

Location of Amendment within Manual

Water Act 1989 Part 1

Water Amendment (Governance and Other Reforms) Act 2012 Preliminary and references throughout Part 1 and Part 2

Water Legislation Amendment (Water Infrastructure Charges) Act 2011

Water Amendment (Victorian Environmental Water Holder) Act 2010

Water Amendment (Entitlements Act) 2010

Water (Groundwater) Regulations 2002 Repealed 1/7/2012

Water (Notice Of Disposition Of Land) Regulations 2000 Repealed 1/8/2010

Water (Permanent Transfer of Water Rights) Regulations 2001 Expired 4/12/2011

Water (Register of Interests) Regulations 2000 Repealed 1/8/2010

Water (Subdivisional Easements and Reserves) Regulations 2001 Repealed 19/3/2011

Water (Drillers’ Licences) Regulations 2012 New – Section 30

Water (Long Service Leave) Regulations 2011 New – Section 30

Water (Notice of Disposition of Land) Regulations 2010 New – Section 30

Water (Register of Interest) Regulations 2010 New – Section 30

Water (Subdivisional Easements and Reserves) Regulations 2011

New – Section 30



Page IX

Amended legislation


Water Industry Act 1994 Part 2

Water Amendment (Governance and Other Reforms) Act 2012 Part 1 and 2

Water Industry (Reservoir Parks Land) Regulations 2001 Sunsetted 27/11/2011

Water Industry (Waterways Land) Regulations 2002 Sunsetted 25/6/2012

Other Direct and Water Related Legislation Part 3

Utility Meters (Meteorological Controls) Act 2002 Repealed 1/8/2010

National Measurement Act 1960 (Cth) Section 49

Project Development and Construction Management Act 1994 Section 50.6

Consumer Credit Code Replaced By National Credit Code - Section 51

Planning and Environment Part 4

Planning and Environment Amendment (General) Bill 2012 Section 52.11

Environment Protection Amendment (Landfill Levies) Act 2011 Section 53.12.20

Environment Protection (Distribution And Landfill Levy) Regulations 2010

Section 53.12

Environment Protection (Fees) Regulations 2001 Repealed 28 October 2012

Environment Protection (Fees) Regulations 2012

28/10/2012 - Section 53.15

Land Control And Regulation Part 5

Traditional Owners Settlement Act 2010 Section 65

Land Acquisition and Compensation Regulations 2010 Section 69.2

Landlord and Tenant Act 1958 Repealed 1/9/2012 - Section 71.5

Australian Consumer Law and Fair Trading Act 2012

Sections 71.5.1, 119.1.2 and 119.2

Flora and fauna Part 6

Domestic (Feral And Nuisance) Animals Act 1994 Changed its name to the Domestic Animals Act 1994 -



Page X

Amended legislation


Sections 72.1.1 and 76

Flora and Fauna Guarantee Regulations 2001 Repealed 10/12/2011

Flora and Fauna Guarantee Regulations 2011 Section 72.9.5

Heritage Part 7

General updates only

Employment and industrial relations Part 8

Equal Opportunity Act 2010 Section 88

Document control and management Part 9

Evidence Act 1958 Changed its name to the Evidence (Miscellaneous

Provisions) Act 1958

Evidence Act 2008 Section 106

Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012

Section 108.3

Trade Practices Act 1974 (Cth) Repealed Section119

Australian Consumer Law and Fair Trading Act 2012 Section 119

Competition and Consumer Act 2010 (Cth) Section 119

Other legislation Part 10

Code of Practice for Bushfire Management or Public Land Replaced the Code of Practice for Fire Management

in Public Land 2005 Section 124

Plant Biosecurity Act 2010 Replaced Plant Health and

Plant Products Act 1915 Section 125.1.3

Dangerous Goods (Explosives) Regulations 2011 replaces Dangerous Goods (Explosives) Regulations 2010

Section 125.5

Health Act 1958 Repealed 1/1/2010



Page XI

Amended legislation


Public Health and Wellbeing Act 2008 Section 127

Extractive Industries Development Act 1995 Repealed 1/1/2010

Mineral Resources (Sustainable Development) Act 1990 Section 129

Building Act 1993 Section 133

Code of Practice for Worksite Safety, Traffic Management 2010 Section 134.6.2



Page XII

INDEX OF UPDATES

August 2009 NOTE 1: Because several new sections have been introduced into this revised edition, the section numbering is different to the previous 2008 edition of the Manual. NOTE 2: Minor amendments have been made to formatting but these have not been noted. Only the major changes to the sections have been noted below. Amended Legislation

Location of Amendment within 2009 Manual

1 Water Act 1989

1.1 FMIT changes

1.2 Gazettal Declared Water Districts

1.3 Water (Commonwealth Powers) Act 2008

Part 1

Section 1.7

Section 9.1.9

Section 29

2 Water Industry Act 1994 Part 2

3 Other direct and water related legislation

3.1 Price Determination

3.2 Safe Drinking Water Act 2003

3.3 Tendering provisions – Ministerial Direction No 1

Part 3

Section 49.3.5

Section 51.1.5

Section 55.8

4 Planning and environment

4.1 Environment Protection (Industrial Waste Resource) Regulations 2009

Part 4

Section 58.12.22

5 Land control and regulation

5.1 Sale of Land Act 1962

5.2 Estate Agents (Contracts) Regulations 2008

5.3 Land Acquisition and Compensation Act 1986

5.4 Retail Leases Act 2003

Part 5

Section 65

Section 67.5.6

Section 73.5

Section 75.5.4(d)

6 Flora and fauna

6.1 Fisheries Act 1995

Part 6

Section 78.4



Page XIII

7 Heritage

7.1 Aboriginal Heritage Act 2006

Part 7

Section 83.4.6

8 Employment and industrial relations

8.1 Equal Opportunity Act 1995

8.2 Fair Work Act 2009 (Cth)

8.3 Employment Legislation

Part 8

Section 89

Section 91

Section 95

9 Document control and management

9.1 Evidence Act 1958

9.2 Freedom of Information Act 1982

9.3 Freedom of Information Regulations 2009

9.4 Copyright Act 1968

9.5 Designs Act 2003

9.6 Trade Practices Act 1974 (Cartels)

9.7 Unfair Contract Terms

Part 9

Section 104.1

Section 106

Section 106.2

Sections 110.8 – 110.10

Sections 112.4 and 112.7

Section119.10

Section 122

10 Other legislation

10.1 Dangerous Goods Act 1985

10.2 Health Act 1958

10.3 Extractive Industries Development Act 1995

10.4 Code of Practice for Management of Infrastructure in Road Reserves (2008)

10.5 Charter of Human Rights and Responsibilities Act 2006

10.6 International Treaties and Obligations

Part 10

Section 129

Section 131.1

Section 134.1

Section137.2.2(d)

Section 138

Section 139.6



Page XIV

May 2008 Amended Legislation Location of Amendment

within Manual

1 Water Act 1989 Part 1

2 Water Industry Act 1994 Part 2

3 Other direct and water related legislation

3.1 Food Act 1984

Part 3

Part 3 Section 51

4 Planning and environment

4.1 Litter Act 1987

4.2 Environment Protection (Environment and Resource Efficiency Plans) Regulations 2007

Part 4

repealed

commenced 1 January 2008

Part 4 Section 57.12

5 Land control and regulation

5.1 Subdivision (Body Corporate) Regulations 2001

5.2 Owners Corporations Act 2006 and Owners Corporations Regulations 2007

5.3 Stamp duty on water entitlements

Part 5

repealed

Part 5 Section 65.8

Part 5 Section 64.6

6 Flora and fauna Part 6

7 Heritage

7.1 Archaeological and Aboriginal Relics Preservation Act 1972

7.2 Aboriginal and Torres Strait Islander Heritage Protection Act 1984

7.3 Aboriginal Heritage Act 2006

7.4 Australia Heritage Commissioner Act 1975 (Cth)

7.5 Australian Heritage Council Act 2003

Part 7

repealed

partially repealed Part 7 Section 81

Part 7 Section 82

repealed Part 7 Section 85

Part 7 Section 86.6

8 Employment and industrial relations

8.1 Occupational Health and Safety Act 2004

Part 8

Section 90

9 Document control and management Part 9



Page XV

Amended Legislation Location of Amendment within Manual

10 Other legislation

10.1 Terrorism (Community Protection) Act 2003

10.2 Terrorism Insurance Act 2003 (Cth)

10.3 Road Management Act 2004

10.4 International Treaties and Obligations

Part 10

Part 10 Section 131

Part 10 Section 132

Part 10 Section 133

Part 10 Section 134



Page XVI

INDEX OF UPDATES

October 2003 Amended Legislation Location of Amendment

within Manual

1 Water Act 1989 Part 1 – Clause 1.10.1

Part 1 – Clause 1.15.1

2 Planning and Environment Act 1987 Part 2 – 4.6.3

3 Land Monitoring Purchase, Compulsory Acquisition and Sale Policy

Part 2 – Clause 22.1

4 Retail Tenancies Reform Act 1998 Part 3 – Clause 23.5

Residential Tenancies Act 1997 Part 3 – Clause 23.9

5 Domestic (Feral and Nuisance) Animals Act 1994 Part 4 – Clause 29.1-29.2

6 Employee Relations Act 1992 Part 6 – Clause 41.1

7 Workplace Relations Act 1996 Part 6 – Clause 41.6.4

8 Corporations Act 2001 Part 6 – Clause 47.10-47.12

Part 6 – Clause 47.13(Repealed)



Part 6 - 47.23

9 Information Privacy Act 2000 Part 7 – Clause 55

10 Patents Act 1990 Part 7 – Clause 57.3.4



Page XVII

INDEX OF UPDATES

July 2002

Amended Legislation Location of Amendment

within Manual

1 Water Act 1989 Part 1 – Clause 1.38.6

2 Water Industry Act 1994 Part 1 – Clause 2.2



3 Planning and Environment Act 1987 Part 2 – 4.6.3

4 Land Monitoring Purchase, Compulsory Acquisition and Sale Policy


5 Retail Tenancies Reform Act 1998 Part 3 – Clause 23.5

6 Residential Tenancies Act 1997 Part 3 – Clause 23.9

7 Domestic (Feral and Nuisance) Animals Act 1994 Part 4 – Clause 29.1-29.2

8 Employee Relations Act 1992 Part 6 – Clause 41.1

9 Workplace Relations Act 1996 Part 6 – Clause 41.6.4

10 Corporations Act 2001 Part 6 – Clause 47.10-47.12

Part 6 – Clause 47.13(Repealed)



Part 6 - 47.23

11 Information Privacy Act 2000 Part 7 – Clause 55

12 Patents Act 1990 Part 7 – Clause 57.3.4

13 Kyoto Protocol Part 8 – Clause 68.18



Page XVIII

INDEX OF UPDATES

July 2001


within Manual

1 Water Act 1989 Part 1 – Clause 1.47.1 Endnote

2 Water Industry Act 1994 Part 1 – Clause 2.24.2

3 Environment Protection Act 1970 Part 2 – Clause 5.1.2




Part 2 – 5.9

4 Native Title Act 1993 Part 3 – Clause 16.1.4

Part 3 – Clause 16.2-16.5.2

5 Fisheries Act 1995 Part 4 – Clause 26-26.8

6 Domestic (Feral and Nuisance) Animals Act 1994 Part 4 – Clause 29.2

7 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Part 5 – Clause 31.3.7 Part 5 –

Clause 31.3.3-31.3.6

8 Heritage Act 1995 Part 5 – Clause 32.2.7 Part 5 – Clause 32.7.4 Part 5 – Clause 32.8.2

9 Public Authorities (Equal Employment Opportunity) Act 1980 Part 6 – Clause 37 (repealed)

10 Mineral Resources Development Act 1990 Part 8 – Clause 68.1.2 & 68.1.5

Part 8 – Clause 68.2.5 Part 8 – Clause 68.4.1



Page XIX

INDEX OF UPDATES

July 2000


within Manual

1 Environment Protection and Biodiversity Conservation Act 2000 Part 2 – Clause 8.1-8.6 Part 8 – Clause 68.2

2 Environment Protection Act 1970 Part 2 – Clause 5.5.1 Part 2 – Clause 5.7.8

Part 2 – Clause 5.12.1-5.12.3


3 Planning and Environment Act 1987 Part 2 – Clause 4.7.6

4 Environment Effects Act 1987 Part 2 – Clause 6.4

5 Endangered Species Protection Act 1992 Part 4 – Clause 28

6 Accident Compensation Act 1985 Part 6 – Clause 40.2.7



Page XX

INDEX OF UPDATES

January 2000


within Manual

1 Audit (Amendment) Act 1999 Part 1 – Clause 3.1

2 Water (Waterway Management Tariff) Act 1999 Part 1 – Clause 1.12.6 Part 1 – Clause 1.12.7

Part 1 – Clause 1.7.15.1 Part 1 – Clause 1.7.15.2 Part 1 – Clause 1.7.15.3

3 Freedom of Information (Miscellaneous Amendments) Act 1999 Part 7 – Clause 55.19.6 Part 7 – clause 55.21.1 Part 7 – Clause 55.21.6 Part 7 – Clause 55.1.12



Page XXI



Page XXIII

LIST OF ACRONYMS AND ABBREVIATIONS USED IN THIS MANUAL

AAV Aboriginal Affairs Victoria

AIRC Australian Industrial Relations Commission

ASIC Australian Securities and Investment Commission

CFA Country Fire Authority

CHMP Cultural Heritage Management Plan

CMA Catchment Management Authority

Code Consumer Credit Code

DPI Department of Primary Industries

DSE Department of Sustainability and Environment

EDP Electronic Data Processing

EES Environment Effects Statement

EPA Environment Protection Authority

ESC Essential Services Commission

EWOV Energy and Water Ombudsman Victoria

FWA Fair Work Australia

GST Goods and services tax

GWL Green Wedge Land

ICO Interim Conservation Order

ILUA Indigenous Land Use Agreement

IPP Information Privacy Principle

LMN Land Management Notice

Melbourne Water Melbourne Water Corporation

NEIP Neighbourhood Environment Improvement Plan

NITA Notice of Intention to Acquire

NOA Notice of Acquisition

NPP National Privacy Principles

ODS Ozone Depleting Substances



Page XXIV

OECD Organisation for Economic Co-operation and Development

OHS Occupational Health and Safety

RAP Registered Aboriginal Party

SEPP State Environment Protection Policy

SoO Statement of Obligations

SRO State Revenue Office

TSP Targeted Separation Package

UGB Urban Growth Boundary

UNCED United Nations Conference on Environment and Development

VCAT Victorian Civil and Administrative Tribunal

VDP Voluntary Departure Package

VEOHRC Victorian Equal Opportunity and Human Rights Commission

VHR Victorian Heritage Register

VPPs Victorian Planning Provisions

VSES Authority Victorian State Emergency Services Authority

Water Holder Victorian Environmental Water Holder established under section 33DB(1) Water Act

WIRO Water Industry Regulatory Order

WMP Waste Management Policy



Part 1 1

PART 1 - WATER ACT 1989 - ADMINISTRATION, OPERATIONS, MANAGEMENT

1 GENERAL

1.1 The Water Act 1989 is the key empowering legislation for suppliers of water, irrigation and sewerage services throughout Victoria.

1.2 Originally, the Water Act was directed at those statutory authorities which were to become the regional and rural water corporations, although it did contain a series of other provisions applying to the CMAs. The ambit of the Water Act has, however, expanded significantly, particularly with amendments made in 2006 and in 2012.

1.3 The Water (Governance) Act 2006 brought all of Victoria’s water businesses (with the exception of the former licensees under the operation of the Water Act, including Melbourne Water Corporation. This amending legislation also changed the former statutory authorities into statutory corporations.

1.4 The Water Amendment (Governance & Other Reforms) Act 2012 brought the former licensees into the ambit of the Water Act so that now all the regional urban and rural Water Corporations (now known as non-metropolitan water corporations), Melbourne Water, and the former licensees (now known as the metropolitan water corporations) are incorporated into the one Act.

1.5 The regional urban water corporations are:

1.5.1 Barwon Region Water Corporation;

1.5.2 Central Gippsland Region Water Corporation (Gippsland Water);

1.5.3 Central Highlands Region Water Corporation;

1.5.4 Coliban Region Water Corporation;

1.5.5 East Gippsland Region Water Corporation;

1.5.6 Goulburn Valley Region Water Corporation;

1.5.7 Grampians Wimmera Mallee Water Corporation;

1.5.8 Lower Murray Urban and Rural Water Corporation;

1.5.9 North East Region Water Corporation;

1.5.10 South Gippsland Region Water Corporation;

1.5.11 Wannon Region Water Corporation;

1.5.12 Western Region Water Corporation;

1.5.13 Westernport Water Corporation; and

1.5.14 any other body determined by the Minister to be a regional urban Water Corporation.



Part 1 2

1.6 These regional urban water corporations deal predominantly (but not necessarily exclusively) with the supply of drinking water and sewerage services in their respective regions throughout Victoria, also, to a growing extent, the supply of recycled water.

1.7 The rural water corporations are:

1.7.1 Lower Murray Urban and Rural Water Corporation;

1.7.2 Goulburn-Murray Rural Water Corporation;

1.7.3 Gippsland and Southern Rural Water Corporation (Southern Rural Water);

1.7.4 Grampians Wimmera Mallee Water Corporation; and

1.7.5 any other body determined by the Minister to be a rural Water Corporation.

Note: On 15 August 2008, the Minister, by declaration pursuant to section 87 of the Water Act, announced that from 19 August 2008 the First Mildura Irrigation Trust was integrated into Lower Murray Urban and Rural Water Corporation. As at 1 July 2012 references to the First Mildura Irrigation Trust were removed from the Water Act.

1.8 The rural water corporations deal predominantly (but not necessarily exclusively) with irrigation, irrigation drainage, groundwater and various waterway functions.

1.9 Two Water Corporations fill both the urban (potable water and sewerage) and rural roles, namely:

1.9.1 Grampians Wimmera Mallee Water Corporation; and

1.9.2 Lower Murray Urban and Rural Water Corporation.

1.10 Several Water Corporations have adopted trading names, for example Goulburn-Murray Rural Water Corporation trades as Goulburn-Murray Water, Central Gippsland Region Water Corporation trades as Gippsland Water and Lower Murray Urban and Rural Water Corporation trades as Lower Murray Water.

1.11 The amendments implemented in 2007 brought Melbourne Water under the Water Act. Melbourne Water is therefore properly described as a Water Corporation under the terms of the Water Act, and has the various powers and responsibilities applicable to other Water Corporations (with some exceptions set out in the Water Act). For various reasons, some special provisions needed to be added to the Water Act in respect of Melbourne Water. Due to Melbourne Water’s later inclusion under this legislation, together with its own historic legislation, roles and responsibilities, care needs to be taken when interpreting the Water Act and its application to Melbourne Water.

1.12 In broad terms, the Water Act is divided into Parts which provide powers, rights and responsibilities to all Water Corporations covered by the Water Act and Parts which relate specifically to the particular type of Water Corporation. For example, Part 11 of the Water Act, in relation to irrigation, does not generally relate to regional urban



Part 1 3

Water Corporations. Conversely, the sewerage provisions, in Part 9 of the Water Act, do not relate to the rural Water Corporations. Also, various provisions which appear to apply to all Water Corporations, will in application, apply only to some. For example, although not specifically stated, provisions that relate to water rights and licensing (in terms of various powers, including power delegated from the Minister) will relate to the rural and urban rural Water Corporations, not the regional Water Corporations.

1.13 The Water Act, from 1 July 2012, now applies specifically to the metropolitan water corporations, City West Water, Yarra Valley Water and South East Water. These corporations are no longer companies pursuant to the Corporations Act, but statutory authorities created and governed by the Water Act. Further information on the transition of these organisations is dealt with in Part 2.

1.14 The Water Act also sets out the various functions and powers of the CMAs. These bodies are governed by both the Water Act and the Catchment Land Protection Act 1994 (see Part 1 section 4 of this Manual for more information on CMAs).

2 LEGAL STATUS OF WATER CORPORATIONS

2.1 Water Corporations are bodies corporate created by section 85 of the Water Act.

2.2 The Minister may, by determination with the approval of the Treasurer, establish a water corporation if the Minister is satisfied that it is necessary to do so for the purposes of section 87 of the Water Act. A water corporation is to be known by the name set out in the determination.

2.3 In order to trace the creation of a particular Water Corporation for any purpose (including proof purposes for litigation), one needs to trace the relevant gazettals of the Minister's decisions and previous versions of the legislation. Water Corporations should maintain easy access to a complete set of gazettals and other instruments that led to their formation.

2.4 Water Corporations:

2.4.1 are bodies corporate with perpetual succession;

2.4.2 have an official seal;

2.4.3 can sue and be sued; and

2.4.4 may acquire, hold or dispose of real and personal property).

2.5 The Public Administration Act 2004 applies to each Water Corporation as if that Water Corporation were a public entity, but not a small entity, within the meaning of that Act. Water Corporations are not corporations for the purposes of the Federal Corporations Act (section 86 Water Act).

2.6 One of the purposes of the Public Administration Act 2004 is to provide a framework for good governance in the Victorian public sector and in public administration generally in Victoria. Another purpose of this Act is to enable certain public sector employees to apply to the Public Sector Standards Commissioner for relief in respect of termination of employment on the ground that the termination was harsh, unjust or unreasonable.



Part 1 4

3 MELBOURNE WATER CORPORATION

3.1 Melbourne Water was originally established in 1891 as the Melbourne and Metropolitan Board of Works (“MMBW”) and was formed to take responsibility for both water supply and the treatment of sewage.

3.2 In 1992 MMBW merged with a number of other water authorities to form Melbourne Water Corporation under the auspices of the Melbourne Water Corporation Act 1992.

3.3 The Water (Governance) Act 2006 repealed the Melbourne Water Corporation Act, along with the Melbourne and Metropolitan Board of Works Act 1958. Melbourne Water now comes under the operation of the Water Act.

3.4 The functions and powers of Melbourne Water include:

3.4.1 supplying drinking water to the metropolitan water corporations and several regional urban water corporations;

3.4.2 managing sewage and trade waste from the metropolitan water corporations;

3.4.3 providing recycled water to the metropolitan water corporations and several regional urban water corporations;

3.4.4 arranging for the provision of fire plugs and water for fire fighting purposes;

3.4.5 protecting Melbourne Water’s water supply system;

3.4.6 making by-laws with respect to water supply and the water supply system;

3.4.7 managing the drainage functions and floodplain management functions of metropolitan Melbourne;

3.4.8 levying tariffs and require payments of fees under tariffs;

3.4.9 managing debt recovery powers;

3.4.10 managing the surface water of several waterways and catchments in Melbourne;

3.4.11 issuing water irrigation licences from regulated and unregulated waterways in Melbourne; and

3.4.12 issuing stormwater harvesting licences to harvest water from waterways, drains, channels and assets controlled by Melbourne Water.

3.5 Melbourne Water cannot declare properties as serviced properties. Section 144A of the Water Act deems that a serviced property is any land in a waterway management district of Melbourne Water that is rateable land within the meaning of the Local Government Act 1989.



Part 1 5

4 CATCHMENT MANAGEMENT AUTHORITIES

4.1 The CMAs are:

4.1.1 Corangamite CMA;

4.1.2 East Gippsland CMA;

4.1.3 Glenelg Hopkins CMA;

4.1.4 Goulburn Broken CMA;

4.1.5 Mallee CMA;

4.1.6 North Central CMA;

4.1.7 North East CMA;

4.1.8 Port Phillip and Western Port CMA;

4.1.9 West Gippsland CMA; and

4.1.10 Wimmera CMA.

4.2 The structure of a CMA is designed to maximise community involvement in decision-making. A CMA’s structure comprises:

4.2.1 The Board - which is directly responsible for the development of strategic direction for land and water management in the CMA’s region.

4.2.2 The Implementation Committees - these are conduits for local community input, and are responsible for the development of detailed work programs and the oversight of on-ground program delivery for specific issues or sub-catchments.

4.2.3 The Staff - support the Board and Implementation Committees, oversee development and implementation of programs and liaise with the community, government and other catchment focused organisations.

4.3 CMAs play an important part in the broader environmental management of waterways and ecosystems.

4.4 The CMAs have the role of waterway management authorities under the Water Act.

4.5 CMAs also play an important role in town planning. Planning schemes often include triggers for planning permit applications and referrals where use or development of land is within a certain distance of declared waterways or within particular catchments.

5 THE CROWN

5.1 Water Corporations (including Melbourne Water) are not the Crown (either in its Federal or State capacity) and do not represent the Crown. This will often have implications in various areas of law.



Part 1 6

5.2 Sections 5(a) to (i) of the Water Act set out those provisions of the Water Act that do bind the Crown in the right of the State of Victoria, and such as the law permits, the Crown in any other capacity (eg, Federal). These provisions are:

5.2.1 obtaining the Water Corporation's authorisation in relation to drainage work (section 12 Water Act);

5.2.2 being liable for improper use of water and flow of water (sections 15 and 16 Water Act);

5.2.3 establishing water resources assessment programs (section 23 Water Act);

5.2.4 being liable for offences in relation to the unauthorised taking and use of water from a waterway or bore (section 63 Water Act);

5.2.5 being liable for offences in relation to activities affecting waterways including unauthorised obstruction, construction of works, interference with works, erosion or damage to surrounds, construction or alteration of bores and failure to comply with conditions of licences issued under section 67 of the Water Act (section 75 Water Act);

5.2.6 disposing of matter underground by means of a bore (section 76 Water Act);

5.2.7 ensuring compliance with various ministerial directions and powers (sections 78, 79, 80(3), 80(4) and 81 Water Act);

5.2.8 complying with provisions relating to the reduction, restriction or discontinuance of water supply (section 141 Water Act);

5.2.9 being liable for waste and misuse of water supply (section 143 Water Act);

5.2.10 being liable for offences relating to unauthorised connections to a Water Corporation’s works (section 145 Water Act);

5.2.11 being liable for offences relating to unauthorised structures over works (section 148(1) Water Act);

5.2.12 ensuring compliance with provisions in relation to removal of trees, notices of repair, notices of contravention, notices in relation to works and determination of disputes (sections 149, 150, 151, 153 and 154 Water Act);

5.2.13 ensuring it protects sewers (section 178 Water Act);

5.2.14 liability for interference with water works and control over connections and discharges (sections 194 and 195 Water Act);

5.2.15 being liable for drainage water diversions and control (section 200 Water Act);



Part 1 7

5.2.16 ensuring compliance in regards to control of works within drainage areas (section 208);

5.2.17 ensuring protection of drainage courses (section 218);

5.2.18 charging of properties (sections 265, 268, 269, 270 and 281 Water Act); and

5.2.19 interfering with Water Corporation property and uncovering works (sections 288 to 290 Water Act).

6 GOVERNANCE

6.1 Board of Directors

6.1.1 Water Corporations have a Board of Directors and a Managing Director.

6.1.2 Each Water Corporation must have a Board of Directors consisting of not less than 2 and not more than 9 directors. In the case of Melbourne Water and each metropolitan water corporation, the members of the Board are appointed by the Minister in consultation with the Treasurer. In the case of non-metropolitan water corporations, the Board Members are appointed by the Minister alone.

6.1.3 The Board of Directors is responsible for the strategic planning of the Water Corporation, the management of the affairs of the Water Corporation, and may exercise the powers of the Water Corporation.

6.1.4 All Board members, other than the Managing Director, are appointed on a part time basis for a period not exceeding four years, and may be remunerated, with the maximum level of remuneration not to exceed that set by the Minister in consultation with the Treasurer for Melbourne Water and the metropolitan water corporations and as set by the Minister for non-metropolitan water corporations.. The Managing Director is appointed for a period not exceeding 5 years, and can be employed on a full time basis.

6.1.5 Board members must have relevant qualifications and experience.

6.1.6 Under certain circumstances, the Managing Director may be removed by the Board. Members can only be removed by the Minister. For Melbourne Water and metropolitan water corporations the Minister can only remove Board members after consultation with the Treasurer.

6.1.7 All Boards must have a Chairperson and a Deputy Chairperson (not including the Managing Director).

6.1.8 The Board of Directors may by resolution allow members of the Board to enter into contracts of insurance in respect of activities undertaken by Directors or members of the Board.

6.1.9 All Board Directors must submit, within 30 days of appointment, a “primary return”, which generally contains relevant financial information about interests of the Board member that may be relevant to the



Part 1 8

exercise of their duties as a Board member. Water Corporations must maintain a register of the information supplied in the primary returns, which may be inspected upon request, in writing, by interested persons.

6.1.10 Schedule 17 of the Water Act sets out the transitional arrangements for the former licensees transitioning into the metropolitan water corporations. Clause 3 of Part 3 of Schedule 17 provides that each person who was a Director of a former licensee is deemed to be a member of the Board of Directors of the new relevant metropolitan water corporation and the following provisions apply:

(a) A person’s period of membership of a Board is taken to be the period that expires on the same date for the appointment of the person as a Director of the former licensee .

(b) The same terms and conditions that applied to the Director apply.

(c) The persons who occupied the positions of Chairperson, Deputy Chairperson and Managing Director of a former licensee , retain their positions.

6.2 Meeting procedures

6.2.1 The Board of Directors of a Water Corporation must hold at least one ordinary meeting every 3 months.

6.2.2 Decisions are made on the basis of the majority of the votes cast, with the presiding director to have the casting vote.

6.2.3 Subject to various provisions of the Water Act, the Board of Directors may regulate its own procedures.

6.2.4 Meetings are presided by the Chairperson, Deputy Chairperson or other elect.

6.2.5 Members may participate by telephone, closed circuit TV or other electronic means.

6.2.6 Minutes of each meeting must be taken and kept and they must record the names of those present and the relevant votes.

6.2.7 Special meetings of the Board may be held with 2 days notice served upon the Board members, or earlier by agreement.

6.3 Official seal and execution clauses

6.3.1 All Water Corporations must ensure that execution clauses are appropriate and up to date.

6.3.2 Water Corporations will need an official seal. The official seal of each Water Corporation must be kept in the custody of the Water Corporation and must not be used, except as authorised by the Water Corporation.



Part 1 9

6.4 Delegations

6.4.1 Section 122B of the Water Act provides the powers of delegation for Water Corporations. A Water Corporation may by an instrument, under its official seal delegate any function, power or duty of the Water Corporation to:

(a) a member of the Board of Directors or other officer by name or holder of the office;

(b) a committee established by the Water Corporation, the members of which are members of the Board of Directors or other officers; or

(c) any other person with the consent of the Minister.

6.4.2 The power of delegation does not include:

(a) the power of delegation (in other words all delegations must be done by the Water Corporation);

(b) the power to make by-laws;

(c) any other powers so prescribed (there are none for the time being).

6.4.3 There appear to be no transitional provisions for delegations for the former licensees. It would be prudent for all delegations to be made under the Water Act for the metropolitan water corporations.

7 FUNCTIONS, POWERS, DUTIES AND OBJECTIVES OF WATER CORPORATIONS

7.1 The functions, duties and objectives of Water Corporations include:

7.1.1 Part 6B Duties:

(a) A Water Corporation must enter into a customer dispute resolution scheme approved by the ESC. (An old dispute resolution scheme applying to a former licensee is taken to be a dispute resolution scheme for the purposes of section 123ZG of the Water Act.

(b) Each Water Corporation must pay to the State such dividend as determined by the Treasurer.

(c) Each Water Corporation must prepare an annual financial report and include the details under section 122ZJ of the Water Act.

7.1.2 Part 6C - Storage Managers.

7.1.3 Part 7 - General Powers

Generally, a Water Corporation under the Water Act has the power to do all things that are necessary or convenient to be done for or in connection with, or incidental to, the performance of its functions and no other provision of the Water Act that confers a power, limits this general



Part 1 10

power. There are, however, a number of other specific powers listed in Part 7 of the Water Act and these include:

(a) The power to enter into contracts (section 126).

(b) The power to enter commercial ventures (section 127).

(c) The power to hold intellectual property, with the Minister's approval (section 129).

(d) The power to compulsorily acquire land (section 130).

(e) The power to enter into leases and licences of land and undertake other dealings with land (section 132).

(f) The power to enter onto land (section 133).

7.1.4 Other specific powers in relation to the relevant area of the Water Corporation's control:

(a) Water supply (Part 8).

(b) Sewerage (Part 9).

(c) Waterway management (Part 10).

(d) Irrigation (Part 11).

7.1.5 Other Parts of the legislation deal with such matters as bulk water entitlements, licensing of bores, finance and accountability, enforcement and other general matters.

7.1.6 Schedule 7 of the Water Act sets out the transitional provisions in relation to the changes brought about the by Water Amendment (Governance and Other Reforms) Act 2012. Where these affect the former licensees, this is mentioned in Part 2 of this Manual.

8 DISTRICTS AND AREAS OF INTEREST

8.1 In general terms, the power of a Water Corporation to operate, is based upon the fact that it seeks to carry out a function within a designated district under the Water Act. Districts will have existed from the time of creation of the particular Water Corporation.

8.2 For the metropolitan water corporations, districts were established by the Water Amendment (Governance and Other Reforms) Act 2012 and are specifically set out in sections 122IA, 122IB and 122IC of the Water Act.

8.3 Section 15 of the Water Amendment (Governance and Other Reforms) Act 2012 inserted a new Division 1AA into Part 6A of the Water Act. This new Division 1AA allows the Minister to create, vary or abolish water and sewerage districts. A Ministerial determination made under this Division 1AA will override any existing water or sewerage district created before that determination. Before any determination is made by the Minister, he or she must consult with the relevant Water Corporation.



Part 1 11

8.4 A determination:

8.4.1 must be specified by reference to a plan or plans lodged at the Central Plan Office;

8.4.2 must be published in the Victoria Government Gazette; and

8.4.3 takes effect from the date specified in the determination which is no earlier than the date of the publication in the Victoria Government Gazette.

8.5 A Water Corporation will not be able to make, change or extend any water or sewerage district following a determination made by the Minister. A Water Corporation will still be able to propose the establishment, change or extension of a water or sewerage district under the existing provisions until the Minister makes a new determination under Division 1AA. Over time, it is plausible that all water and sewerage districts will become contiguous.

8.6 Areas of interest provisions in the Water Act have been repealed, except to the extent that the old areas of interest will continue to apply to a Water Corporation being a referral authority under the Planning and Environment Act 1987.

8.7 No changes were made to the irrigation and waterway management districts.

9 ACCESS TO WATER

9.1 Introduction

9.1.1 In this section 9, references to Water Corporations relate to the rural corporations, or as indicated, the urban rural corporations, or, in some cases, in relation to waterway management, they may apply to Melbourne Water. If the reader is in any doubt in relation to these issues, specific legal advice should be obtained.

9.1.2 In general, it is an offence against the Water Act to take or use water without authorisation (see sections 33E, 63, 64J, 64K of the Water Act). Penalties include fines and imprisonment.

9.1.3 The various forms of authorisation underwent changes with the amendment to the Water Act by the Water (Resource Management) Act 2005. The main forms of authorisation that now exist may be summarised as follows:

(a) Bulk water entitlements.

(b) Stock and domestic.

(c) Water licences under section 51 (regulated and unregulated waterways).

(d) Water shares.

(e) Water use licences and water use registrations.



Part 1 12

(f) Groundwater diversion licences.

(g) Water rights in an irrigation district.

9.1.4 Water shares, water use licences and water use registrations were introduced by the Water (Resource Management) Act 2005 as part of the ‘Our Water Our Future’ Victorian Government policy to unbundle water rights. The second reading speech, to that Act, states that the new system was introduced in recognition that an irrigator's water right or diversion licence is actually a bundle of different types of entitlements and obligations that could be better managed when separated into three individual components. These individual components are:

(a) a secure share of water available from a water system, (water share);

(b) a right to use the water on a particular piece of land, (water-use licence (irrigation) / water use registration (non irrigation); and

(c) for irrigators who obtain their water from a channel system, an assurance that they will receive a defined volume over a defined period (delivery obligation).

9.1.5 The changes require a transitional phase, and for this reason, Schedule 15 has been inserted into the Water Act which sets out in some detail the transitional changes.

9.1.6 Among other things, Schedule 15 provides that on the conversion day (ie, the day the Minister declares a system to be a declared water system), water rights and stock and domestic rights will be substituted with a water share, a water use licence, and the service to the land.

9.1.7 The water share is an entitlement to take water from the water supply, while the water use component permits persons to use the water they have taken on land.

9.1.8 The provisions of the Water Act with respect to water shares, and, therefore, the unbundling process, depend upon whether the Minister has declared that a water system is a declared water system. The power to make that declaration is found at section 6A of the Water Act.

9.1.9 Water entitlements or regulated water systems in northern Victoria were unbundled on 1 July 2007. Water entitlements on the Werribee, Bacchus Marsh and Macalister/Thomson regulated water systems were unbundled on 1 July 2008. Unbundling does not apply to groundwater, unregulated waterways or recycled water.

9.2 Right to water

9.2.1 The Crown has the right to the use, flow and control of all water in a waterway and all groundwater (section 7(1)).



Part 1 13

9.2.2 A person has the right to take water, free of charge, for that person’s domestic and stock use from a waterway or bore to which that person has access:

(a) by a public road or public reserve;

(b) because that person occupies the land on which the water flows or occurs;

(c) in the case of a waterway, because that person occupies land adjacent to it and the bed and banks of the waterway have remained the property of the Crown; and

(d) in the case of a bore, because that person occupies it (section 8(1)(d)).

9.2.3 With some exceptions set out in section 8 of the Water Act, a person has the right to use (as opposed to take):

(a) water from a waterway or bore;

(b) water taken or received by that person in accordance with a licence or other authority issued to that person under the Water Act;

(c) water lawfully taken or received by that person from the works of a Water Corporation; or

(d) rainwater or other water that occurs or flows (otherwise than in a waterway or bore) on land occupied by that person, or with the permission of another person, on land occupied by another person. This water may be used for any purpose on any land except where it is water from a spring, soak or dam unless such water is from rainwater from the roof of a building in which case, water can only be used for domestic and stock use.

Note: Items (c) and (d) above do not apply to the use, other than domestic and stock use, of water from a spring or soak or water from a private dam (to the extent that it is not rainwater supplied to the dam from the roof of a building).

9.2.4 The term “domestic and stock use” is defined in section 3(1) of the Water Act to mean:

“domestic and stock use, in relation to water, means use for—

(a) household purposes;

(b) watering of animals kept as pets;

(c) watering of cattle or other stock;

(d) in the case of the curtilage of a house and any outbuilding, watering an area not exceeding 1.2 hectares for fire prevention



Part 1 14

purposes with water obtained from a spring or soak or water from a dam; or

(e) irrigation of a kitchen garden,

but does not include use for dairies, piggeries, feed lots, poultry or any other intensive or commercial use.”

9.2.5 The term “waterway” is defined by section 3(1) of the Water Act and means:

“(a) a river, creek, stream or watercourse;

(b) a natural channel in which water regularly flows, whether or not the flow is continuous;

(c) a channel formed wholly or partly by the alteration or relocation of a waterway as described in paragraph (a) or (b); or

(d) a lake, lagoon, swamp or marsh, being:

(1) a natural collection of water (other than water collected and contained in a private dam or a natural depression on private land) into or through or out of which a current that forms the whole or part of the flow of a river, creek, stream or watercourse passes, whether or not the flow is continuous; or

(2) a collection of water (other than water collected and contained in a private dam or a natural depression on private land) that the Governor in Council declares under section 4(1) to be a lake, lagoon, swamp or marsh; or

(e) land on which, as a result of works constructed on a waterway as described in paragraph (a), (b) or (c), water collects regularly, whether or not the collection is continuous;

(f) land which is regularly covered by water from a waterway as described in paragraph (a), (b), (c), (d) or (e) but does not include any artificial channel or work which diverts water away from such a waterway; or

(g) if any land described in paragraph (f) forms part of a slope rising from the waterway to a definite lip, the land up to that lip…”.

9.3 Bulk water entitlements

9.3.1 A bulk entitlement is the legal instrument that gives a Water Corporation the right to harvest water.



Part 1 15

9.3.2 Division 1 of Part 4 of the Water Act regulates bulk water entitlements. This Division applies to:

(a) any Water Corporation that has a water supply or irrigation function;

(b) a generation company within the meaning of the Electricity Industry Act 2000;

(c) the Minister administering the Conservation Forests and Land Act 1987; and

(d) the Victorian Environment Water Holder (see section 34(1A) of the Water Act),

(referred to in this part of the Manual as “Authorities”).

9.3.3 Section 9 of the Water Act provides that the Authorities have the right to take the amounts of water that are made available to it under a bulk entitlement or any other entitlement, licence or right under the Water Act.

9.3.4 The Authorities may use the water in accordance with the terms of the entitlement.

9.3.5 Section 36 of the Water Act sets out the procedure for applications by Authorities for a bulk water entitlement. Applications must also be made for amendment, transfer or conversions of entitlements.

9.3.6 Section 36 provides that an Authority may apply to the Minister for the grant of a bulk entitlement to:

(a) water in a waterway including the Murray;

(b) groundwater;

(c) water, other than recycled water, in any works of another Authority;

(d) water, other than recycled water, in any works of a Water Corporation; and

(e) any other water, other than recycled water, to which an Authority has access.

9.3.7 The Minister must forward a copy of an application to:

(a) the Minister administering the Conservation, Forests and Lands Act 1987;

(b) the Minister administering the Planning and Environment Act 1987; and

(c) any public statutory body which the Minister considers may be directly affected.



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9.3.8 The Minister, in assessing the application:

(a) may require notification to other parties;

(b) may require further information from the applicant;

(c) may appoint a panel of persons to consider the submissions; and

(d) must in making a final decision in relation to the application, consider a report of the panel and also a wide variety of matters set out in detail in sections 40(ab) to (o), including the need to protect the environment, including the riverine and riparian environment, and any matter appropriately fit to have regard to.

9.3.9 The Minister may refuse or approve an application. The Minister must not approve the application unless he considers that the allocation of water under the entitlement is not likely to have any significant impact in terms of the matters required to be considered and given effect to under section 40. One of these matters is to ensure that there is enough water to maintain the environmental water reserve in accordance with the environmental water reserve objectives (see section 25 of this Manual for further information on the environmental water reserve).

9.3.10 Sections 44A and 44B of the Water Act were inserted by the Water (Resource Management) Act 2005. Section 44A provides that a bulk entitlement granted to an Authority under Division 1, may be amended by the Minister by removing from the entitlement any water that is set aside for the environment through the operation of a condition on the entitlement. Section 44B provides that on application by an Authority to which a bulk entitlement has been granted, the Minister may cancel the entitlement and allocate an environmental entitlement under Division 1A either for an equivalent volume or on equivalent terms and conditions specified in the bulk entitlement.

9.3.11 Notably, there are no appeal provisions available for a decision of the Minister in relation to applications for amendment to bulk water entitlements.

9.3.12 There are a range of other provisions in relation to bulk water entitlements which are summarised below.

(a) The transfer of bulk entitlement to any one person in whole or in part. An Authority cannot transfer the bulk entitlement without approval of the Minister. The Minister cannot transfer the whole or part of a bulk entitlement held by the Water Holder unless the Minister has first obtained the consent of the Environment Minister.

(b) The conversion of existing entitlements to take water into a bulk water entitlement (section 47).

(c) An obligation to comply with the terms of an entitlement, with a failure to do so resulting in an offence and penalty of up to 200 penalty units and 80 penalty units for each day the offence continues (section 47A).



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(d) The conversion of licences or water shares under section 51 to bulk water entitlements (section 47C).

(e) The Minister may sell unallocated water (section 47D).

(f) The Minister may make rules relating to bulk entitlements as follows (section 47E):

(1) With respect to adjustment of volumes to be applied to transfers of bulk entitlements.

(2) As to the circumstances in which the consent of any Authority under the Water Act will be required to any such transfers.

(3) As to any matters relating to applications for such transfers.

(4) As to the circumstances in which the Minister will give or refuse to give approvals for such transfers.

(5) As to any other matters the Minister is authorised to make rules for.

9.3.13 The “Rules for Assigning Water Allocations under Primary Entitlements” was gazetted on 14 October 2010. These rules only apply until 30 June 2013.

9.4 Section 51 take and use licences

9.4.1 Section 51 licences remain forms of statutory authorisations under the Water Act, given water shares and water use licences under Part 4B of the Water Act only operate in declared water systems.

9.4.2 Section 51 provides that a person may apply to the Minister for the use of a licence to take and use:

(a) water from a waterway including the Murray;

(b) groundwater;

(c) water from a spring or soak or dam (to the extent that it is not rainwater supplied to the dam from the roof of a building or a waterway or bore) for use other than stock and domestic use;

(d) water, other than recycled water from any works of a Water Corporation; or

(e) water, other than recycled water from a Water Corporation.

9.4.3 Section 51(1AA) of the Water Act provides that an application must not be made to take and use water in a declared water system unless the water to be taken and used is subject to a condition that a proportion of the water so taken and used is to be returned to the water system.



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9.4.4 The term “waterway” is discussed in paragraph 9.2.5 of this Manual and for the purpose of section 51, it also includes any collection of water which is from time to time replenished in whole or in part by water coming from a natural sub-surface path from a waterway.

9.4.5 When issuing such a licence, the Minister must have regard to the matters set out in section 53 of the Water Act. These matters are intended, among other things, to reduce the likelihood of over allocation of resources and harm to river health.

9.4.6 The Minister may refuse an application, or grant it. Conditions can be imposed on a licence as set out under section 56 and there are specific appeal rights to VCAT set out under section 64 in relation to any refusal or conditions imposed.

9.4.7 Licences can be sold, renewed, amended, revoked, surrendered, or transferred (permanently or temporarily). There are broad discretions to deal with such applications. Section 64 of the Water Act provides for rights of appeal.

9.4.8 With respect to transfers, section 62 of the Water Act provides:

(a) on the transfer or conveyance of land, a registration licence is deemed to be transferred to the successor in title;

(b) with Ministerial approval, a permanent or temporary transfer may be made to an owner outside Victoria;

(c) if the application is likely to have, in the Minister’s opinion, an adverse effect on the maintenance of the environmental water reserve, the Minister must refuse the transfer;

(d) a licence may be transferred even if the water is to be used in an irrigation district; and

(e) the holder of the licence has the power to sell the licence at auction, by tender or in any other manner the holder thinks fit.

9.5 Rule making power for section 51 licences

9.5.1 New section 64AAA of the Water Act provides that the Minister may set out rules:

(a) with respect to adjustment of volumes to be applied to transfers of licences issued under section 51;

(b) as to the circumstances in which the consent of any Authority under the Water Act will be required to transfer licences under section 51;

(c) as to any matters relating to applications for transfers; and

(d) as to the circumstances in which the Minister will give approvals for transfers.



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9.5.2 As at October 2012, no rules appear to have been made under section 64AAA. However, the Trading Rules for Declared Water Systems (made under sections 33AZ and 64AZ of the Water Act) also apply to transfers of section 51 licences. Among other things, these provide that trades may only be approved if they are in the same trading zone or from a trading zone near the original zone pursuant to the formula set out in those rules.

9.6 Water shares

9.6.1 Water shares were introduced into the Water Act as a result of the enactment of the Water (Resource Management) Act 2005. As noted above, these types of entitlements exist in areas declared by the Minister to be declared water systems.

9.6.2 A “water share” is an entitlement to a defined share of the water available for consumption in a declared water system. A water share authorises the taking of water allocated in respect of that share under a seasonal allocation. In conceptual terms, a water share may be seen as the “taking” aspect of a section 51 take and use licence.

9.6.3 A water share will be given an identification number, which identifies the water system to which the share relates. The water share identification number is what is inserted on the various forms in respect of dealings with that water share.

9.6.4 On the date a system is declared a “declared water system”, Schedule 15 of the Water Act deems that the holder of water entitlements on regulated water systems (section 51 take and use licences, domestic and stock rights and water rights in irrigation districts), are deemed to be the holder of a water share and a water use licence.

9.6.5 Water shares specify the share of water available (expressed as a maximum volume over a period) and the class of reliability.

9.6.6 In relation to the share of water and the class of reliability, the Minister has issued conversion rules (“Conversion Rules”) for regulated water systems in northern Victoria and southern Victoria.

9.6.7 In respect of the class of reliability, the Conversion Rules indicate that:

(a) a low reliability share will be allocated from any ‘sales water,’ offered to irrigators each year in addition to their base entitlement; and

(b) water shares created from section 51 take and use licences, water rights and domestic and stock rights, will be high reliability (ie, it should not vary from year to year and is expected in all but the worst of droughts).

9.6.8 In respect of the share of water available, the Conversion Rules specify a formula for calculating the water share from the prior water right/stock and domestic right/section 51 take and use licence. The process is explained in detail in the Conversion Rules.



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9.6.9 Section 33U of the Water Act sets out the persons that a water share may be assigned to. They include the holder of a bulk entitlement, the occupier of land to which a water licence or water use registration applies, the Environment Minister and the Victorian Environmental Water Holder.

9.7 Water use licences and water use registrations

9.7.1 Part 4B of the Water Act is titled "Water-Use Licences and Water Use Registrations". This Part gives the Minister the power to grant water use licences to an owner of land that authorises the use of water for irrigation, or a water use registration that authorises the use of water for purposes other than irrigation.

9.7.2 From the date a system is declared a declared water system, for a person to use a water share, that person will need to hold a water use licence or a water use registration. If a person has an existing section 51 take and use licence, as noted earlier, the transitional provisions under Schedule 15 of the Water Act provide that that person is deemed to hold a water use licence under Part 4B. If the person occupies a serviced property in an irrigation district under Part 11 of the Water Act, that person is also deemed to be the holder of a water use licence.

9.7.3 The Minister has determined “standard water use conditions” in consultation with relevant CMAs.

9.7.4 Conditions determined by the Minister may include the maximum volumes of water that may be applied under the water use licence, requirements to minimise impacts of use of water, the way the water is to be used, drainage from land, monitoring and reporting requirements and any other matter that the Minister thinks fit. In respect of water use licences that derive from take and use licences, Schedule 15 of the Water Act deems that these licences are subject to the same conditions as those that applied prior to the date a system is declared a declared water system.

9.7.5 The Minister may also impose other conditions on licences.

9.7.6 The Minister also has the power to suspend, vary, revoke or cancel licences. One of the main grounds for revoking or suspending a water use licence is failure to comply with its conditions. Water Corporations will need to carefully monitor compliance with conditions of water use licences. Conditions may include maximum volume of water per hectare that may be applied, requirements to minimise environmental impacts and drainage.

9.7.7 As with many of the powers of the Minister, the powers set out in Part 4B of the Water Act will be delegated to the relevant rural water corporation.



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9.8 Water right - irrigation districts

9.8.1 Section 222 of the Water Act imposes a duty upon a Water Corporation within an irrigation district to provide the service of delivering water to the owner or occupier of each serviced property in its irrigation district.

9.8.2 Section 223 of the Water Act requires a Water Corporation to determine the volumes and period for delivery of water for irrigation or stock and domestic use. Clause 4 of Schedule 15 of the Water Act provides that the holder of a prior water right or stock and domestic right in an irrigation district is “deemed to be entitled to the service of having water delivered” at the rate determined immediately prior to the conversion day.

9.8.3 Importantly, the Water Corporation is not required to provide the service of delivery of water unless the person is the holder of a water use licence or water use registration or neither the owner nor occupier of the land has a water allocation (section 222(3)).

9.9 Transfers of water shares

9.9.1 Water shares may be transferred to other parties. The following is a basic overview of the steps involved in the transfer of a water share:

(a) A transaction commences with the buyer and seller agreeing on a volume and price.

(b) The buyer and seller jointly seek approval from the Water Corporation by lodging the appropriate approved form for the transfer with the application fee. Water Corporations need to keep hardcopies of the forms. In relation to transfers, the relevant forms are:

(1) limited term transfer of water share;

(2) transfer of water share;

(3) surrender of limited term transfer; and

(4) transfer of water share by mortgagee.

(c) Legal personal representatives can also complete the forms on behalf of their clients, by using the “application by legal personal representative in respect of water share” form.

(d) If the water share is subject to a mortgage, the mortgage will need to be discharged and the “discharge of mortgage of water share” form completed.

(e) In respect of all transactions, it is necessary to insert the water share identification number into the form.



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(f) Water Corporation staff must check the Water Register (see paragraph 9.12 of this Manual for more information on the Water Register) to ensure that trading rules allow the transaction.

(g) If approved, the parties can settle the transaction.

(h) The Water Corporation must issue a transfer document with the relevant information recorded in the document.

(i) The buyer or seller (or mortgagee if applicable) should request the Water Registrar to record the transaction by lodging the transfer with the Water Registrar. This request must be registered within 2 months of the Water Corporation’s (if delegated) approval. Previous mortgages should be discharged and the buyer will obtain the new allocation after the date of recording. Until recorded, the vendor will continue to get the allocation.

9.9.2 Key points to note include:

(a) Where there is a sale of land, there will be a need to make special provision in the contract of sale for the transfer of the water share or, enter into a separate contract for the transfer and sale of the water share.

(b) Given Ministerial consent is required for the sale or transfer, parties may need to allow for an increase in the amount of time for the overall transaction. As Ministerial consent expires after 2 months, mortgagees will need to act promptly in giving their consent.

(c) Only 10% of the water in a declared water system may be allocated through water shares to persons who do not own land in the system.

(d) Where land is subdivided:

(1) a new water use licence will be required for each new lot; and

(2) the water share will be apportioned between the subdivided lots.

(e) On the date a system is declared a declared water system, in respect of mortgages over land with a water right of over 5ML, Schedule 15 of the Water Act provides that the relevant Water Corporation must notify the owner that the deeming provisions under clause 26 of Schedule 15 “should” apply. These provisions deem that the mortgage over land will cover the water share. In relation to water rights less than 5ML, a mortgage on land will not automatically cover a water share. Accordingly, a new mortgage may be needed in respect of the water share.



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(f) On the date a system is declared a declared water system, caveats over land will not be able to be recorded against the relevant associated water share.

9.9.3 Volumes of water and periods for which water is to be delivered may be transferred in an irrigation district (section 226).

9.9.4 When making a decision to transfer a water right in an irrigation district, the relevant Water Corporation must have regard to “any conditions determination” that it has previously made (section 226(6)).

9.10 Delivery of water

Section 227 of the Water Act provides that a Water Corporation can make determinations in relation to conditions that can be imposed on delivery of water.

9.10.1 The conditions specified in a condition determination may include any of the following matters:

(a) rules for restricting delivery as a result of insufficient capacity in the works of the Water Corporation;

(b) the circumstances in which the Water Corporation will agree with an owner to provide a different level of service to a serviced property;

(c) methods by which disputes as to the interpretation or operation of the determination may be settled; and

(d) any other matter or thing that is, in the opinion of the Water Corporation, necessary for the service to be delivered.

9.10.2 A Water Corporation’s conditions determination must be published or made available by the Water Corporation.

9.11 Variation of statutory water entitlements

9.11.1 Water entitlements may be varied as set out below.

(a) Section 64AG provides the Minister with the power to vary a water use licence by imposing a new condition on the licence or by amending an existing condition on a licence. Section 64AJ provides the Minister with the power to suspend, revoke or cancel a licence. These powers would normally be exercised in relation to water shortages, although there is no express requirement that this be the case. Similar powers to vary water use registrations are set out at Division 10 of Part 4B. In relation to variations of a water use licence or a water use registration, a person may apply for review of the Minister’s decision to VCAT.

(b) Bulk entitlements may be varied on application of the Water Corporation to the Minister (section 64G).



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(c) In relation to water shares pursuant to the Minister’s powers under Part 3A.

(d) If the Minister declares that a water shortage exists in an area, he or she may temporarily qualify any rights to water that exist (section 33AAA). Section 33AAB provides that the Minister may permanently qualify rights to water.

(e) Revocation of take and use licence for non-compliance - section 60.

(f) According to the conditions of the entitlement.

(g) Pursuant to the Water Corporation’s general powers under section 141 where the Water Corporation believes there is insufficient capacity to supply the water; or the variation is necessary to prevent future water shortages; or the quality of supply does not meet standards for the use; or private works of supply are inadequate or ill maintained; or the person has contravened the Water Act or failed to pay moneys owing. Any such decision may be reviewed by VCAT.

(h) If the entitlement exists in an irrigation district, a Water Corporation may vary either or both the volumes at which and periods for which water is to be delivered to a property by:

(1) exercising powers under sections 224 or 225, which basically involves varying the entitlement in accordance with its conditions (there is no statutory right for review to VCAT where the variation is made pursuant to a determination under sections 224 or 225); or

(2) using its general powers to vary, reduce, restrict or discontinue delivery of water under section 231. This power may be exercised where, among other things: there is insufficient capacity to deliver the water; where the water user has private works which do not conform with the regulations, or are not in the Water Corporation’s opinion properly constructed or maintained; or the owner has failed to pay money due to the Water Corporation. If this general power is exercised, the affected owner may apply to VCAT for review of the decision.

9.12 Water Register

9.12.1 The Victorian Water Register (“Water Register”) is now established and records the details of all water use licences and registrations, bulk entitlements, environmental entitlements, works licences and the recording of amounts of water to be allocated to each water share.

9.12.2 The Water Register may be searched at: https://www.landata.vic.gov.au/tpc/.

https://www.landata.vic.gov.au/tpc/



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9.12.3 Information recorded on the Water Register in respect of a water share includes:

(a) the name and address of the owner of the share and any other party with a recording in respect of that share (eg, a mortgagee);

(b) a description of the water system for which the share is issued;

(c) the maximum volume of water available from the water system under the water share;

(d) the class of reliability of the water share; and

(e) the details of the land associated with the water share (where applicable).

9.12.4 Information recorded on the Water Register in respect of a water use licence includes:

(a) the name and address of the holder of the licence;

(b) a description of the land specified in the licence;

(c) the conditions to which the licence is subject; and

(d) any annual use limit.

9.12.5 Information recorded in respect of a works licence will include:

(a) the name and address of the holder of the licence;

(b) a description of the land specified in the licence;

(c) a description of the works;

(d) the conditions to which the licence is subject; and

(e) the period specified in the licence.

9.12.6 Water Corporations are responsible for maintaining the Water Register and making recordings on the Water Register. This responsibility includes, in relation to water delivered to properties in an irrigation district:

(a) the name and address of each serviced property;

(b) the volumes and periods for which the Water Corporation delivers water;

(c) any terms and conditions that apply to the property; and

(d) any water allocation assignment and any consumption of allocated water in a water system for which the Water Corporation is responsible.



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9.12.7 The applicable fees associated with dealing with water shares are set out in the Water (Resource) Management Regulations 2007.

9.12.8 As at October 2012, a water share record search is $23.90 and an instrument search is $12.50.

9.13 Water supply agreements

9.13.1 Water supply agreements are an extensive topic that are only dealt with in summary in this Manual. The following is an overview of the law in relation to water supply agreements.

9.13.2 All Water Corporations can supply water by agreement.

9.13.3 In the majority of cases, the provision of water supply does not require a separate written agreement between the Water Corporation and the customer. There are, however, certain circumstances where a specific written agreement is necessary or appropriate, these include:

(a) agreements to supply water outside a water district;

(b) agreements to supply water to properties which are not declared as serviced;

(c) agreements to supply either partially treated or raw water (ie, water which is not for drinking or food preparation); or

(d) agreements associated with a major supply (often to significant enterprises) where the size or nature of the arrangements justify a separate written agreement.

9.13.4 The relevant Customer Service Codes must be referred to when preparing any such agreement.

9.13.5 A carefully prepared water supply agreement is a risk management tool. An agreement can establish the rights and obligations (and liabilities) of the respective parties. In many cases where the water supply (drinking or non-drinking) is to an individual dwelling, perhaps on a small farm or large residential lot, or even where the supply is to a relatively small business, a standard agreement will be appropriate.

9.13.6 Some situations may call for a specialised agreement These situations include:

(a) where the water quantity is very significant;

(b) where there are specialist uses to which the relevant water is to be put;

(c) where there are major pieces of infrastructure to be constructed either by the Water Corporation or by the potential customer;

(d) where the Water Corporation is seeking some special financial contribution.



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9.13.7 The Food Act 1984 and the Safe Drinking Water Act 2003, make it crucial that a Water Corporation does not supply non-drinking water in cases where the Water Corporation:

(a) either does not know the final proposed use of the water supply; or

(b) is aware (despite provisions in any agreement to the contrary) that the landowner is likely to use, or is using, the relevant water for drinking or food preparation purposes.

9.13.8 As noted above, a proposed water supply outside of the water district of a Water Corporation requires the consent of the Minister administering the Water Act. The relevant power has been delegated to the Secretary of the DSE.

9.13.9 Many water supply agreements relate to supply outside the water district of the particular regional Water Corporation. These are commonly referred to as “out of district agreements”.

9.13.10 In the case where the customer must carry out certain works, an agreement should indicate that the Water Corporation’s responsibility is to provide the water supply to the acceptance point and that, after that, it is the customer’s responsibility to provide the balance of the works.

9.13.11 It may be that the parties want to specifically detail the works, in which case this can be inserted via a special condition. For example, the special condition might indicate:

(a) a general description of the works;

(b) when the works are to be completed;

(c) what contribution (if any) the Water Corporation might make to those works; and

(d) a plan or specification of the works might be attached.

9.13.12 Alternatively, there may be a situation where the Water Corporation is to undertake some works and those may also be detailed via a special condition.

9.13.13 There is limited ability to cease supply. Legal advice should be obtained. Certainly, a customer has the right to stop taking the water supply subject to safe disconnection and payment of all monies.

9.13.14 One interesting complication with supply by agreement (particularly out of district) is that often the by-laws of a Water Corporation will not apply unless the Water Corporation has been careful in the drafting of its by-laws to make that a specific provision. There are some Water Corporations which have done this, and some which have not.

9.13.15 The Water Amendment (Governance and Other Reforms) Act 2012 introduced clause 36 of Part 4 of Schedule 17 to the Water Act. This clause provides that from 1 July 2012, an agreement entered into by a



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Water Corporation for the purpose of water supply services or sewerage services before 1 July 2012, is taken to have been validly entered into whether or not the consent of the Minister was obtained to the entering into of the Agreement.

10 CUSTOMER DISPUTE RESOLUTION – PART 6B

A Water Corporation that has a water, sewerage or irrigation district must enter into a customer dispute resolution scheme approved by the ESC. More information on this is set out in Part 3 of this Manual.

11 WATER STORAGE – PART 6C

11.1 General

The Minister may appoint an authority (ie, generally a Water Corporation) to carry out any of the functions of a water storage manager.

11.2 Functions of water storage manager

The functions of a water storage manager relate to the control and management of water storage on land in a manner that is consistent with the Water Act and that will maintain the water quality of any water stored on land.

12 GENERAL POWERS – PART 7

12.1 Contracts

A Water Corporation has the power to enter into contracts with another Water Corporation, a government department or any other statutory body with respect to:

12.1.1 the exercise of the Water Corporation’s functions;

12.1.2 the carrying out of any works or services; or

12.1.3 the joint use of respective facilities and staff.

12.2 Commercial ventures

A Water Corporation may, with the approval of the Minister:

12.2.1 form a company, trust or partnership;

12.2.2 hold and dispose of shares; and

12.2.3 carry on or engage in any business transaction in or outside the State which is capable of being conducted to directly or indirectly benefit the Water Corporation.

12.3 Acquisition of land

12.3.1 The Water Act is designated a “Special Act” for the purposes of the Land Acquisition and Compensation Act 1986. (This Act is dealt with in Part 5 section 69 of this Manual and should be consulted if issues arise in



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relation to it.) The relevant provisions of the Water Act in relation to this Act are sections 23, 130, 135 149, and 155.

12.3.2 Section 130 of the Water Act gives Water Corporations the power to compulsorily acquire land or an interest in land (including an easement). The Water Corporations’ former licensees did not have compulsory acquisition powers, unless the Minister is persuaded to act on their behalf.

12.3.3 If any land acquired by the Minister in accordance with the Land Acquisition and Compensation Act 1986 and old Section 55 of the Water Industry Act 1994, on behalf of a former licensee is, immediately before 1 July 2012, held by the Minister for that purpose, on 1 July 2012, the land is taken to be vested in the relevant metropolitan Water Corporation.

12.3.4 In acquiring land or interests in land, the Water Corporation is required to comply with the obligations under the Land Acquisition and Compensation Act 1986. With some exceptions, a Water Corporation must not actually acquire land unless it first arranges for a planning scheme amendment to apply a public acquisition overlay to the land it wishes to acquire.

Important exceptions to this include the acquisition of easements. However, this exception only applies if the total value of the interest to be acquired is less than ten per centum of the value of the unencumbered freehold interest in the total area of the allotment (see regulation 6(ii) Land Acquisition and Compensation Regulations 2010.

12.3.5 Special provisions apply to a Water Corporation in relation to the acquisition of interests in land where the Crown is involved. In general terms, this requires the Crown, through DSE, to be notified.

12.4 Entry of land

12.4.1 Section 133 of the Water Act gives an officer or an authorised officer of a Water Corporation the power to enter land for the purposes of:

(a) reading a meter installed under section 142 (section 133(1)(a));

(b) inspecting and measuring any septic tank system (section 133(1)(b));

(c) inspecting any works and making tests to find out whether the Water Act or its regulations are being complied with (section 133(1)(c)); or

(d) carrying out any other function under the Water Act (section 133(1)(d)).

12.4.2 Section 133(2) provides that an officer or authorised person of a Water Corporation may enter land and carry out on that land any works the Water Corporation is empowered to carry out, provided the Water



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Corporation has given 7 days notice in writing to the occupier of that land.

12.4.3 Notice under section 133(2) is not required if the occupier consents to the entry and works, or in an emergency.

12.4.4 An officer of a Water Corporation or an authorised person must not enter any land under section 133(1)(c) if the land is used primarily for residential purposes, unless:

(a) the officer or authorised person gives 7 days’ notice in writing of the entry to the occupier of the land; or

(b) the entry is by an officer who is an authorised water officer who is entering under a warrant issued under section 291E; or

(c) the occupier consents to the entry.

12.4.5 An officer of a Water Corporation or an authorised person must not enter land under section 133(1(d) if the land is used primarily for residential purposes, unless:

(a) the officer or authorised person gives 7 days’ notice in writing to the occupier of the land;

(b) the occupier consults to the entry;

(c) it is an emergency; or

(d) the officer or authorised person is performing a function under section 221(a).

12.4.6 Land that is used primarily for residential purposes must not be entered under sections 133(1)(a), (b) or (d) between the hours of 6.00pm and 7.30am unless:

(a) the occupier consents; or

(b) the entry is an emergency.

12.4.7 For entry required under section 133(1)(c), if the land is used primarily for residential purposes, the occupier must consent to entry between 6.00pm and 7.30am or the entry must be authorised by a warrant between those hours.

12.4.8 A Water Corporation has obligations in relation to the entry onto land, which are set out in section 134 of the Water Act. An officer or authorised person must cause as little damage as possible, not stay on the land any longer than is reasonable, remove plant and equipment and cooperate with the owner and occupier as much as possible.

12.4.9 Importantly a Water Corporation is now liable for nuisance or any other injury done in acting under section 133 as section Section 134(2) was repealed on 1 July 2012.



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12.4.10 Section 135 of the Water Act indicates that the powers of entry under section 133 are in addition to the powers granted under the Land Acquisition and Compensation Act 1986.

12.4.11 One issue has been whether a Water Corporation may enter land to carry out works (eg, the laying of pipes), effectively acquiring an interest in that land, without first going through the processes detailed under the Land Acquisition and Compensation Act 1986. On balance, the preferred view seems to be yes. However, the matter is not certain and there are no definitive court decisions in this regard.

13 SEARCH WARRANTS

13.1 The Water Amendment (Governance and Other Reforms) Act 2012 made several amendments to the powers of entry under section 133 of the Water Act. One of these changes was to allow entry onto premises that are used primarily for residential premises with a search warrant. (See previous paragraphs in this Manual on powers of entry.)

13.2 The search warrant process is set out in Division 3 of Part 14 of the Water Act dealing with Enforcement.

13.3 These entry with warrant powers are to be given to authorised water officers who are officers of an Authority (that is, an employee of an Authority defined in the Water Act, ie, Water Corporations including Melbourne Water who have been appointed as authorised water officers in accordance with section 291A of the Water Act).

13.4 Generally the search warrant provisions are as summarised below. Please note that legal advice should be obtained before seeking a search warrant to ensure that the process is conducted appropriately.

13.4.1 An authorised water officer may apply to a Magistrate for the issue of a search warrant for matters pertaining to section 133(1)(c) and the land is used primarily for residential purposes.

13.4.2 The Magistrate may issue a search warrant in accordance with the Magistrates’ Court Act 1989, if the Magistrate is satisfied by the evidence of the authorised water officer (on oath or by Affidavit), that it is necessary to issue the warrant for (one of) the purpose/s set out in section 133(1)(c).

13.4.3 Division 3 of Part 4 of the Magistrates’ Court Act 1989 applies to the issuing of warrants. In particular, subdivision 5 applies to search warrants.

13.4.4 A search warrant issued under section 291E of the Water Act authorises the authorised water officer named in the warrant to:

(a) enter the land on one occasion and if necessary on one more occasion;

(b) enter with assistance (ie, the police);

(c) enter with force if entry being made with police;



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(d) inspect works, make tests and seize evidence; and

(e) take any action necessary to collect evidence of an offence including taking photos and taking samples of water.

An authorised officer has no powers of arrest.

13.4.5 Before executing a search warrant, the authorised water officer must announce that he or she is authorised to enter the land by warrant and give the person an opportunity to allow entry. The authorised water officer need not comply with this requirement if he or she believes on reasonable grounds that immediate entry to land is required to ensure the safety of any person or that the effective execution of the warrant is not frustrated.

13.4.6 If the occupier is present (or if the occupier is not present but another appropriate person is present) when entry is executed, the authorised water officer must identify himself/herself and give a copy of the warrant to the occupier.

13.4.7 The authorised water officer may seize any thing not mentioned in the warrant if he or she believes on reasonable grounds that the thing is of a kind that could have been included in or seized under the warrant and that will afford evidence of the commission of an offence and that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the commission of an offence.

13.5 Ordinarily, a search warrant will require the seized items to be brought before a court to be dealt with according to law.

The appropriate form for a search warrant is Form 20 (see Rule 33 of the Magistrates’ Court Criminal Procedure Rules 2009.

13.6 Management of Crown land

13.6.1 Section 131 of the Water Act indicates a Water Corporation may, by way of an order published in the Victoria Government Gazette (pursuant to conditions), be given the management and control of certain Crown land.

13.6.2 Further, by an order in the Victoria Government Gazette, the Crown may resume Crown land placed under the management of a Water Corporation and that is required for any public purpose or for any public highway.

13.6.3 A Water Corporation may (subject to Governor in Council approval) surrender Crown land and such land upon that surrender becomes unalienated Crown land (section 131(3)(4)).

13.7 Other dealings with land

13.7.1 A Water Corporation may (in relation to its functions):

(a) enter into a lease or licence over land;



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(b) grant leases and licences or easements over its land; and

(c) sell any land by public auction or tender.

13.7.2 Note that any purchase or disposal of land may be subject to the Government Land Monitor Policy on the Purchase, Compulsory Acquisition and Sale of Land, August 2000 (see section 70 Part 5 of this Manual).

13.8 Subdivisional easements and reserves

13.8.1 When a subdivision is referred to it, a Water Corporation has the power pursuant to section 136 of the Water Act to require the creation of easements and reserves for the purposes of pipes, channels, carriageway, waterway management or drainage. Water Corporations should be familiar with the Water (Subdivisional Easements and Reserves) Regulations 2011 in relation to the creation of reserves and easements.

13.8.2 A Water Corporation may also require a planning permit applicant to enter into an agreement under section 173 of the Planning and Environment Act 1987 or section 17(2)(c) of the Subdivision Act 1988. It is important to note that section 173 agreements require the relevant municipal council to be a party. Accordingly, in the case of subdivisions, it is often preferable to use a section 17(2)(c) agreement, as the parties can be limited to a Water Corporation and the planning permit applicant.

13.9 Works

13.9.1 Closing of roads

(a) Under section 137, a Water Corporation may enter upon a road (as defined in the Road Management Act 2004) for the purpose of carrying out works that the Water Corporation is empowered to carry out.

(b) A Water Corporation can also temporarily close to traffic a road or any part of it, if it is necessary for it to do so for the purpose of carrying out works under paragraph (a).

(c) Section 137 is subject to the Road Management Act 2004. Further, functions of Water Corporations in relation to road works are set out in Part 10 section 134 of this Manual dealing with the Road Management Act 2004.

13.9.2 Ownership of works

Section 138 of the Water Act provides that a Water Corporation is deemed to be the owner of all works it constructs or has constructed. The exceptions to this are:

(a) where a Water Corporation carries out works on behalf of another public body;



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(b) the owner or occupier of land are not owned by the Water Corporation if the Water Act provides; or

(c) the parties agree that the works are not owned by the Water Corporation.

13.9.3 Abandonment of major works

(a) Sections 139 to 139E provide that a Water Corporation must not abandon or decommission any of its “major works”:

(1) without the Minister's approval;

(2) before causing a notice of the proposal to be published in a newspaper circulating generally in the area to which the proposal relates, and in the Victoria Government Gazette; and

(3) without considering any submissions made on the proposal.

(b) What are “major works” is to be considered by the Minister and the Water Corporation should obtain any guidelines the Minister issues in relation to what this is. There are no guidelines as at October 2012, but the second reading speech for the Water (Governance) Bill 2006 indicates that these provisions are intended to apply to the decommissioning of major dams. Further, in D’Agostino and Anor v Goulburn Murray Rural Water Corporation [2011] VSC 668], Emerton J confirmed this position.

(c) The Minister may impose conditions on any approval given in respect of the abandonment or de-commissioning of such works.

13.9.4 Works licences

(a) These are established under Part 5 of the Water Act. A Water Corporation or any other person may apply to the Minister for a licence to construct, alter, remove or decommission any works on any waterway or a bore. Under section 75, a person who obstructs or interferes with a waterway, or constructs, alters, operates etc, works on any waterway, without authorisation, is guilty of an offence.

(b) The Minister has issued a policy for managing take and use licences which was updated on 21 September 2010.

13.10 Reducing, restricting or discontinuing water supply

Under section 141 of the Water Act, a Water Corporation has specific powers to reduce, restrict and in certain cases discontinue the supply of water to any person if, among other things:

13.10.1 the Water Corporation is, because of a shortage of water or for any other unavoidable cause, unable to supply the quantity of water which would otherwise be supplied to the person;



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13.10.2 the Water Corporation reasonably believes that the reduction, restriction or discontinuance is necessary:

(a) to avoid future water shortages;

(b) because there is insufficient capacity in the distribution works of the Water Corporation for the Water Corporation to meet its obligations under the Water Act to supply and deliver water to the person;

13.10.3 the quality of water available for supply does not meet the standards for its intended authorised use;

13.10.4 any private works for the supply of water to the person:

(a) are, in the opinion of the Water Corporation, inadequate or not properly constructed or maintained and a notice to repair has been issued under section 150 and not complied with by the time specified or allowed under that section;

(b) do not, in the opinion of the Water Corporation, comply with the regulations;

(c) where the person has contravened the Water Act, the regulations or the Water Corporation's by-laws in relation to the misuse of water supplied to the person by the Water Corporation;

(d) where the person has contravened the Water Act, the regulations or the Water Corporation's by-laws in relation to the taking of water;

(e) where the person has refused entry to an authorised officer who intended to exercise powers conferred on them by or under the Water Act to investigate any suspected contravention referred to in paragraph (c) or (d); or

(f) where the person has refused or failed to pay any money due to the Authority for the supply or delivery of water to the person.

13.10.5 A person may apply to VCAT for a review of the decision to discontinue supply (section 141(7)).

13.10.6 It is important to note that the powers apply in relation to water entitlements under the Water Act. It is not always clear whether these powers apply where the entitlement is established by private agreement between the Water Corporation and a water user. In such cases, the appropriate response would be to review the terms of the relevant agreement and seek legal advice on whether the entitlement under the relevant agreement can be reduced, discontinued or varied.

13.10.7 A Water Corporation must not discontinue the supply of drinking water to a person merely because the person has refused or failed to pay any money due to it.



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13.10.8 Despite section 141, Melbourne Water must continue to supply water to the holder of a bulk entitlement and any other person prescribed by the Regulations (as at October 2012 none are prescribed).

13.11 Water meters

Section 142 of the Water Act provides that a Water Corporation may (therefore it is discretionary) provide a water meter to a particular piece of land. It is questionable whether a person can actually demand that they be supplied with a new or different meter, for example individual units within an owners corporation or individual caravans within a caravan park site may seek such separate metering. However, it seems clear a Water Corporation has a fair degree of flexibility in dealing with such requests. Section 142 also provides that a Water Corporation may make appropriate estimates of water supply to a property if that water meter is considered to be inaccurate. Meters remain the property of the Water Corporation.

13.12 Waste and misuse of water supply

13.12.1 By section 143, a person who receives a supply of water must not:

(a) waste that water after receiving a warning notice to that effect;

(b) use water for purposes other than the purposes specified in any water supplied by agreement; or

(c) use the water for a different purpose if it is supplied for domestic and stock purposes.

13.12.2 This can result in fines and potentially imprisonment.

13.13 Service to properties

13.13.1 The vexed question of when is a property a serviced property, arises regularly. Section 144 creates the procedure with which Water Corporations can declare land to be a serviced property. Once a property is a serviced property, the Water Corporation has powers to require connection to that Water Corporation's sewerage system.

13.13.2 Many properties will already be deemed serviced properties pursuant to the definition of a serviced property in section 3(1) of the Water Act. In effect, this provides that properties that were already serviced properties under the predecessor legislation of the Water Act or Sewerage Districts Act 1958 are deemed to be serviced properties under the Water Act.

13.13.3 By virtue of section 144 of the Water Act, properties will also be serviced properties if the Water Corporation has made provision for:

(a) water supply to the land in a water district;

(b) sewerage service to the land in a sewerage district;

(c) irrigation of the land or for drainage of salinity irrigation services in an irrigation district; or



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(d) regional drainage or floodplain management services of direct benefit to the land in a waterway management district.

13.13.4 Declaration of newly serviced properties under section 144 of the Water Act requires notice to be served on the owner of the land, published in a newspaper and sent to the municipal council affected. The notice must:

(a) define the locality to which it applies;

(b) in the case of land within a water district or a sewerage district, specify the services available;

(c) generally identify the properties to which the services are available (or which are within the waterway management district) and which are directly benefited by regional drainage or floodplain management services or are within an irrigation district and for which irrigation, drainage or salinity mitigation services have been made available; and

(d) fix a date from which the land must be taken to be a serviced property.

13.13.5 Water Corporations have the right to levy tariffs on serviced properties. It is therefore important that care be taken to ensure that section 144 is complied with. A question that sometimes arises is whether individual lots created by a subdivision of a previously serviced broad acre property, are automatically serviced properties, or whether they need to be newly declared. The appropriately cautious view is that all new lots should be declared as serviced.

13.13.6 Following from section 144, once a property is serviced, section 147 of the Water Act allows a Water Corporation to require an owner to connect that property to the Water Corporation's sewerage system or require the owner of a serviced property to remove any existing connection and any works of the Authority or to carry out any work that the Authority considers necessary for the provision of a service of the Authority to the property.

13.13.7 If Water Corporations require an owner of a serviced property to connect the property to sewerage works, it must give written notice to the owner and specify in that notice the time within which the requirement must be carried out. However, a Water Corporation must not issue a Notice to connect until such time as it has:

(a) consulted with the EPA and the Secretary to the Department of Health; and

(b) formed the opinion that the connection is necessary to avoid an adverse impact on the environment.

13.13.8 Any person served within a notice may appeal the requirement to connect to sewerage to VCAT.



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13.14 The issuing of information statements and notices of disposition

13.14.1 Water Corporations will be called upon to produce information statements under section 158 of the Water Act which will be relied upon by vendors and purchasers in the sale and purchase of land. Importantly, there is case law to indicate that a certificate issued by a Water Corporation to a vendor can be relied upon by a purchaser. When issuing an information statement, the Water Corporation must take great care to indicate all outstanding charges over that property otherwise a purchaser who takes ownership without appropriate notice can avoid the payment of any monies which are not properly disclosed.

13.14.2 Any encumbrances, other than those which would be disclosed at the Office of the Registrar of Titles (in relation to Transfer of Land Act 1958) or at the Office of the Registrar General (in relation to old or general law land), must be disclosed. Encumbrances include:

(a) proposals to acquire land;

(b) build over agreement; and

(c) conditions of connection under section 145 of the Water Act.

13.14.3 Notably, if a Water Corporation fails to disclose a particular charge, it could encounter difficulties if it sought to recover that charge from the vendor as the vendor is no longer the owner of the land. Rights of recovery against the purchaser may also be lost because that purchaser would have purchased the property without the appropriate notice.

13.14.4 Water Corporations have the right to provide information beyond that which is expressly required (see section 158(4) of the Water Act). No liability attaches for such additional information provided in good faith (section 158(6)). Having said that, it remains appropriate for Water Corporations to include a disclaimer in information statements despite this statutory protection.

13.14.5 Section 159 of the Water Act requires a prescribed person to give notice to a Water Corporation of the disposition of land. There is a penalty for a failure to do this. Upon receipt of such notices, the Water Corporation must take steps to amend its records appropriately. Failure to do so may result in the loss of the capacity to recover any relevant charges.

13.14.6 A “prescribed person” is a person who, according to regulation 4(a) of the Water (Notice of Disposition of Land) Regulations 2010, disposes of land in respect of which a fee has been imposed under section 259 of the Water Act by a Water Corporation.

13.14.7 Section 259 is the tariffs section of the Water Act. All tariffs are subject to the consideration of the relevant Price Determination.



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13.15 Other powers in relation to Water Corporation works

There are a range of other powers which need to be considered in relation to works of a Water Corporation most notably:

13.15.1 A person may not, without the Water Corporation's consent, connect to any works of a Water Corporation (section 145). A Water Corporation may impose conditions on this consent, which are binding on successors in title. Decisions to refuse a consent, grant a consent, or issue a consent with conditions, are decisions that are appealable to VCAT.

13.15.2 It is an offence to divert surface water from one catchment into another where that may result in water entering the works of a Water Corporation (section 146).

13.15.3 A person must not, without the Water Corporation’s consent:

(a) cause or permit any structure to be built or any filling to be placed, on land over which an easement exists in favour of the Water Corporation, or where an easement exists for water supply, sewerage or drainage purposes (section 148(1)(a));

(b) build a structure within 1 metre laterally (5 metres for Melbourne Water) of any works of a Water Corporation unless consent of the Water Corporation is obtained (section 148(1)(b)(ii)).

13.15.4 Often Water Corporations provide written consent to “build over”. The terms and conditions of such consents are binding on subsequent owners of the property. Care needs to be taken in drafting such consents in order to properly protect the Water Corporation and retain its right to work on Water Corporation’s works whilst limiting obligations for compensation.

13.15.5 Section 148(1) of the Water Act does not apply to road authorities if it is necessary for the road authority to do anything referred to in that sub-section for the purpose of constructing a road or conducting maintenance or repair works on a road.

13.15.6 A Water Corporation may, by notice in writing, require the owner of any property to remove any tree on that property if the Water Corporation reasonably decides that the tree is obstructing or damaging the Water Corporation’s works or that it is likely to obstruct or damage them (section 149(1)).

13.15.7 If the tree required to be removed is not on land over which an easement exists in favour of the Water Corporation or where an easement exists for water supply, sewerage or drainage purposes, the Water Corporation must pay the appropriate compensation to the owner of the property in accordance with the Land Acquisition and Compensation Act 1986 (section 149(2)).

13.15.8 Some Water Corporations have queried whether the terms of an easement should include restrictions in the planting of trees in an easement. Legal advice may be sought in particular situations,



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however, there may be conceptual problems with including restrictions on planting trees in an easement. Such a restriction is probably more in the nature of a covenant, and a restrictive covenant is a different legal concept to an easement.

13.15.9 Care should be taken in removing a tree that planning permission or any other permission (such as a local law permit) is not required.

13.15.10 A Water Corporation may serve a notice to carry out repair works on a person, or serve notices of contravention on persons who contravene the Water Act, by-laws, licence conditions or requirements of approved management plans for groundwater supply protection areas. The Water Corporation itself, may enter onto land to carry out works and recover the costs if there is a refusal to comply with the notice of contravention.

13.15.11 The procedures that a Water Corporation must follow, to undertake works which will affect the works of another Authority or a public statutory body, are set out in section 152 of the Water Act. Where a Water Corporation requires another Water Corporation or public body to alter or remove works where required by proposed works, the Water Corporation may serve a notice requiring the Water Corporation or public body to alter or remove the works (section 153).

13.15.12 Disputes arising out of notices given under these sections are to be resolved in accordance with section 154. It should be noted that a Water Corporation may not require an owner of land to do any repair or maintenance work that a plumbing inspector could, under Part 12A of the Building Act 1993, require a plumber to do under a rectification notice or plumbing notice order.

13.16 Compensation for damage

13.16.1 Section 155 of the Water Act provides that a Water Corporation must cause as little damage and inconvenience as possible in carrying out its functions. The Water Corporation will be liable to compensate any person who has:

(a) sustained any pecuniary loss; or

(b) incurred any expense,

as a direct, natural and reasonable consequence of the performance of its functions.

13.16.2 A Water Corporation will not be liable to compensate a person for consequential loss.

13.16.3 Section 155(4) states that a claim for compensation must be made and dealt with in accordance with section 47(1) of the Land Acquisition and Compensation Act 1986.

13.16.4 Given that section 155 of the Water Act refers to a particular section of the Land Acquisition and Compensation Act 1986, it is worth setting out



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that provision in full. Section 47(1) of the Land Acquisition and Compensation Act 1986 states:

“Any person with an interest in land that has been entered or temporarily occupied pursuant to Part 9 who has -

(a) sustained any pecuniary loss; or

(b) incurred any expense -

as a direct, natural and reasonable consequence of that entry or occupation may claim the amount of that loss or expense from the Authority”.

13.16.5 While there is scant case law on section 155, it would appear that the section is limited to loss as a result of the entry or occupation of land and is not as broad as section 155(1) may suggest. This, however, has yet to be judicially considered. Notably, section 155 does not apply if section 157 applies.

14 WATER SUPPLY - PART 8

14.1 Pursuant to section 122G of the Water Act, Water Corporations have the same water districts their predecessor authorities had immediately before 1 July 2007. Accordingly, the now repealed Schedule 12 of the Water Act can be referred to in order to ascertain whether a particular Water Corporation has a water district, although that Schedule will over time become redundant given the recent changes to district creation and variation by the Water Amendment (Governance and Other Reforms) Act 2012. The urban rural Water Corporations also have water districts and are similarly provided powers and responsibilities under Part 8 of the Water Act.

14.2 Part 8 of the Water Act (sections 162 to 171A inclusive) details specific powers available to Water Corporations with a water district. Sections 171B to 171 applies to Melbourne Water specifically.

14.3 In general terms, a Water Corporation that has a water district has certain functions set out under section 163 of the Water Act and is obliged to perform its functions in an environmentally sound way. These functions include, in addition to the general obligations of the provision, management and protection of water supply, an obligation to identify community needs, develop and implement programs, investigate or promote research, and to educate the public about water supply.

14.4 Section 164 of the Water Act allows Water Corporations with water supply districts to exercise powers outside their district, provided they first obtain Ministerial approval.

14.5 A municipal council may require a Water Corporation to fix fire plugs to any works of the Water Corporation within the water district at fire fighting locations. Municipal councils are to bear the costs of this. Water Corporations can install additional plugs should they believe it appropriate but the Water Corporation itself is then obliged to bear the cost of same, unless they are requested by land owners for such work and can then recover the cost from the land owner by agreement. No charge may be made by a Water Corporation in respect of water taken for fire fighting



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purposes from a fire plug fixed to its works, but a Water Corporation can impose a reasonable charge in respect of water taken to clean sewers and drains.

14.6 An officer of a Water Corporation may enter land for the purposes of water supply protection, but the officer must comply with sections 133 and 134 in relation to entry, including notices and reinstatement of the land (section 167).

14.7 A Water Corporation may take immediate action to protect water supply from any substance or impurity (section 168).

14.8 There is a power under section 169 of the Water Act to issue a notice of contravention in relation to water supply protection which may require the discontinuance of a particular activity or removal of a substance or thing. Section 151 of the Water Act sets out the procedure for the giving of a notice of contravention for breach this section 169.

14.9 Section 170A of the Water Act requires Water Corporations to prepare permanent water savings plans. A person who receives a supply of water from a Water Corporation, must not contravene a restriction or prohibition on the use of that water contained in a permanent water saving plan.

14.10 Section 171 provides that Water Corporations within a water district may make by-laws with respect to regulating or restricting or prohibiting the use of water.

14.11 If there is an inconsistency between a water savings plan and a by-law, the by-law prevails.

15 SEWERAGE SUPPLY - PART 9

15.1 Sections 172 to 184 (inclusive) of the Water Act relate to sewerage supply for Water Corporations. Sections 184A and 184B apply to Melbourne Water.

15.2 These provisions basically set out the functions of a particular Water Corporation with a sewerage district and allow a Water Corporation to act outside its sewerage district with the approval of the Minister.

15.3 Pursuant to section 122G of the Water Act, Water Corporations have the same sewerage districts their predecessor authorities had immediately before 1 July 2007. Accordingly, the now repealed schedule 12 of the Water Act should be referred to in order to ascertain whether a particular regional Water Corporation has a sewerage district. Note that this schedule will eventually become redundant as a result of the recent changes to districts in Division 1AA of Part 6A by the Water Amendment (Governance and Other Reforms) Act 2012.

15.4 The term “sewage” is defined in section 3(1) of the Water Act to mean “any human excreta or domestic waterborne waste, whether untreated or partially treated, but does not include trade waste”. Trade waste is dealt with in section 23 of this Manual and septic tank issues are dealt with in section 24 of this Manual.

15.5 Water Corporations have the power to construct new sewers, which includes an obligation to serve a notice of the commencement of construction of those works on owners and occupiers and to publish a notice to that effect in a relevant newspaper. Notably, a person has the capacity to object to such a proposal and a Water Corporation must not commence works until it considers all submissions made to it.



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Submissions must be made within 14 days of the date of publication. The Water Corporation may not commence construction until after it has considered the submissions or 14 days after it has served the notice. Notably, these provisions can be avoided if there is specific consent (section 175).

15.6 Section 176 of the Water Act provides that Water Corporations are not liable to pay compensation for damage caused in the course of works to provide a sewer that is necessary for the proper sewerage of allotments unless the damage is to buildings and the Water Corporation fails to repair such damage. The exemption is limited by section 176(2), and this should be consulted in a particular case.

15.7 Section 177 of the Water Act provides special powers to enter land to test waste and fittings and take samples in relation to such waste.

15.8 Section 178 of the Water Act states that a person must not cause or permit anything to be discharged into the sewerage system of a Water Corporation unless:

15.8.1 it is sewage; or

15.8.2 it is discharged in accordance with a trade waste agreement.

Penalties include fines of up to 200 penalty units and for a continuing offence an additional penalty of 80 penalty units per day for each day on which the offence continues. Section 178 states that it does not apply where the discharge is such that it would constitute an offence under the Environment Protection Act 1970. A strong argument could be made that virtually any event would be a breach of this very broad piece of legislation.

16 WATERWAY MANAGEMENT - PART 10

16.1 General

16.1.1 Part 10 of the Water Act relates to “authorities” with waterway management districts. These are basically the CMAs, Melbourne Water and the rural water corporations.

16.1.2 In this section of this Manual, bodies with waterway management districts will be referred to as “Waterway Management Authorities”.

16.1.3 The term “waterway management” in this Part means the management of waterways, drainage or floodplains.

16.1.4 It should also be noted that from time to time other bodies may have waterway management functions. For example, the statutory body known as Parks Victoria created under the Parks Victoria Act 1998 also has waterway management powers.

16.1.5 A Waterway Management Authority must only exercise its functions inside a declared waterway management district. If it proposes to exercise its powers outside a declared waterway management district, it must obtain the Minister's approval (section 186 Water Act).



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16.1.6 The Minister may issue a statement of obligations specifying any applicable obligations in relation to Waterway Management Authorities performing their functions and exercising their powers.

16.2 Designated waterways

16.2.1 A Waterway Management Authority (other than Melbourne Water) may declare a waterway or part of it within its district as a designated waterway or declare certain land or works to be designated land or works (section 188 Water Act).

16.2.2 Such a declaration requires a notice in writing including:

(a) publication in the Victoria Government Gazette;

(b) publication in a newspaper circulating generally in the area where the designated waterway or land and works are located;

(c) adequate description of the designated waterway, land or works; and

(d) specifying the Waterway Management Authority and management district in question.

16.2.3 A person whose interests are affected by a declaration may apply to VCAT for a review of the decision.

16.2.4 In the case of Melbourne Water, the Water Act provides that any waterway that is within the waterway management district of Melbourne Water is a designated waterway.

16.2.5 The declaration of waterways as designated waterways has a number of important town planning implications. Often, planning schemes provide that a person must obtain a planning permit to carry out works or use land within a certain distance from a designated waterway, and a section 55 referral under the Planning and Environment Act 1987 to the relevant Waterway Management Authority is triggered by the planning scheme.

16.3 Functions of Waterway Management Authorities

16.3.1 The functions of Waterway Management Authorities are set out in section 189 of the Water Act.

16.3.2 One of the changes to the Water Act now requires that a Waterway Management Authority maintain the environmental water reserve in accordance with the environmental water reserve objectives.

16.3.3 A Waterway Management Authority that has a waterway management district must:

(a) prepare a regional waterway strategy for its district;



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(b) prepare, for each water season, seasonal proposals for the application or use of water in the Victorian Environmental Water Holdings.

16.4 Access to waterways

16.4.1 Section 193 of the Water Act provides that a Waterway Management Authority may close off either permanently or for a specified time, access by people, animals or vehicles to designated waterways, land or works.

16.4.2 Access must not be closed off to:

(a) Water Corporations or public statutory bodies requiring access to carry out their functions;

(b) any person who needs access in order to exercise rights under a licence under Part 4 (use licence) or Part 5 (works licence) of the Water Act; or

(c) any person who holds a declared bulk entitlement.

16.4.3 A Water Corporation must not close access to the owner of any land where any works or part of any works in or over which water occasionally flows or any land which abuts a waterway or is within 20 metres of a waterway unless the owner has consented to the closure or VCAT has, on the application of the Water Corporation, dispensed with the need to obtain the owner’s consent.

16.4.4 A Water Corporation must publish, 1 month before closing any access, a notice of its intention in a newspaper circulating generally in the area and consider all submissions received as a result of that notice (section 193(8) Water Act).

16.4.5 A person whose interests are affected by a decision to close access may apply to VCAT to review the decision of the Water Corporation to close access. There are deadlines for such applications which must be considered in section 193(7A) of the Water Act.

16.4.6 This section however does not apply to the closure of roads under section 137 of the Water Act or section 62 of the Water Industry Act (section 193(8) Water Act).

16.4.7 Section 194 of the Water Act states that any designated land or works may not be interfered with or dealt with without the Waterway Management Authority's consent. Exemptions apply to Water Corporations holders of bulk water entitlements and other public statutory authorities carrying out their own works.

16.4.8 Section 195 of the Water Act provides that a person must not, without the Waterway Management Authority’s consent, permit drainage works to be connected, or alter or remove any drainage works in relation to a designated waterway or designated land or works. Exemptions apply for Water Corporations or public statutory authorities. Where a Water Corporation or public statutory authority intends to do works which would



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otherwise breach section 195, it must consult with the relevant Waterway Management Authority.

16.5 Regional drainage

16.5.1 A Waterway Management Authority may, in addition to having a waterway management district, have a regional drainage area.

16.5.2 A regional drainage area must be declared under section 198 of the Water Act, be in writing and published in the Victoria Government Gazette.

16.5.3 If the regional drainage provisions apply (Water Act, Division 3, Part 10), the particular Waterway Management Authority has functions in relation to the operation and protection of the regional drainage systems, including the drainage of water into all designated waterways, land and works.

16.5.4 A person must not, without the relevant Waterway Management Authority’s consent, permit the diversion of drainage waters within a regional drainage district. Penalties for a first offence are fines of up to 20 penalty units or imprisonment for up to 3 months and for subsequent offences, penalties increase to 40 penalty units or imprisonment for 6 months.

16.5.5 A public statutory authority must first notify the relevant Waterway Management Authority if it wishes to divert drainage waters in the regional drainage district. If any dispute arises, the matter is referred to the Minister for resolution pursuant to section 154 of the Water Act.

16.6 Flood plain management

16.6.1 Division 4 of Part 10 of the Water Act relates to flood plain management. The functions and powers of the section relate to Melbourne Water and any other Authority that has a waterway management district and a body that the Minister declares to be flood plain management authority. In the absence of such a declaration, the Minister has the powers and responsibilities set out in section 201 of the Water Act.

16.6.2 A Waterway Management Authority, other than Melbourne Water, has the following functions (as well as any function set out in an order by the Minister):

(a) to investigate flood water issues;

(b) to declare flood levels;

(c) to declare building lines;

(d) to control developments that have occurred or that may be proposed for land adjoining waterways;



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(e) to minimise flooding and flood damage; and

(f) to provide advice about flooding and controls on development to municipal councils.

16.6.3 Floodplain managers are usually CMAs. Referrals for development in flood prone areas are required to go to CMAs under the relevant planning schemes.

16.6.4 Melbourne Water has similar functions as set out in section 202(2) of the Water Act.

16.6.5 A Waterway Management Authority may declare a flood level in relation to a specified area or a flood fringe area, or a building line in relation to either side of a designated waterway or land or works. Such a notice of intention must first be published in the Victoria Government Gazette, in the local newspaper and allow 6 weeks for submissions which the Waterway Management Authority must take into account before making any decision.

16.6.6 The Minister may also, by order published in the Victoria Government Gazette, declare any area to be an area of land liable to flooding or a floodway area. Such a declaration can only be made at the request of a Waterway Management Authority.

16.6.7 A person who is aggrieved by a declaration, revocation or variation may apply within 1 month after publication of same to the Minister for review.

16.6.8 A Waterway Management Authority will not be liable for any losses sustained as a result of an order under section 203 or section 205 of the Water Act (section 211 Water Act).

16.7 Works and structures in flood areas

16.7.1 Section 208 of the Water Act provides that a person (other than a public statutory body) must not, without the Waterway Management Authority’s consent, erect structures that may have the effect of changing flood waters, discharging stormwater (excluding tidal water) concentrating or diverting flood water or stormwater, in a floodway area or on land liable to flooding.

16.7.2 Also, a person must not build any works or structures between a building line and a designated waterway without consent.

16.7.3 The penalties for breach of this section is for a first offence 20 penalty units and imprisonment for 3 months and a penalty of 40 penalty units and imprisonment for 6 months for subsequent offences.

16.7.4 Public statutory bodies are exempt from the need for consent, but must advise the Waterway Management Authority with flood plain management functions, of the intention to erect structures that may have the effect of changing flood waters etc. Any dispute in relation to same can be referred to the Minister for resolution under section 154 of the Water Act.



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16.7.5 A Waterway Management Authority has further power to demand an owner remove existing works and structures from a flood area. An owner must comply, or may within 60 days of service of the notice, appeal to VCAT for review of the Waterway Management Authority's demand. Notably, VCAT may make an order of compensation for any request to demolish.

16.8 Waterway management schemes

Division 5 of Part 10 of the Water Act details the method by which waterway management schemes can be proposed, modified and put into operation. Relevant provisions include:

16.8.1 the appointment of a committee to carry out investigations including membership, notification to municipal councils and public statutory bodies and the like (section 214 Water Act);

16.8.2 completion of the investigation and completion of a report in relation to same, preparation of a waterway management scheme and the requirements of a notice of same (section 215 Water Act);

16.8.3 the capacity of a party to appeal to VCAT against such a proposal (section 215 Water Act);

16.8.4 the process of approval of a waterway management scheme (section 216 Water Act); and

16.8.5 the capacity of the relevant Waterway Management Authority or municipal council responsible for the waterway management scheme to apply to VCAT to seek the modification of works which effectively interfere with the relevant scheme (section 217 Water Act).

16.9 Drainage courses

Section 218 of the Water Act provides that the Minister may make a declaration that an area of land is a drainage course. The power applies to areas along which water flows either continuously, intermittently or occasionally, or anywhere where there are designated works (as defined in section 188 of the Water Act). Various issues and requirements in relation to this include:

16.9.1 the Minister may make the declaration on the application of the relevant authority or public statutory authority that is responsible for drainage or related functions in that area;

16.9.2 the applicant must first publish the proposal in the Victoria Government Gazette, newspaper generally in the area and invite submissions within 6 weeks of publication of that notice;

16.9.3 the Minister must consider all submissions and after considering same undertake an appropriate publication process also set out in section 218. Thereafter, a management plan is put in place and all parties must comply with that management plan;



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16.9.4 Waterway Management Authorities or public statutory bodies, having management and control of a particular drainage course, may give a notice in writing to a land owner or occupier to carry out certain works such as removal of obstructions, etc, and the relevant party has the right to appeal such an order or direction to VCAT; and

16.9.5 a Waterway Management Authority, or public statutory body, where an owner refuses to carry out certain works, may first serve the appropriate notice under section 151 of the Water Act (ie, notice of contravention). If the owner fails to comply, the Waterway Management Authority may enter onto the owner's land and carry out certain works itself and thereafter recover the cost of such works as a debt due and payable from the owner.

16.10 By-laws

Section 219 of the Water Act allows Waterway Management Authorities to make by-laws both in accordance with sections 160 and 161 of the Water Act and specifically in relation to the items set out under section 219. These include:

16.10.1 preventing or minimising interference with or obstruction of the flow of water;

16.10.2 preventing or minimising the silting up of a designated waterway or designated land or works or any injury to or pollution of it or them, including prohibiting the deposit of any material in or near it or them; and

16.10.3 the general management and control of any designated waterway, land or works.

17 IRRIGATION POWERS - PART 11

17.1 Part 11 of the Water Act allows a Water Corporation with a declared irrigation district to operate with the powers and subject to the obligations of Part 11 of the Water Act.

17.2 Pursuant to section 122G of the Water Act, relevant Water Corporations have the same irrigation districts as their predecessor authorities had immediately before 1 July 2007.

17.3 The functions of Water Corporations with irrigation districts are generally: to provide and operate irrigation systems; identify community needs in relation to same; develop and implement programs for approved irrigation practices; and investigate and research matters related to those functions. Those powers may be exercised outside the Water Corporation's irrigation district with the Minister's consent.

17.4 There are a number of positive obligations on Water Corporations that have irrigation districts. These include that the Water Corporations:

17.4.1 must provide the service of delivering water to the owner or occupier of each serviced property in its irrigation district:

(a) for the purpose of irrigation; and

(b) for stock and domestic use,



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at the volumes and for the periods that are determined by the Water Corporation in accordance with Part 11;

17.4.2 may provide the service of delivering water to the owner or occupier of any property in its irrigation district; and

17.4.3 may sell water the Water Corporation owns or is authorised to take and use under a bulk entitlement to the owner or occupier of any land, whether within or outside its irrigation district.

17.5 The services mentioned above and provided by an irrigation Water Corporation may be provided on any terms and conditions that are set out in a determination of the Water Corporation.

17.6 A Water Corporation is not required to provide the service of delivering water to the owner or occupier of land if the owner is not the holder of a water-use licence or water-use registration or neither the owner nor the occupier of the land has a water allocation.

17.7 A Water Corporation under section 231 of Part 11 may reduce or restrict the period over which water is to be delivered to any serviced property or discontinue the delivery of water to any serviced property if:

17.7.1 the Water Corporation is unable to deliver water because of insufficient capacity;

17.7.2 any private works for the delivery of water to the property:

(a) are inadequate or not properly constructed or maintained and Notice of Contravention under section 151 served and not complied with; or

(b) do not comply with the regulations;

17.7.3 the owner has contravened the Act (appeal to VCAT allowed);

17.7.4 the owner has refused entry of an authorised officer; or

17.7.5 the owner of the serviced property has refused or failed to pay any money due for the delivery of water.

18 FINANCE AND ACCOUNTABILITY (BUSINESS PLANS, BORROWINGS AND TARIFFS) – PART 13

Part 13 of the Water Act sets out the various finance and accounting requirements with which Water Corporations are obliged to comply and also sets out the method by which tariffs may be set, levied and collected. The Water Amendment (Governance and Other Reforms) Act 2012 made several significant changes to the provisions in Part 13.

18.1 Corporate plans

18.1.1 A Water Corporation is obliged to prepare a corporate plan and submit the corporate plan to the Minister and Treasurer on either a date



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specified by the Minister, or if not specified, then at least 2 months before it intends to implement the plan.

18.1.2 A corporate plan must include a statement of corporate issues, a business plan and financial statements.

18.1.3 A Water Corporation must not make a major deviation from its corporate plan unless, at least 2 months before it intends to make that deviation, it has submitted details to the Minister. The Minister may issue guidelines as to what are major deviations in relation to such corporate plans.

18.1.4 If the Board of Directors of the Water Corporation forms an opinion that matters have arisen that affect the achievement of any objectives in the plan, it must immediately notify the Minister and Treasurer.

18.1.5 The Water Corporation's corporate plan (including any variation) must be available at its office during business hours for inspection on request.

18.2 Distributing funds and borrowing

18.2.1 A Water Corporation may for, or in connection with, or incidental to, the performance of its functions and the achievement of its objects, use any income received by it.

18.2.2 The borrowing powers of Water Corporations are set out under section 254 of the Water Act but in general terms, a Water Corporation must not exceed a loan, overdraft or other form of financial funding beyond any limit set by the Minister for the Water Corporation for the time being. Notably, a contract entered into by a Water Corporation is deemed to be void if it exceeds any limit applying to the Water Corporation. This could have serious ramifications against a Water Corporation acting beyond a limit but entering into a binding agreement with, for example, a bank.

18.2.3 A Water Corporation has the power to issue bonds, notes or mortgage its revenue (section 255 Water Act).

18.2.4 The borrowing provisions of Part 13 do not apply to declared water corporations. Declared water corporations are those declared under section 17A of the Borrowing and Investment Powers Act 1987 to be a water corporation to which Schedule 1 of that Act applies. Legal advice should be sought to determine if a Water Corporation may be considered a declared authority pursuant to this legislation.

18.3 Tariffs and charges

18.3.1 Pursuant to section 259 of the Water Act, a Water Corporation may impose fees under:

(a) a tariff on serviced properties within its district;

(b) a development tariff on unserviced properties within its district;



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(c) a tariff for drainage or salinity mitigation purposes on any properties within its district; and

(d) a tariff on any properties for the purposes of a management plan for a groundwater supply protection area.

18.3.2 A fee imposed under a tariff or development tariff or development tariff on a property may be:

(a) a fixed amount;

(b) an amount fixed according to the value or size of the property;

(c) an amount fixed according to the extent of use of or benefit from the service; or

(d) in the case of Melbourne Water:

(1) an amount fixed according to the use of property; or

(2) an amount fixed according to the use of development is controlled under a planning scheme; or

(e) any combination of amounts.

18.3.3 In setting a tariff, a Water Corporation must comply with the procedure set out under section 260 of the Water Act.

18.3.4 Before setting a tariff, there must be a resolution of the Water Corporation to do so. A resolution has no effect until the day on which notice of the making of the resolution is published in a newspaper circulating in the area. The notice must specify:

(a) the district in which the tariff applies;

(b) the method of calculating the fees (note the method not the actual calculation); and

(c) the period for which the tariff is set.

18.3.5 With many Water Corporations moving to shorter billing periods and the complication of billing occupiers of residential tenancy properties, a great deal more care is necessary in drafting such notices to take account of the fact that periods for which the tariff is set may vary on a property by property basis.

18.3.6 A Water Corporation that sets a tariff may:

(a) use the most recent municipal valuation;

(b) cause its own valuation to be made by a valuer;

(c) in the case of Melbourne Water, use the relevant valuation for the price determination applying at the time.



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18.3.7 For all Water Corporations, the price determination essentially sets the fees that can be imposed for its service (see Part 2 of this Manual).

18.4 Limits on power of CMAs to set tariffs

Section 260A of the Water Act provides that a CMA must not set a tariff in respect of its functions relating to waterway management which are set out in Part 10 of the Water Act. This however does not apply to its functions in relation to regional drainage or floodplain management under Division 3 and Division 4 of Part 10 of the Water Act.

18.5 Power to charge for other things

18.5.1 Section 264 of the Water Act also provides a general power to set charges by a by-law or otherwise (which would include resolution or by agreement) for anything a Water Corporation does in the performance of its functions. This, for example, would cover the situation where services are supplied by agreement outside the relevant district and provision is made in an agreement between the Water Corporation and some other party to pay for the relevant services.

18.5.2 A Water Corporation may also charge another Water Corporation for operating and maintaining any works or other costs incurred in association with supply or securing supply of another’s bulk entitlement. This also applies if a Water Corporation is acting as a delegate of the Minister.

18.6 Non-rateable property

The owner of land (other than a caravan or tenant) that is not rateable under the Local Government Act 1989, must pay any fee or charge imposed for services provided to the property and any interest imposed for late payment.

18.7 Appeals against tariffs

18.7.1 A person can object to the setting of a particular tariff but the time limit for such an objection is within 1 month after receipt of the demand for payment.

18.7.2 An objection must be based on any of the following grounds set out in sections 266(1)(a) to (e) of the Water Act:

(a) the fee imposed under the tariff is based on valuation of the land and the land is not rateable;

(b) the person is not liable for the tariff;

(c) the tariff was not set in accordance with a Water Industry Regulatory Order under section 4D(1)(a) of the Water Industry Act or in accordance with the Essential Services Commission Act 2001;



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(d) the Water Corporation did not give the required notice that the property is a serviced property; or

(e) that the fee imposed is not a correct application of the tariff as set.

18.7.3 The Water Corporation has 2 months within which to respond to that objection.

18.7.4 The person can appeal to VCAT within 28 days after the later of the day on which the decision is made, or if the person requests a statement of reasons under the Victorian Civil and Administrative Tribunal Act 1998, the day on which the statement of reasons is given or the person is informed that a statement will not be given.

18.7.5 The appeal procedure is constrained in terms of its benefit to the appellant by the fact that even if a tariff is quashed by VCAT, it may effectively be reset by the Water Corporation in a correct form after VCAT makes its decision.

18.8 Owner finance

18.8.1 Section 268(1) of the Water Act provides that where Water Corporations intend to provide services which will benefit a property, they may by notice in writing, require the owner of the property to meet or contribute to the present day cost of any works that are used or will be able to be used, directly or indirectly, for the provision of those services, and any fireplugs attached to those works.

18.8.2 If a proposal for the subdivision of land is referred to a Water Corporation under the Planning and Environment Act 1987, the Water Corporation may, by notice in writing, require the owner of the property to meet or contribute to the present day cost of any works that are used or will be able to be used directly or indirectly for the provision of services that will benefit the property, and any fireplugs attached to those works. The amount of the payment must be fair and reasonable.

18.8.3 A Water Corporation must bear any costs that would otherwise be borne by the Crown in respect of land that is used or reserved for a public purpose, which specifically benefits the area and does not require the service which is being provided.

18.8.4 Section 4I(3)(e) of the Water Industry Act states that the Minister may, in a Statement of Obligations, set a maximum in relation to the amount of a payment which may be required from the owner of a property for the provision of sewerage services to the property under section 268(1) of the Water Act. As at October 2012, the Statement of Obligations issued to a number of Water Corporations, requires that they must offer owners the option of paying contributions in equal instalments as an annuity.

18.8.5 Importantly, in addition to the obligations of an Authority to respond to planning referrals under the Planning and Environment Act 1987, a Water Corporation is obliged to serve appropriate notices under section 268(2) of the Water Act. Many Water Corporations comply with



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the obligation of response to the relevant municipal council, but fail to send the appropriate notice under section 268(2) of the Water Act.

18.8.6 A section 268 notice must include:

(a) the amount of the payment required;

(b) the reason why the payment is required;

(c) any works or services that have been or will be provided;

(d) the property in relation to which the payment is required;

(e) if payments are required in relation to a group of properties, the amounts required in relation to each property;

(f) details of the right of the owner to object and apply for review under section 271 of the Water Act; and

(g) in relation to Water Corporation instigated schemes (ie, not subdivisional referrals) the details of the proposed service and details as to the cost of that service (to be available for inspection free of charge at the Water Corporation’s office).

18.8.7 There are similar notice requirements for:

(a) notices where a contribution for increased services is sought (section 269(1) Water Act);

(b) payment for the provision of services on a property becoming a serviced property (section 270(1) Water Act); and

(c) where a Water Corporation seeks a further payment to the payments required under sections 268, 269 or 270 (if the amounts originally requested were insufficient (section 272 Water Act)).

18.8.8 Under section 272 of the Water Act there is also an obligation to refund any excess and the request for further payment is limited to 20%.

18.8.9 Section 271 of the Water Act sets out the various rights of appeal for the required payments. The time for objection to the request for payment is within 1 month of receipt of the notice from the Water Corporation. Importantly, Water Corporations should, if possible, issue the required notices setting out the various details as soon as possible after any referral on a subdivision matter. This should remove the capacity of developers coming back at a later date, long after the relevant planning permit has been issued, to attempt to revisit referral requirements.

18.8.10 Grounds of objection are limited to (using the numbering in section 271):

(a) in the case of a notice under section 268 of the Water Act, that the property will not benefit from the service;

(b) if more than one property will benefit, that the basis of distribution between properties is unreasonable;



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(c) the amount is excessive;

(d) if there are several properties that will benefit, that the owner who has been required to pay should not do so, or that any owner who is not required to pay should do so;

(e) in the case of a request under section 269 of the Water Act, that the relevant services have not increased

(ea) that the payment was not set in accordance with the WIRO made an order under section 4D(1)(a) of the Water Industry Act or in accordance with the Essential Services Commission Act 2001 (this provision is not appealable to VCAT); and

(f) in the case of a notice under section 268(1) of the Water Act on any other grounds.

18.8.11 Section 4D(1)(a) of the Water Industry Act provides that the Governor in Council may by order make a Water Industry Regulatory Order and amend, vary or revoke such order. Such an order was made and published in the Victoria Government Gazette on 18 December 2003 and amended on 27 October 2005 and 12 June 2008.

18.8.12 A Water Corporation must, within 2 months after receipt of an objection, notify the person of its decision.

18.8.13 An owner may apply to VCAT for a review of a Water Corporation’s decision on any of the grounds mentioned above except 271(1)(ea) which is that the payment was not set in accordance with the WIRO or the Essential Services Commission Act 2001.

18.8.14 An application for review at VCAT must be made within 28 days after the later of the day on which the decision is made or, where an owner requests reasons under the Victorian Civil and Administrative Tribunal Act 1998, the day on which the statement of reasons is given to the owner, or the owner is informed that a statement of reasons will not be given.

18.8.15 There are a number of decisions that have been made by VCAT in relation to these sections and appropriate advice should be obtained if there is an objection which raises concerns or an appeal is pending.

18.8.16 In relation to the collection of monies, section 273 of the Water Act provides that the payment is actually due:

(a) where there have been no objections, any date set by the Water Corporation that is after the expiry of 1 month after the receipt of the notice, or such further time as allowed by the Water Corporation;

(b) if all persons who received a notice agree in writing not to object, the date set by the Water Corporation after the date of the last of those agreements; or



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(c) If there are objections then the due date is after the Water Corporation has notified its decision about any objections made. Notably, payment is due even though an appeal may be lodged with VCAT and be pending.

18.8.17 The due date for payments under section 272(1)(a) of the Water Act (request for further payment) is 14 days after the date of the relevant notice.

18.9 Recovering monies

18.9.1 The power to recover funds, fees and tariffs owing to Water Corporations are found in Division 7 of Part 13 of the Water Act and relate to:

(a) the distinction between recovery from owners, residential tenants and caravan park residents;

(b) the time at which payments become due;

(c) the capacity of monies due to a Water Corporation from an owner to be a charge on the land (section 274(4A) Water Act), subject to any Code made by the ESC;

(d) the fact that any amount due to a Water Corporation in certain circumstances will attract interest if there is a failure to pay by the appropriate date (sections 274(3A and 281 Water Act) and any interest is set by the ESC; and

(e) the fact that a person who acquires a property will be liable as the owner of the property for any fees or charges outstanding from the previous owner of the property (section 275 Water Act).

18.9.2 Provisions in relation to residential tenants and caravan park residents under the Residential Tenancies Act 1997 are separately detailed in paragraph 18.11 of this Manual.

18.9.3 Division 7 does not apply to Melbourne Water. Separate provisions apply to the payment and recovery of money owed to Melbourne Water (see sections 281A and 281C).

18.9.4 New section 274A sets out how the application of payments to the metropolitan water corporations should be made.

18.9.5 Pursuant to the Water Amendment (Governance and other Reforms) Act 2012, Water Corporations cannot:

(a) require an occupier to pay rent to it; or

(b) dispose of property for unpaid contributions.



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18.10 Owners corporation liabilities for water supplied to subdivisions

18.10.1 Section 263A of the Water Act includes an important provision for Water Corporations in supplying water to owners corporations. (This section essential replicates the now repealed section 170 except it applies not just to water but also to sewerage services).

18.10.2 Regardless of any internal arrangements an owners corporation may make with its own members, the Water Corporation has and retains the option to require an owners corporation to bear the primary liability for the supply of water and sewerage disposal.

18.10.3 A Water Corporation is obliged to send separate invoices to individual lot owners in accordance with their relevant lot entitlement or liability if it is requested to do so, but the primary liability still remains with the owners corporation if there is a failure to pay.

18.10.4 Individual lot owners may be separately metered for their own water usage both in respect of an availability charge and a volumetric charge.

18.11 Residential tenants and caravan park residents

18.11.1 Sections 273A and 273B of the Water Act detail the fact that occupiers of residential tenancies and residents in caravan parks are now personally liable for any water usage charge or sewage disposal charge imposed on the particular property or caravan, or site if:

(a) the quantity of water supplied to the property is measured by a meter provided or installed by an Water Corporation;

(b) the owner has notified the Water Corporation that the property is occupied or is a site and has given particulars of the occupier to the Water Corporation; and

(c) the Water Corporation has recorded the reading on the meter measuring the quantity of water supplied to the property as a result of the notice from the owner.

18.11.2 The Water Corporation must ensure that the reading of the meter is recorded within 48 hours after notice from the owner or as soon as practicable following that notice.

18.12 Concessions and exemptions

18.12.1 In general terms, a Water Corporation may defer the date for payment (section 282 of the Water Act) or waive a payment altogether (section 283). Notably, a deferral may be subject to conditions. If those conditions include the payment of interest and the service is supplied mainly for personal, household or domestic purposes, there may be a requirement to comply with the National Credit Code and provide the appropriate disclosure statement and credit contract to that party. Details of the National Credit Code are set out in section 51 of Part 3 of this Manual. The National Credit Code may be viewed at www.asic.gov.au/asic/asic.nsf/byheadline/consumer-credit-code.



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18.12.2 There are certain positive obligations on a Water Corporation to waive payments in relation to prescribed persons under the Retirement Villages Act 1986. In general terms, this means where an occupier is obliged to pay for water or sewerage provision in a retirement village by way of an agreement with the retirement village owner, then the charge against the owner must be waived.

18.12.3 A vacating occupier may:

(a) notify the Water Corporation of his or her vacating the property; and

(b) request the meter be read.

18.12.4 The Water Corporation must ensure that the matter is read:

(a) on the day the occupier vacates;

(b) as soon as practicable after that day;

(c) within 48 hours; or

(d) as soon as practicable, whichever occurs last.

18.12.5 The vacating occupier ceases to be an occupier for the purposes of payment on the reading of the meter.

18.12.6 If the vacating occupier does not notify the Water Corporation that he or she is vacating, the vacating occupier is liable for the water and sewerage disposal until:

(a) the next reading of the meter; or

(b) the end of the billing period in which the vacation occurred,

whichever occurs first.

18.12.7 The owner then becomes liable for payment until the owner notifies the Water Corporation of another occupier.

18.13 Minister may require payment of charge

Section 287A of the Water Act provides that the Minister may require the owner of any land to make a payment or a number of payments to meet or contribute to the cost of any works or measures where:

18.13.1 the owner is using water on land for the purposes of irrigation and:

(a) the annual use licence for the water is being increased;

(b) the water-use licence has been varied to permit water to be used on the land at a different place; or



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(c) a new water-use licence has been issued to the owner of the land authorising the use of water on the land for the purpose of irrigation, and

18.13.2 the works or measures are to off-set the effect of the impact of the change in use on the environment.

18.14 Melbourne Water Corporation – special provisions in relation to charging

In addition to the powers of Water Corporations under the Water Act, special provisions in relation to Melbourne Water were added to the Water Act when Melbourne Water came under the operation of the Water Act. This means that in addition to the powers contained within the Water Act, Melbourne Water, as a Water Corporation, retained some particular powers in relation to:

18.14.1 the ability to have a Water Corporation / council / other person collect tariffs or charges on its behalf (section 281A Water Act);

18.14.2 the ability to recover charges from the land owner, including specifying money owing for charges on the land (section 281B Water Act); and

18.14.3 allowing certain records or documents to be inspected or requiring their production (section 281C Water Act).

19 VICTORIAN WATER TRUST ADVISORY COUNCIL – PART 14A

Part 14A was introduced into the Water Act by the Water (Victorian Water Trust Advisory Council) Act 2003. This Part establishes the Victorian Water Trust Advisory Council. The Council’s functions include:

19.1 to advise the Minister on the allocation of funds for initiatives to enhance the health and sustainability of the water resources of Victoria including rivers;

19.2 to provide greater security for meeting the future water needs of Victorians;

19.3 to encourage the increased re-use and recycling of water; and

19.4 to improve efficiencies in the use of water.

20 VICTORIAN ENVIRONMENTAL WATER HOLDER

20.1 The Victorian Environmental Water Holder (“Water Holder”) is a statutory body that was introduced into the Water Act by the Water Amendment (Victorian Environmental Water Holder) Act 2010. It was established in July 2011.

20.2 The objectives of the Water Holder are to manage water holdings for the purposes of:

20.2.1 maintaining the environmental water reserve; and

20.2.2 improving the environmental values and health of water ecosystems.

20.3 The Water Holder must prepare a corporate plan for each financial year and submit it to the environment Minister. The corporate plan must amongst other things, set out the strategies that the Water Holder will carry out to achieve its objectives.



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20.4 The Water Holder must also make a seasonal watering plan for the whole of the State for each water season (defined to mean any period of 12 calendar months beginning on 1 July and ending 30 June).

20.5 The Water Holder works together with the GMAs and Melbourne Water.

21 PLANS

21.1 Reconfiguration plans

21.1.1 The Water (Resource Management) Act 2005 amended the Water Act by introducing new processes and tools to help Water Corporations to work with their communities to alter and upgrade their infrastructure.

21.1.2 Part 7A of the Water Act sets out the formal processes to be followed by a Water Corporation in developing a reconfiguration plan. This applies to a Water Corporation within an irrigation or water district. Part 7A seems to be principally directed at the rural water corporations and is designed to facilitate significant infrastructure modifications (decommissioning, etc). It could be utilised in well known projects such as the Wimmera-Mallee pipeline or other projects of a similar nature.

21.1.3 A Water Corporation may reconfigure its infrastructure at any time and change levels of service by agreement with its customers.

21.1.4 However, if Water Corporations propose to decommission any infrastructure and terminate a service, they must first develop a reconfiguration plan. Water Corporations should also publicise the circumstances in which a reconfiguration plan must be developed before service levels are changed. The Minister can give directions to the Water Corporation on this and other such matters.

21.1.5 If changes being considered involve a system’s supply capacity, the Water Corporation will need to discuss the various options with its customers. Such discussions should cover the pricing and alternative management arrangements in order to achieve the most cost-efficient method of continuing the service. The Minister may issue a direction requiring ministerial approval of a reconfiguration plan following its adoption by a Water Corporation.

21.1.6 A person will be entitled to compensation if his or her service is terminated as a result of a Water Corporation adopting a reconfiguration plan. Compensation is payable for the loss of value to the land as a result of the service being terminated. Compensation will be payable by the Water Corporation and the amount payable will be assessed during the process for developing the reconfiguration plan.

21.2 Permanent water saving plans

21.2.1 Part 8 of the Water Act provides for the making of permanent water saving plans.

21.2.2 Section 170A of the Water Act requires a Water Corporation within a water district to prepare a permanent water saving plan and submit that



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plan to the Minister for approval. A plan must contain a schedule setting out restrictions or prohibitions on the use of water in any area. There are requirements to publish notice of a proposed plan in the Victoria Government Gazette and a local newspaper. The plan may be varied in accordance with the requirements of section 170B. If there is an inconsistency between a restriction or prohibition in a by-law and a permanent water saving plan, the by-law prevails.

21.3 Availability of district plans

A Water Corporation must make the plans of its districts available for inspection at its offices. Such plans must be kept up to date and show the works of the Water Corporation in appropriate detail (section 140 Water Act).

21.4 Emergency Management Plan

21.4.1 The Water Amendment (Governance and Other Reforms) Act 2012 inserted section 159 into the Water Act. This section requires that a Water Corporation must make a plan that sets out how the Water Corporation should respond to any emergency that could affect its powers and functions. The term “emergency” is defined in section 159A(3) to mean an emergency due to the actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of any person or environment in Victoria.

21.4.2 Notice of the making, variation or revocation and remaking of an emergency management plan must be published in the Victoria Government Gazette.

21.4.3 The Governor in Council may require a Water Corporation to carry out the requirements of a plan by way of an Order in the Victoria Government Gazette.

21.4.4 Clause 38 of Part 4 of Schedule 17 provides that as at 1 July 2012, any emergency management plan prepared by a Water Corporation under its Statement of Obligations, is taken to be an emergency management plan for the purposes of section 159A of the Water Act.

22 BY-LAWS

22.1 General

22.1.1 Section 160 of the Water Act sets out when a Water Corporation may make by-laws. A Water Corporation may make by-laws for:

(a) the management, protection and use of all lands, waterways and works under the Water Corporation’s management and control;

(b) the management, protection and use of environmental and recreational areas under the Water Corporation’s management and control, including the protection of the land, services and facilities on that land and the conservation of flora and fauna on that land;



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(c) sanitary drainage plans;

(d) the regulation or prohibition of the clearing of land (if authorised by the Minister); and

(e) generally prescribing anything that is authorised or required to be prescribed by the by-laws or that is necessary or convenient for performing the functions of the Water Corporation under the Water Act.

22.1.2 Water Corporation’s also have the power to make by-laws:

(a) under sections 171 and 171H relating to restricting water supply;

(b) for trade waste: section 181 of the Water Act;

(c) for private works or septic tank systems: section 184 of the Water Act; and

(d) preventing and minimising interference or obstructions of water (section 219).

22.1.3 By-laws are automatically revoked after 10 years although they may be extended for 12 months in accordance with the procedures set out in sections 2872L and 287W(2) of the Water Act.

22.2 Procedures for making by-laws

The Water (Governance) Act 2006 amended the Water Act by inserting a new Part 13B into the Water Act, which essentially provides for two processes for the making of by-laws. These are:

22.2.1 model by-laws; and

22.2.2 by-laws made not using the model by-laws.

22.3 Changes to model by-laws

The Water Act indicates that a model by-law can be utilised by a Water Corporation and a Water Corporation can make “minor” or “technical” changes to the model by-law. Unfortunately, there is no guidance as to what constitutes a minor or technical change. Clearly there will be examples which fall easily within these categories (eg, adoption of local names or terminology). However, if there is doubt, the Water Corporation should obtain legal advice. Actions pursuant to a model by-law with such changes could be challenged by those against whom the Water Corporation is seeking to impose the by-law.

22.4 Procedure for making by-laws using the model by-laws

The Minister is required to carry out a public process when issuing a model by-law. The Minister must undertake a notification process when proposing to issue a model by-law. Submissions may be made on a proposed model by-law. The Minister may issue a model by-law after considering submissions and making any amendments.



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A model by-law has no effect until it has been published in the Victoria Government Gazette.

22.5 Procedure for making by-laws not using the model by-laws

A Water Corporation may make a by-law without using a model by-law by giving notice of the proposed by-law in the Victoria Government Gazette and in a newspaper circulating in the relevant area. The proposed by-law must be made available for inspection. Submissions may be made on the proposed by-law, which must be considered. Ultimately, the by-law must still be approved by the Minister.

22.6 By-laws for CMAs

Section 219 of the Water Act allows CMAs to make by-laws in accordance with section 160 of the Water Act and specifically in relation to the items set out under section 219, which relate to waterway management.

23 TRADE WASTE

23.1 Section 178(1)(b) of the Water Act provides that a person must not cause or permit anything other than trade waste, discharged in accordance with a trade waste agreement, to be discharged into the sewerage system of a Water Corporation. The penalty is 200 penalty units and 80 penalty units per day for a continuing offence.

23.2 The term "trade waste" is defined in section 3(1) of the Water Act to mean:

23.2.1 any waterborne waste (other than sewage) which is suitable, according to the criteria of a Water Corporation, for discharge into the Water Corporation’s sewerage system; or

23.2.2 any other matter that is prescribed by regulations made under the Water Act to be trade waste; or

23.2.3 any other matter which is declared by a by-law made under the Water Act to be trade waste.

23.3 Pursuant to section 3(1) of the Water Act, the term “sewage” expressly excludes trade waste.

23.4 For the former licensees (now the metropolitan water corporations) classes of trade waste are prescribed by the Water Industry Regulations 2006. The provisions are worth a look for general guidance on the types of waste that might typically be considered to be trade waste and may eventually form part of new regulations under the Water Act affecting all Water Corporations.

23.5 There is no definition of the term “trade waste agreement” in the Water Act. Arguably, therefore, provided the parties agree to terms, such an agreement need not be in writing or signed by the parties. However, it would be appropriate to have a written agreement to ensure the parties have agreed to all terms and conditions and a written agreement can be more appropriately used as evidence of a breach.

23.6 On 1 July 2012, the Trade Waste Customer Service Code for Victorian Water Businesses came into effect. This Code was created under section 4F of the Water Industry Act 1994. The Code imposes obligations on Water Corporations (including



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Melbourne Water) in relation to the provision of trade waste services. Clause 4.1 of the Trade Waste Code provides a form of agreement must be used, and clauses 4.3 and 4.5 of the Code intimate that such agreement be in writing.

23.7 Water Corporations have the power to make by-laws in relation to trade waste. These by-laws inform the content of trade waste agreements; they can set out in more detail what is trade waste; and they can set penalties for breach of the by-law (see section 160(3)(g) of the Water Act). The specific items that can be incorporated in such a by-law are detailed in section 181 of the Water Act.

23.8 If a by-law has been made, then the person who wishes to discharge the trade waste must do so in accordance with the terms of the by-law.

23.9 Clause 4.4 of the Trade Waste Code sets out as a minimum what should be in a trade waste agreement. Notably, the Trade Waste Code binds Water Corporations but not individuals.

23.10 Trade waste agreements are an entire area for review in themselves, but some significant issues need to be noted in relation to these, including:

23.10.1 unless a Water Corporation enters into an agreement with the owner of the land, payments due under the agreement will not be a charge on the land. This will often be a problem as owners will put in place $2 companies as tenants for various reasons. It is preferable therefore, to obtain either guarantees from directors or effect agreement by the owner of the land that any charges will be statutory charges on the property (subject of course to any ESC Code on the statutory charge).

23.10.2 Trade waste agreements will often involve a Water Corporation undertaking a capital works component to cater for the particular trade waste demand. The agreements need to make provision for payment by the trade waste user of that capital component and importantly, provide appropriate security for that payment in the form of either guarantees, a mortgage or other financial security. Although, notably, clause 5 of the Trade Waste Code provides that fees and charges must be in accordance with the Price Determination.

23.10.3 It is likely that any trade waste by-laws will be overridden by trade waste regulations affecting all Water Corporations.

23.11 Water Corporations can apply to a court in respect of the enforcement of a trade waste agreement, whether or not proceedings are instituted for contravention of its terms (section 182 Water Act).

23.12 It is important to note that legal advice should be obtained in drafting trade waste agreements, given the various by-laws, regulations and now, the Trade Waste Code.

24 SEPTIC TANKS

24.1 Local governments (under delegation from the EPA (“EPA”)) have the main responsibility for septic tanks.



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24.2 Part IXB of the Environment Protection Act 1970 provides that a person must not construct a septic tank system unless that person holds a permit (issued by the relevant municipal council).

24.3 Section 180 of the Water Act provides that if a municipal council or the EPA receives an application for a permit for a septic tank system in respect of land within a Water Corporation’s sewerage district, it must forward a copy of the application to the relevant Water Corporation, if the Water Corporation has lodged with the municipal council and EPA a standing written request for referral of those applications.

24.4 The Water Corporation must, within 21 days after the copy of the application is forwarded to it, notify the municipal council or EPA of:

24.4.1 the location of the sewer nearest to the land;

24.4.2 the availability of works to service the land; and

24.4.3 any requirements with which the council or EPA must comply.

24.5 A Water Corporation has the capacity to respond by imposing conditions but it is not clear (and we believe it is probably not a power of a Water Corporation) if they have the power to actually refuse the relevant application. However, the Council and the EPA must comply with any requirement of the Water Corporation in relation to the application within 21 days after the application is forwarded to the Water Corporation and neither the municipal council nor the EPA can make a decision in relation to the application within that 21 days.

24.6 Section 183 of the Water Act allows a Water Corporation to enter and inspect septic tank systems within its own district and, in addition to the powers of the local government, require repairs and maintenance over septic tanks.

24.7 Section 184 of the Water Act allows a Water Corporation to make a by-law about septic tank systems. Such by-laws can be made to regulate works or apparatus within the Water Corporation’s sewerage district that are part of any private works or of a septic tank system and require regular maintenance and cleaning and the payment of any fee for such maintenance, if the works are carried out on behalf of the Water Corporation.

25 ENVIRONMENTAL ISSUES

25.1 General

Various amendments made to water legislation over the last several years, has seen the protection of the environment as being one of the major issues impacting on the Water Corporations. The main changes are set out in this section of the Manual.

25.2 The Environmental Water Reserve

25.2.1 The Water (Resource Management) Act 2005 inserted section 4A into the Water Act. This section creates the environmental water reserve.

25.2.2 The “environmental water reserve” is defined in section 4A(1) of the Water Act as water that is set aside for the environment as an environmental entitlement and through the operation of conditions on



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any bulk entitlement, or any licence, permit or authority issued under the Water Act or any other Act or regulations, any management plan or any other provision in the Murray-Darling Basin Act 1993 or the Groundwater (Border Agreement) Act 1985.

25.2.3 A new section 4B provides that the objective of the environmental water reserve is that the:

“…reserve be maintained so as to preserve the environmental values and health of water ecosystems, including their biodiversity, ecological functioning and quality of water and the other uses that depend on environmental condition”.

25.2.4 Division 1A of Part 4 of the Water Act is titled ‘Environmental Entitlements’. This division includes section 48B which provides that the Water Minister may allocate to the Victorian Environmental Water Holder, an entitlement to water for the purpose of maintaining the environmental water reserve, or improving the environmental values and health of water ecosystems.

25.2.5 The Victorian Environmental Water Holder will hold the entitlement and will determine its allocation and use.

25.3 Financial contributions for water reserve

25.3.1 The Water Industry (Environmental Contributions) Act 2004 amended the Water Industry Act. As a result of these changes, Water Corporations (including Melbourne Water), are required to make environmental contributions from 1 October 2004 and pay such contributions into the government consolidated fund.

25.3.2 The purpose for the collection of contributions is to promote the sustainable management of water and address adverse water related environmental impacts.

25.3.3 The amounts of the contributions up until 30 June 2008 are set out in Schedule 4 of the Water Industry Act. From 1 July 2008, section 193 of the Water Industry Act applies. Pursuant to section 193(1), each Water Corporation must pay into Consolidated Fund, in respect of which an Order is made, the amount:

(a) that is calculated by reference to the revenue of the Water Corporation; and

(b) that is determined in accordance with the Order.

25.3.4 According to a review of the Victoria Government Gazette, no Order has been gazetted dealing with contributions for the period following 30 June 2012.

25.3.5 The Water Minister must, within 3 months after the end of each financial year in respect of which a Water Corporation pays an environmental contribution, prepare a report setting out details of the expenditure of all money paid as environmental contributions in that financial year.



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25.4 Sustainable water strategies

25.4.1 Section 11 of the Water (Resource Management) Act 2005 inserted Division 1B into Part 3 of the Water Act titled ‘Sustainable Water Strategies’. This Division provides that the Minister may cause a Sustainable Water Strategy to be prepared for a region of the State.

25.4.2 A Sustainable Water Strategy is designed to provide for the strategic planning of the use of water resources in the region to which it applies, to identify threats to the water supply and quality of water, and to identify ways to improve the management and use of water resources.

25.4.3 As at October 2012, the DSE website sets out the four regions the strategies encompass are:

(a) Northern Region (the River Murray system its tributaries – Loddon, Goulburn, Broken, Campaspe, Kiewa and Ovens systems);

(b) Central Region (West Gippsland, Port Phillip, Westernport, Western Central Highlands, and Barwon Region);

(c) Western Region (Wimmera, Mallee, Millicent, Portland, Otway, Glenelg, Hopkins and Avoca Basins); and

(d) Gippsland Region (South Gippsland, Latrobe, Thomson, Mitchell, Tambo, Snowy and East Gippsland Basins).

25.5 Long-term water resources assessments

25.5.1 The Water (Resource Management) Act 2005 also inserted Division 1C into Part 3 of the Water Act titled ‘Long-term Water Resources Assessments’. This Division provides that the Minister must introduce a program for the preparation of long-term water resources assessments within 12 years after section 14 of the Water (Resource Management) Act 2005 commences (being 3 August 2006).

25.5.2 The purpose of long-term water resources assessments is to identify whether there has been a decline in the long-term availability of surface water or groundwater, and whether there has been a deterioration in waterway health for reasons related to flow.

26 LIABILITY FROM THE FLOW OF WATER

26.1 Civil liability for unauthorised taking or use of water or unauthorised works

26.1.1 Section 15(1) of the Water Act states that a person who -

(a) takes water in an unauthorised manner or in unauthorised quantities;

(b) uses water in an unauthorised manner or for an unauthorised purpose;

(c) pollutes water, whether or not authorised to do so; or



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(d) constructs, maintains or operates any unauthorised works -

and by that act causes injury to any other person or damage to the property (whether real or personal) of any other person or causes any other person to suffer economic loss is liable to pay damages to that other person in respect of that injury or damage.

26.1.2 Paragraph (c) of section 15(1) does not apply to the discharge of saline matter in accordance with by-laws or regulations made under the Water Act.

26.1.3 Paragraph (d) of section 15(1) does not apply to any injury damage or loss to which section 16 of the Water Act applies.

26.2 Liability arising out of the flow of water

26.2.1 Section 16(1) of the Water Act states that if:

(a) there is a flow of water from the land of a person onto any other land;

(b) that flow is not reasonable; and

(c) the water causes-

(i) injury to any other person; or

(ii) damage to the property (whether real or personal) of any other person; or

(iii) any other person to suffer economic loss -

the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.

26.2.2 Section 16(2) of the Water Act applies to the interference with a reasonable flow of water onto any land and negligent conduct that results in the same losses as section 16(1). That person who interfered with the flow is liable to pay damages to that other person in respect of that injury, damage or loss.

26.2.3 Section 16(5) of the Water Act provides that even if the loss was caused by a previous occupier of the land, the current occupier will be liable if he or she failed to take any steps to reasonably prevent the loss. The original person who caused the flow will not be liable (section 16(6) Water Act).

26.2.4 Section 17(1) of the Water Act, provides that a person will not incur any civil liability otherwise than in accordance with the Water Act and the Water Industry Act (as it is still applicable in transitional form), thereby effectively abolishing any common law actions against the offending parties, except for the liability at common law in regards to the damage caused by the escape of water from a private dam (section 18 Water Act).



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26.2.5 Section 17(2) provides that sections 15 and 16 do not create any liability in respect of a flow of water from the works of an Authority in the exercise of a function under Parts 8 and 9 Divisions 2, 3 and 5 of Part 10 and Part 11. Generally, Section 157 would apply instead.

26.3 Victorian Civil and Administrative Tribunal

26.3.1 Section 19 of the Water Act purports to take away the right of a person to take civil proceedings for damage caused by flow of water in any other jurisdiction other than VCAT (except for personal injury). That is, an action cannot generally be taken for such a breach in the Supreme Court. If involved in such proceedings great care needs to be taken and legal advice should be obtained.

26.3.2 VCAT is obliged to take account of the matters set out in:

(a) section 20(1) of the Water Act in relation to determining whether flow is reasonable or not; and

(b) section 21 of the Water Act in relation to public works.

26.4 Section 157 of the Water Act

This section of the Water Act deals with the liability of Water Corporations arising out of the flow of water. Several cases are of interest in this area including:

26.4.1 Pumpa & Anor v Murray Darling Basin Commissioner & Anor (Real Property) [2008] VCAT 2268;

26.4.2 Pumpa & Ors v Goulburn-Murray Rural Water Corporation [2010] VSC 169;

26.4.3 Transpacific Cleanaway Ltd v South East Water Limited (Real Property [2008] VCAT 1798; and

26.4.4 South East Water Limited v Transpacific Cleanaway Pty Ltd [2010] VSC 46.

27 LIABILITY OF MEMBERS AND OFFICERS OF A WATER CORPORATION

27.1 Section 17(2)

Sections 15 and 16 of the Water Act (dealing with civil liability for the unauthorised taking or use of water and for unauthorised works and the liability arising out of the flow of water) do not create any liability in respect of a flow of water from the works (including a dam) of a Water Corporation where the Water Corporation exercises its functions of water supply, sewerage, waterway management and irrigation. Although section 157 may apply in this circumstance.

27.2 Good faith immunity

27.2.1 The good faith immunity for members that previously existed under section 90(1) of the Water Act has been repealed. The only immunity



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available to members of the Board of a Water Corporation exists by virtue of clause 3 of Schedule 16 of the Water Act which states:

“Immunity of certain members of water corporations

(1) A relevant member of a post-dating water corporation is not personally liable for anything done or omitted to be done in good faith-

(a) in the exercise of a power or the discharge of a duty under this Act or the regulations; or

(b) in the reasonable belief that the act or omission was in the exercise of a power of the discharge of a duty under this Act or the regulations.

(2) Any liability arising from an act or omission that would, but for sub-section (1), attach to a relevant member of a post-dating water corporation attaches instead to the post-dating water corporation.

(3) In this clause-

"relevant member" in relation to a post-dating water corporation, means a person who is a member of the Board of Directors of the water corporation and who was, at the commencement of section 7 of the Water (Essential Services Commission and Other Amendments) Act 2003 (being 1 January 2004), a member of the Board of the relevant pre-dating Authority and whose term of office has not expired since that commencement.”

27.2.2 This section, therefore, seems to only provide statutory immunity to persons who were members of the pre-dating authority prior to 1 January 2004. Accordingly, those persons who become members after 1 January 2004 are not protected by the good faith immunity. These members should consider obtaining appropriate insurance, or more appropriately, ensure their Water Corporations hold such insurance.

28 ENFORCEMENT

28.1 General

Part 14 of the Water Act deals with enforcement. There are a number of general and specific offences in the Water Act, most of which are discussed below.

28.2 General offences

28.2.1 A person must not without consent or other lawful authority, destroy, damage, remove, alter or in any way interfere with any works or other property belonging to, or under the control and management of, a Water Corporation (section 288(1) Water Act).

28.2.2 A person must not, without the consent of the Water Corporation or without any other lawful authority take, use or divert water that is under



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the control and management of a Water Corporation or supplied by a Water Corporation (section 289(1)(a) Water Act).

28.2.3 A person must not, without the consent of the Water Corporation or without any other lawful authority, interfere with the flow of water in any waterway, aquifer or works under the control and management of a Water Corporation (section 289(1)(6) Water Act).

28.2.4 Unless in an emergency, a person must not open any ground and thereby uncover or expose any works belonging to or under the control and management of a Water Corporation without its consent or having given 5 days written notice (section 290(1) Water Act).

28.2.5 A person must not wilfully trespass on the land or premises of a Water Corporation (section 291 Water Act).

28.2.6 A person must not impersonate an authorised water officer (section 291C Water Act) or obstruct, threaten, abuse, insult or intimidate an officer of the Authority (section 292 Water Act).

28.2.7 Section 295 of the Water Act imposes higher penalties for certain offences in certain circumstances.

28.3 Permanent water saving plans and by-laws

28.3.1 Finally, reacting to requests over a number of years, section 295A of the Water Act were added to the Water Act allowing the issue of infringement notices for breach of water restrictions. Infringement notices may now be issued for breaches of the restrictions and prohibitions on water use provided for in permanent water saving plans or water restriction by-laws. The penalties are tailored to the severity of the offence.

28.3.2 A person must not contravene a permanent water savings plan. If there is a contravention, the Water Corporation may provide a written warning. If the contravention continues, the Water Corporation may serve an infringement notice.

28.3.3 Penalties differ depending upon whether they are imposed by a court or an infringement notice.

28.4 Who can prosecute?

Section 296 of the Water Act sets out who may prosecute for various offences under the Water Act. Prosecutions can be initiated by:

28.4.1 a member of the police force;

28.4.2 a person authorised to do so, either generally or in any particular case, by the Water Corporation which has responsibility for the enforcement of the provision;



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28.4.3 in the case of an offence against section 170F or 291D of the Water Act (in relation to a permanent water savings plan), an authorised water officer responsible for implementing the plan;

28.4.4 in the case of a by-law made under section 171(1)(ba) of the Water Act an authorised water officer; or

28.4.5 a prescribed person (as at October 2012 no one is prescribed).

28.5 Offences by corporations

28.5.1 If a company is guilty of an offence against the Water Act, the regulations or a by-law, any officer of the company who was in any way, directly or indirectly, knowingly concerned in or party to the commission of the offence, is also guilty of that offence and liable for the penalty for that offence.

28.5.2 An officer in this context generally means a director or someone who is concerned, or takes part in, the management of the company, but does not include an employee.

28.5.3 Care should be taken when prosecuting to ensure that all potential persons who could be guilty are appropriately targeted.

28.6 Civil remedies

Even if a prosecution is brought against a person under the Water Act, a Water Corporation is still able to bring civil proceedings in a court of law (section 299 Water Act).

28.7 Evidence and service

The balance of Part 14 of the Water Act deals with evidentiary provisions; penalty applications; proof issues; and authenticity of documents and analysis. Sections 304 and 305 of the Water Act provide for the method by which documents must be served on or by a Water Corporation and should be checked whenever it is necessary to appropriately serve or receive service of a document.

28.8 Section 151

28.8.1 Section 151 of the Water Act provides that Water Corporations can serve on a person who contravenes the Act, regulations, by-laws, requirement, condition or a prescription of an approved management plan for a water supply protection area, a notice of contravention.

28.8.2 The notice can require the person who contravened, or the owner of the property to take action to remedy the contravention.

28.8.3 Care needs to be taken when drafting and serving such notices and if in any doubt, legal advice should be obtained.



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28.9 Infringement notices for by-laws

28.9.1 As a result of amendments made by the Water Acts Amendment (Enforcement and Other Matters) Act 2007, the Infringements Act 2006 now applies with respect to by laws made under section 171(1)(ba).

28.9.2 Section 171(1)(ba) provides that a Water Corporation may make by laws with respect of water restrictions.

28.9.3 It is important that Water Corporations use the correct infringement notice, as a defective infringement notice may be unenforceable (see Melton Shire Council v Tankard [2001] VSCA 83). It would be prudent for all Water Corporations to regularly review the forms they are using to ensure they comply with current requirements.

28.9.4 Section 13 of the Infringements Act 2006 provides for the form of infringement notices as follows:

“An infringement notice must—

(a) be in writing and contain the prescribed details;

(b) state that—

(i) the person is entitled to elect to have the matter of the infringement offence heard and determined in the Court; or

(ii) in the case of an infringement notice served on a child, is entitled to have the matter of the infringement offence dealt with by the Children's Court in accordance with the Children, Youth and Families Act 2005.”

28.9.5 The Infringements (Reporting and Prescribed Details and Forms) Regulations 2006 provides the prescribed particulars in regulation 8, namely that an infringement notice must contain:

(a) that it is an infringement notice;

(b) the date of the infringement notice;

(c) the name and address (if known) of the person served with the infringement notice or, if the infringement notice is in respect of an infringement offence that is a parking infringement, the words "the Owner";

(d) the name of the enforcement agency;

(e) the enforcement agency identifying reference of the infringement notice;

(f) either the name of the issuing officer or the enforcement agency identifying reference of the issuing officer;



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(g) the date and approximate time and place of the infringement offence alleged to have been committed;

(h) the Act or other instrument that creates the infringement offence and a brief description of the infringement offence alleged to have been committed;

(i) the infringement penalty;

(j) the manner in which the infringement penalty may be paid;

(k) that the infringement penalty must be paid by a specified due date, being not less than 28 days from the date of service of the infringement notice;

(l) that failure to pay the infringement penalty by the specified due date may result in further enforcement action being taken and the incurring of further costs;

(m) that the person served with the infringement notice, or a person acting on that person's behalf, may apply to have the decision to serve the infringement notice internally reviewed by the enforcement agency under the Act (some exceptions apply);

(n) that the person served with the infringement notice may be eligible for a payment plan under section 46 of the Act, unless that person is a body corporate;

(o) that further information and information relating to eligibility for payment plans and applying for internal review can be obtained from:

(1) a nominated telephone number;

(2) a designated address;

(3) if available, the enforcement agency's website address; and

(p) any further details specifically required to be included in relation to an infringement offence under any Act or other instrument which creates the infringement offence.

28.10 Identification of authorised officers

28.10.1 The Water Acts Amendment (Enforcement and Other Matters) Act 2007 also amended the Water Act by inserting section 291B, which provides that:

“(1) An Authority must issue to each person appointed as an authorised water officer an identity card that—

(a) contains a photograph of the person; and

(b) states the full name of the person to whom it is issued; and



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(c) states that the person is an authorised water officer for the purposes of this Act.

(2) An authorised water officer must produce his or her identity card for inspection at any time during the exercise of a power under this Act if asked to do so.”

28.10.2 Powers of authorised water officers include: issuing an infringement notice (if the authorised water officer believes on reasonable grounds an offence has been committed); and requiring a person to state his or her name and address if the authorised water officer has reasonable grounds for believing the person has contravened, or is contravening a permanent water saving plan or a by-law. It is an offence for a person to refuse to provide their name and address (section 291D of the Water Act).

29 OTHER MATTERS

29.1 Farm dams

29.1.1 The Water (Irrigation Farm Dams) Act 2002 amended the Water Act so as to require that the use of water for private dams or from springs or soaks for commercial or irrigation purposes is to be licensed. It also provides for the declaration of water supply protection areas (for the protection of groundwater and/or surface water resources) and the preparation and implementation of management plans for these areas. This Act further amended the Water Act to provide that certain dams are to be licensed and licensed drillers are to comply with the conditions of bore construction licences. These changes came into effect on July 1, 2002.

29.1.2 The case of Ashworth v State of Victoria [2003] VSC 194 considered the effect of these amendments in detail in respect of common law rights to use water from farm dams. In that case, Ashworth sought declaratory relief to the effect that he was entitled to use the water on his land which flowed otherwise than in a regular or defined course, whether it originated from rainfall or otherwise, as his own water. In this case, Gillard J held:

“In my opinion, s.8(5A) [of the Water Act] makes clear, that Mr Ashworth is not entitled to use water on his land from a spring, soak or water from a private dam to the extent that the water supplied to the dam was not from a roof of a building other than for domestic and stock use. Section 8(7) of the Act provides that the statutory rights replace his common law rights.”

29.2 Water Corporation Ministerial delegations and directions

29.2.1 Section 306 of the Water Act allows for ministerial delegations to any person of any power, discretion, function, authority or duty of the Minister under the Water Act or other Act.



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29.2.2 This power does not apply to sub-delegations or various powers listed in section 306(1)(b), which includes the power of the Minister to give directions under section 307 of the Water Act.

29.2.3 It is often difficult to find the appropriate instrument of delegation, but all delegations should be checked to determine who has the appropriate power to carry out the requirements under the Water Act, or other Acts as appropriate.

29.2.4 Section 307 of the Water Act allows the Minister (after consultation with the Treasurer) to give directions to a Water Corporation in relation to the performance of its functions. The procedure in relation to that process includes:

(a) an obligation to advise the Water Corporation 14 days prior to such a direction, of an intention to do so; and

(b) a requirement for the Minister to ensure that such a notice is summarised and published in the Victoria Government Gazette.

29.2.5 A Water Corporation must include any such directions in its annual report.

29.2.6 Important consequences can flow from the failure to comply with the direction as it can result in the Minister having power to appoint an administrator for a failure to comply.

29.3 Other matters

29.3.1 The Water Act is broad ranging legislation and covers some other matters beyond those specifically detailed in this Manual. A short summary of some of these other issues include:

(a) drillers licences (section 311 of the Water Act and following);

(b) ministerial advisory committees (section 318 Water Act);

(c) provisions to deal with officers appointed or transferred to Water Corporations, CMAs, employment issues and savings of certain public servants’ rights (section 321 of the Water Act and following);

(d) the power of the Governor in Council to make regulations pursuant to the Water Act;

(e) various repeal, savings and transitional provisions in many cases associated with dealing with the restructure of the water industry;

(f) environment and recreational areas (section 122ZA-122ZF); and

(g) storage managers (Part 6C).

29.3.2 The Schedules to the Water Act are:

(a) Water Corporations and former water authorities (Schedule 1);



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(b) Metropolitan Water Corporations – former licensees (Schedule 1A);

(c) Transitional provisions applying on restructuring or abolition of Water Corporations (Schedule 2);

(d) Particular powers of Melbourne Water Corporation (Schedule 3);

(e) Transitional arrangements Water Amendment (Victorian Environmental Water Holder) Act 2010 (Schedule 4);

(f) Recording of mortgages of water shares (Schedule 12A);

(g) Electronic transactions in the Water Register (Schedule 12B);

(h) Transitional arrangements - Water (Resource Management) Act 2005 (Schedule 15);

(i) Transitional Arrangements Water (Governance) Act 2006 (Schedule 16); and

(j) Transitional Arrangements Water Amendment (Governance and Other Reforms) Act 2012 (Schedule 17)

30 REGULATIONS

30.1 Regulation sections

Sections 80(3A), 119(4), 122E, 122ZF, 141A(1)(c), 283(5) and 324 allow for the Governor in Council to make regulations with respect to the functions of the bodies subject to the Water Act.

30.2 The Regulations

The following regulations have been made:

30.2.1 Water (Drillers’ Licences) Regulations 2012

These regulations prescribe fees relating to applications for the grant or renewal of drillers’ licences and to provide for tests that may apply to an applicant for a driller’s licence.

30.2.2 Water (Lake Eildon Recreational Area) (Houseboats) Regulations 2003

These regulations provide for the control and management of houseboats in the Lake Eildon Recreational Area. The regulation provides for the licensing of houseboats which are to be used or left within the recreational area.

30.2.3 Water (Long Service Leave) Regulations 2011

These regulations provide for long service leave for employees of Water Corporations and CMAs.



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30.2.4 Water (Notice of Disposition of Land) Regulations 2010

These regulations are designed to provide for notice of disposition of any land in accordance with section 159 of the Water Act.

30.2.5 Water (Register of Interests) Regulations 2010

These Regulations prescribe the form of return which must be used for the register of interests. They also provide for applications relating to the register of interests under section 113 of the Water Act.

30.2.6 Water (Resource Management) Regulations 2007

These Regulations prescribe fees for applications to the Minister relating to water shares, water allocations and related dealings under the Water Act. They also prescribe fees for lodging documents with the Registrar of the Water Register or making recordings in the Water Register under the Water Act, prescribe fees for applications to amend or search the Water Register under the Water Act, and prescribe who may search the Water Register for specified information or records under the Water Act.

30.2.7 Water (Subdivisional Easements and Reserves) Regulations 2011

These regulations prescribe the rights of a Water Corporation upon the creation of an easement or reserve for the use of the Water Corporation when land is subdivided.

31 COMMONWEALTH POWERS: MURRAY-DARLING BASIN AUTHORITY

31.1 On 3 July 2008 at the Council of Australian Governments meeting, the Prime Minister, the Premiers of Victoria, New South Wales, Queensland and South Australia and the Chief Minister of the Australian Capital Territory made an intergovernmental agreement providing for reform of the management of the Murray-Darling Basin at a national level.

31.2 The Water (Commonwealth Powers) Act 2008 which commenced on 15 December 2008 referred Victorian powers relating to the Murray-Darling Basin to the Commonwealth and made consequential amendments to a number of Acts including the Water Act associated with this referral of power.

31.3 The Murray-Darling Basin Authority has been established under amendments to the Water Act 2007 (Cth). The purpose of the Murray-Darling Basin Authority is to allow for the management of water resources in the Murray-Darling Basin to be in the national interest.

31.4 The Murray-Darling Basin Authority has responsibility for preparing the Basin Plan which oversees water planning for the Basin including:

31.4.1 setting limits on the amount of water (surface and groundwater) that can be sustainably taken from the Basin;

31.4.2 setting strategies to respond to risks to the Basin’s water resources;

31.4.3 stating requirements for State water plans;



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31.4.4 the preparation of an environmental watering plan;

31.4.5 the preparation of a water quality and salinity management plan; and

31.4.6 the preparation of rules about water trading rights concerning water resources in the Basin.

31.5 To the extent of any inconsistency between the exercise of a power of the Murray-Darling Basin Authority and the exercise of power by Victorian water businesses (wherever such inconsistency may exist), the powers granted to the Murray-Darling Basin Authority being part of Commonwealth legislation may prevail over powers granted by Victorian state legislation to water businesses. (Note section 250 Part 11A of the Water Act 2007 (Cth)).



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PART 2 - WATER INDUSTRY ACT 1994 - ADMINISTRATION, OPERATIONS, MANAGEMENT

32 FORMER LICENSEES – METROPOLITAN WATER CORPORATIONS

32.1 In 1994 the Water Industry Act made a series of significant changes to the Victorian Water Industry, predominantly in relation to the metropolitan areas. The Water Industry Act gave powers to three new companies, the sole shareholder of those companies being the State of Victoria. Those companies were City West Water Ltd, Yarra Valley Water Ltd and South East Water Ltd.

32.2 From 1 July 2012 by virtue of the enactment of the Water Amendment (Governance and Other Reforms) Act, the former licensees were reconstituted as Water Corporations under the Water Act and as a result, are no longer corporations subject to the Commonwealth Corporations Act. They are now statutory authorities under the Water Act.

32.3 The former licensees have been renamed as follows:

32.3.1 Yarra Valley Water Corporation;

32.3.2 South East Water Corporation; and

32.3.3 City West Water Corporation,

otherwise known as the metropolitan water corporations.

32.4 The districts of the metropolitan water corporations are set out in Division 1A of Part 6A of the Water Act.

32.5 The powers of the metropolitan water corporations are now predominantly set out in the Water Act. Schedule 17 of the Water Act and Part 10 of the Water Industry Act set out the transitional provisions in relation to the changes that occurred on 1 July 2012.

32.6 For the most part, the powers set out in Part 1 of this Manual now apply to the metropolitan water corporations, although notably the Regulations made under the Water Industry Act still apply to the metropolitan water corporations (see section 200 Water Industry Act).

32.7 Part 2 of this Manual:

32.7.1 sets out the specific transitional provisions that apply to the metropolitan water corporations; and

32.7.2 reviews the remaining provisions of the Water Industry Act and how that Act currently applies to all Water Corporations.

33 REPEALS

33.1 The following provisions of the Water Industry Act were repealed on 1 July 2012.

33.1.1 The following definitions were repealed from section 3(1) - analyst, authorised person, water officer, drought response plan, emergency management plan, licence, licensee , permanent water savings plan,



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principal works, retail licence, security deposit, service charge, trade waste agreement, usage charge and works. Part 2 dealing with the licensing system for the former licensees was repealed.

33.1.2 Part 3 dealing with the powers and functions of the former licensees was repealed. However, most of the transitional provisions apply to this Part and are discussed in more detail below.

33.1.3 Section 176 dealing with the power of the Minister to delegate was repealed.

33.1.4 Section 176A dealing with the notice of disposition of land was repealed. This can now be found in section 159 Water Act.

33.1.5 Section 177B dealing with the authentication of documents was repealed. This provision can be found in section 303 Water Act.

33.1.6 Section 177C dealing with discharges into works was repealed and is mostly replicated in Enforcement Part 14 of the Water Act, particularly sections 302 and 303A.

33.1.7 Sections 180 and 181 dealing with service of documents was repealed. These are largely contained in sections 304 and 305 Water Act.

33.1.8 Section 182 providing that the Treasurer may give guarantees was repealed.

33.1.9 Section 183 dealing with the Trade Practices Act was repealed. See Part 9 of the Manual for further information on the reform of the Trade Practices Act 1974.

33.1.10 Part 5A dealing with the appointment of authorised water officers was repealed. These provisions can now be found in sections 291A to 291A of the Water Act.

34 TRANSITIONAL

34.1 General

Part 10 of the Water Industry Act and Part 1 of Schedule 17 of the Water Act sets out the transitional arrangements for the metropolitan water corporations.

34.2 Statement of Obligations

The Statement of Obligations that existed before 1 July 2012 for each of the three metropolitan water corporations continues notwithstanding the change. Any reference in the Statement of Obligations to the former licensees is taken to be a reference to the newly constituted metropolitan water corporations.

34.3 Rate collection

Any terms and conditions agreed between the Minister (as rating authority) and a former licensee under section 143 of the Water Industry Act in force before 1 July 2012, still remain in force.



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34.4 Regulations

Despite the changes brought about by the Water Amendment (Governance and Other Reforms) Act 2012, any regulations made under sections 50-53 and 184 of the Water Industry Act including trade waste regulations, are taken to continue in force as if any reference in those sections and regulations to the former licensees were a reference to the metropolitan water corporations.

34.5 Directors

34.5.1 Each person who was a Director of a former licensee , is deemed to be a member of the Board of Directors of the relevant metropolitan water corporation. The period of membership and terms and conditions continue to apply. Similarly, the person who occupied the positions of Chair and Deputy Chair continue in their positions.

34.5.2 Any employee of a former licensee is taken to be an employee of the relevant metropolitan water corporation on the same terms and conditions.

34.5.3 Any authorised person authorised by a former licensee , is taken to be an authorised person of the relevant Water Corporation.

34.6 Transfer of assets and liabilities

The following apply:

34.6.1 Any rights, property and assets that were vested in a former licensee before 1 July 2012 are now vested in the relevant Water Corporation including any works.

34.6.2 Any easement or reserve created for the use of a former licensee prior to 1 July 2012 is taken to be an easement or reserve under section 136 of Water Act.

34.6.3 Any debts or liabilities of a former licensee that were existing immediately before 1 July 2012 are taken to be the debts, liabilities and obligations of the metropolitan water corporation.

34.6.4 The relevant metropolitan water corporation is substituted as a party to any arrangement or contract and any proceedings pending in Court (some exceptions as relevant under the Corporations Act).

34.7 Fees and charges

Despite the repeals of Part 2 of the Water Industry Act, the Water Industry Act still applies to:

34.7.1 the payment of any fee, charge or part thereof that was imposed before 1 July 2012 and remains outstanding; and

34.7.2 the payment of the whole or any part of a fee or charge imposed by a metropolitan water corporation in respect of the provision of service for



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any period before 1 July 2012 when the fee or charge or part thereof is imposed on or after 1 July 2012.

34.8 Liability of occupier

A notice given to a former licensee by an owner of a property pursuant to section 23(1)(c) of the Water Industry Act, notifying the former licensee that an occupier occupies the owner’s property and therefore will be liable for water usage charges and sewage disposal charges, is taken to be a notice given to the relevant Water Corporation under section 273A(1)(c) of the Water Act.

34.9 Liability of owners corporation

A request made to a former licensee in accordance with section 24 of the Water Industry Act in relation to apportioning amounts for payment, is taken to be a request made under section 263A of the Water Act.

34.10 Concessions usage charges

An application made to a former licensee under section 26(2) or 26(2A) of the Water Industry Act relating to concessions for payment, is taken to be an application to the relevant Water Corporation under section 283(3C) or 283(3E) respectively of the Water Act.

34.11 Acquisition of land

If any land was acquired by the Minister under section 55 of the Water Industry Act on behalf of a former licensee before 1 July 2012, that land is taken to be now vested in the relevant Water Corporation.

34.12 Serviced property

34.12.1 Any land that was before 1 July 2012 in an area specified in the water and sewerage licence area of a former licensee and that was for the purpose of water supply or sewerage services, a serviced property by the operations of section 64 of the Water Industry Act, is taken to be a serviced property within the meaning of the Water Act.

34.12.2 If a former licensee imposed a service charge under section 22 of the Water Industry Act for the provision of water supply or sewerage services on a property, this is taken to be a serviced property for the purposes of section 144 of the Water Act.

34.13 Customer dispute resolution

An old dispute resolution scheme continues to apply under the new regime.

34.14 Management of Crown land

Any orders made pursuant to sections 56(1) and 46(2) of the Water Industry Act in relation to the management of Crown land, are taken to be orders made under sections 131(1) and 131(2) respectively of the Water Act.



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34.15 Notices

Despite the repeal of Part 3 of the Water Industry Act, notices, applications and conditions made by a former licensee prior to 1 July 2012 in relation to the following sections, and that are in force, continue to apply as do the sections:

34.15.1 notice to enter land (section 58);

34.15.2 notice re rail infrastructure and rolling stock (sections 62B and 62C);

34.15.3 notice for connection (section 63(2);

34.15.4 application for consent to connect (section 63(5);

34.15.5 notice to connect (section 65);

34.15.6 application for build over (section 66);

34.15.7 terms and conditions of build over (section 66);

34.15.8 notice to remove tree (section 67);

34.15.9 notice to repair (section 68);

34.15.10 notice of contravention (section 69);

34.15.11 notice of intention to affect works (section 70);

34.15.12 notice to alter or remove works (section 71);

34.15.13 application for information statement (section 75);

34.15.14 notice of contravention of water supply protection (section 84);

34.15.15 new works (section 95); and

34.15.16 notice of disposition of land (section 176A).

34.16 Trade waste agreements

A trade waste agreement in force before 1 July 2012 to which a former licensee is a party, is taken to be a trade waste agreement to which the relevant Water Corporation is a party for the purpose of Part 9 of the Water Act.

34.17 Other transitional provisions

34.17.1 Any dispute that arose between former licensees or between a former licensee and a Water Corporation or public statutory body over a notice under sections 70 or 71 Water Industry Act dealing with removing or affecting works, and that dispute was notified to the ESC and is on foot, is taken to continue and may continue to be dealt with under the Water Industry Act.

34.17.2 The jurisdiction of VCAT continues to apply to proceedings pending before 1 July 2012.



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34.17.3 A permanent water saving plan of a former licensee is taken to be a permanent water saving plan of the relevant Water Corporation under section 170A of the Water Act.

34.17.4 A requirement imposed on a former licensee in relation to water for fire fighting and cleaning of sewers and drains imposed before 1 July 2012, is taken to be a requirement imposed under section 165 of the Water Act.

34.17.5 A meter installed or provided by a former licensee before 1 July 2012, is taken to be a notice provided or installed under section 142 of the Water Act.

35 REGULATION OF THE WATER INDUSTRY

35.1 The Water Industry Act still applies to the regulation of the water industry and applies to all Water Corporations.

35.2 The regulation of the Water Industry includes regulation by:

35.2.1 the ESC, through the issue of codes and determinations (see section 42 of this Manual for more information on this);

35.2.2 Statements of Obligations issued directly by the Minister.

Several changes were made to these provisions by the Water Amendment (Governance and Other Reforms) Act 2012.

35.3 Part 1A of the Water Industry Act provides that the water industry is a regulated industry. This essentially means that for those defined authorities, the Essential Services Commission Act 2001 will apply to them (see section 42 of this Manual for more information on this).

35.4 For the purposes of Part 1A of the Water Industry Act, the regulated water industry is defined to mean:

35.4.1 Melbourne Water Corporation;

35.4.2 Metropolitan Water Corporations

35.4.3 Regional Urban Water Authorities; and

35.4.4 Rural Water Authorities.

35.5 Regulation of the water industry begins with the Governor in Council making a Water Industry Regulatory Order (“WIRO”).

35.6 The WIRO came into operation on 1 January 2004 and was amended on 25 October 2005 and again on 12 June 2008. The purpose of the WIRO is to provide a framework for economic regulation by the ESC for services made, produced or supplied by or within the regulated water industry by:

35.6.1 specifying which goods and services are to be prescribed goods and services in respect of which the ESC has the power to regulate prices;



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35.6.2 declaring which goods and services are to be declared goods and services in respect of which the ESC has the power to regulate standards and conditions of service and supply;

35.6.3 specifying the approach to be adopted by the ESC in regulating the price of prescribed goods and services;

35.6.4 specifying particular matters to which the ESC must have regard in exercising its powers and functions under the WIRO;

35.6.5 conferring on the ESC certain functions in relation to monitoring, performing, reporting and auditing; and

35.6.6 conferring on the ESC certain functions in relation to dispute resolution.

35.7 Section 4I of the Water Industry Act sets out the processes for regulation via a Statement of Obligations. The Minister for Water, in consultation with the ESC and the Treasurer, may issue a Statement of Obligations, which applies to a regulated entity, being Melbourne Water, a metropolitan water corporation, a regional urban water authority or a rural water authority.

35.8 Statement of Obligations have been issued for all Water Corporations.

35.9 The Statement of Obligations include provisions relating to:

35.9.1 governance;

35.9.2 quality and performance of standards;

35.9.3 community service obligations;

35.9.4 customer and community consultation;

35.9.5 amounts that can be required for payments in relation to sewerage services;

35.9.6 the manner in which payments are to be made; and

35.9.7 compliance with the Statement of Obligations.

35.10 These entities must comply with a Statement of Obligations (section 4I(4)).

35.11 A provision of a Statement of Obligations prevails over a provision of any codes made by the ESC under section 4I(7).

36 EMERGENCY MANAGEMENT PLANS

36.1 An emergency management plan prepared under a Statement of Obligations issued under the Water Industry Act is taken to be an emergency management plan made under section 159A of the Water Act. (See Part 1 of this Manual, in particular section 21.4).

36.2 The Statement of Obligations for Water Corporations requires the drought response plans of the Water Corporations to be consistent. To meet this obligation, the Water



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Corporations and Melbourne Water have developed a Drought Response Protocol under the provisions of the Bulk Water Supply Agreement.

37 PERMANENT WATER SAVING PLANS

From 1 July 2012 a permanent water saving plan prepared pursuant to Division 1B of Part 3 in force immediately prior to 1 July 2012 is taken to be a permanent water saving plan of that Water Corporation under section 170A of the Water Act (see Part 1 of this Manual section 21.2).

38 ENFORCEMENT

38.1.1 Enforcement matters are now to be found in Part 14 of the Water Act. See Part 1 section 28 of this Manual.

38.1.2 Because of the transitional provisions, certain sections of the Water Industry Act and its regulations may still be relevant. Section 179 of the Water Industry Act provides that an authorised officer will normally bring a prosecution. However, a member of the police force is also authorised to do so.

39 PARKS VICTORIA

39.1 Abolition of Melbourne Parks and Waterways

39.1.1 In 1994 the Water Industry Act established the entity known as Melbourne Parks and Waterways.

39.1.2 Subsequently, the Water Industry (Amendment) Act 2000 amended the Water Industry Act by abolishing Melbourne Parks and Waterways, vesting land previously held by Melbourne Parks and Waterways in the Crown and bringing the operation of this land under the Crown Land (Reserves) Act 1978.

39.1.3 Parks Victoria has now taken on these responsibilities.

39.2 Power to make and levy rates

39.2.1 With the abolition of Melbourne Parks and Waterways, the Water Industry Act was further amended so as to clarify the rating of land previously held by Melbourne Parks and Waterways that is now not used exclusively as public open space or as a park. For this land, there is now provision in the Water Industry Act for the Governor in Council, on the recommendation of the Minister for Water and the Treasurer, to levy rates. The Governor in Council must first publish an order in the Victoria Government Gazette. The Minister may then levy a rate in relation to certain land (see section 139 Water Industry Act).

39.2.2 The Minister may also enter into an agreement with a metropolitan water corporation with respect to the collection on behalf of the Minister, of any rate levied under section 139. All amounts levied in payment of rates and interest received by, or collected on behalf of the Minister must be placed in the Parks Reserves Trust Account established under Part 4A.



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40 ENVIRONMENTAL CONTRIBUTIONS

40.1 The Water Industry (Environmental Contributions) Act 2004 amended the Water Industry Act to make provision for environmental contributions payable by Water Corporations.

40.2 The purpose for the collection of contributions is to promote the sustainable management of water and address adverse water related environmental impacts.

40.3 The amounts for the contributions made after 1 July 2008 are set out in section 193 of the Water Industry Act and for contributions up until 30 June 2012, can be found in Victoria Government Gazette No. S197 10 July 2008. No amounts have been set for periods beyond 30 June 2012.

41 REGULATIONS

41.1 General

41.1.1 Section 200 of the Water Industry Act states that:

“Despite the water corporation commencement, any regulations made under sections 50, 51, 52, 53 and 184 of the Water Industry Act 1994 are taken to continue in force as if any reference in those sections or any regulations made under those sections to licensee were a reference to metropolitan water corporation.”

41.1.2 It appears, therefore, that not only do metropolitan water corporations need to comply with the Regulations made under the Water Industry Act but also for regulations made under the Water Act where applicable.

41.2 Water Industry Regulations 2006

41.2.1 Objectives

The objectives of these Regulations set out below.

(a) To provide for the custody, testing and replacement of water meters and methods of estimating water consumption.

(b) To prescribe procedures and standards to be complied with in relation to the carrying out of water supply work and sewerage work and the installation of works in connection with that work.

(c) To provide for the maintenance and protection of works relating to water supply and sewerage.

(d) To prescribe trade waste for the purposes of the Water Industry Act.

(e) To regulate the discharge of trade waste including prescribing conditions of trade waste agreements and to provide for the termination of such agreements for non-compliance.

(f) To prescribe the rights given to a former licensee on the creation of an easement or a reserve when land is subdivided. Because of



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the transitional provisions, all easements and reserves are taken to be made under section 136 of the Water Act. Therefore, the relevant regulations should be, from 1 July 2012, the Water (Subdivisional Easements and Reserves) Regulations 2011) made under the Water Act.

(g) To prescribe the requirements for lodging notices in relation to the disposition of certain land. Because of the transitional provisions, arguably this would apply to anything received and in force prior to 1 July 2012, however, any notice post that date should be governed by the Water Act and the Water (Notice of Disposition of Land) Regulations 2010.

(h) To prescribe other matters authorised by the Water Industry Act.

41.2.2 Water meters

(a) Under the Water Industry Regulations, the owner or occupier of any property may request the relevant metropolitan water corporation to test the accuracy of any water meter installed on the property.

(b) If the original meter is found to be inaccurately registering the quantity of water passing, the relevant metropolitan water corporation must make a proportionate reduction in the quantity of water to be charged to the owner or occupier of the property.

(c) The owner or occupier of any property may request the relevant metropolitan water corporation to test the accuracy of any water meter installed on the property, in response to which, the relevant metropolitan water corporation must test the meter within 5 days, or replace the meter.

(d) Water meter usage may be estimated by comparison with the quantity of water supplied to the property under similar conditions during some other period.

41.2.3 Carrying out of water supply work and sewerage work

The Regulations make it a requirement that unless otherwise approved by the relevant metropolitan water corporation, every property to be connected to a sewer of the relevant metropolitan water corporation, must be drained separately to that sewer.

41.2.4 Trade waste

(a) Regulation 19 of the Water Industry Regulations sets out what is prescribed waste. The clause is lengthy and should be consulted directly.

(b) Prescribed trade waste includes food waste, scientific waste, laundry waste, ship waste, swimming pool waste and landfill runoff.



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(c) If a person intends to discharge any of these wastes into a sewerage system operated by a metropolitan water corporation, they will need to enter into an appropriate trade waste agreement with the metropolitan water corporation.

41.3 Water Industry (Prescribed Persons) Regulations 2003

These regulations prescribe which persons may bring proceedings for offences against a provision of Divisions 4 and 6 and Part 4 of the Water Industry Act in relation to land management and rating powers.



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PART 3 - OTHER DIRECT WATER RELATED ACTS AND ISSUES

42 ESSENTIAL SERVICES COMMISSION ACT 2001

42.1 Purpose

42.1.1 The purposes of the Essential Services Commission Act 2001 (“ESC Act”) are to:

(a) establish the Essential Services Commission (“ESC”); and

(b) to provide for an economic regulatory framework for regulated industries (including the water industry by virtue of section 4B of the Water Industry Act).

42.1.2 An essential service includes water and sewerage.

42.1.3 From 1 January 2004, the ESC became the economic regulator of the Victorian water sector.

42.2 Objectives of the ESC

42.2.1 A stated objective of the ESC is to protect the long term interests of Victorian consumers with regard to the price, quality and reliability of essential services.

42.2.2 The ESC is subject to the direction or control of the Minister for Finance.

42.2.3 The ESC may publish statements and guidelines relating to the performance of its functions and it must develop and publish a Charter of Consultation and Regulatory Practice. These documents are available at the ESC’s website at www.esc.vic.gov.au.

42.2.4 The ESC may regulate prescribed prices for, or in respect of, prescribed goods and services supplied by or within a regulated industry (section 32(1)).

42.2.5 The ESC may exercise such powers (including the power to make Price Determinations) for or with respect to (section 34):

(a) standards and conditions of service and supply;

(b) licensing;

(c) market conduct; and

(d) other economic regulatory matters.

42.2.6 The ESC may also conduct inquiries into essential services conduct.

42.2.7 The ESC has enforcement powers under the ESC Act. A person must comply with an order of the ESC or be liable for a penalty of up to 5000 penalty units.

http://www.esc.vic.gov.au/



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42.3 ESC reports/codes/determinations

42.3.1 Information regarding all water industry issues governed by the ESC can be found on the ESC website: www.esc.vic.gov.au.

42.3.2 The ESC is responsible for regulating prices for certain water and sewerage services provided by Victorian Water Corporations. Its price regulation role relates exclusively to the prescribed services set out in the WIRO. Each year the ESC approves the maximum tariffs that each business can charge consistent with that business’ determination. On 31 July 2007 the ESC commenced a review of the prices to apply to water and sewerage services for the second regulatory period, which is due to expire at the end of July 2013. It has started to review prices for the third regulatory period being 2013-2018.

42.3.3 Each water business is required to submit a water plan for the five year period commencing 1 July 2013. The ESC is to assess water plans against certain principles outlined in the WIRO and decide whether to approve or specify prices, or the manner in which prices are to be determined for the services provided by those businesses over the regulatory period.

42.3.4 Regulation and compliance publications of the ESC include the:

(a) Trade Waste Customer Service Code - June 2012;

(b) New Customer Contributions Final Decision – May 2011;

(c) Determination – Amendment to 2008 and 2009 Price Determination Relating to New Customer Contributions – May 2011;

(d) Customer Service Code Victorian Urban Water Businesses – June 2012;

(e) Customer Service Code Victorian Rural Water Business – June 2012; and

(f) Water Industry Regulatory Accounting Code.

42.3.5 Under section 4F(6) of the Water Industry Act, a regulated entity must comply with any provision of a Code which applies to the regulated entity.

42.3.6 The ESC may also require a regulated entity to provide the ESC with information. The form of the notice is set out in section 4G(2) of the Water Industry Act. A regulated entity must comply with a notice under this section. The penalty for non-compliance is 120 penalty units (section 4G).

42.3.7 Regulated entities are required to make a contribution towards the cost of the ESC (section 4H Water Industry Act).

http://www.esc.vic.gov.au/



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43 THE ENERGY AND WATER OMBUDSMAN

43.1 Ombudsman

43.1.1 The Energy and Water Ombudsman Victoria (“EWOV”) Scheme was established the Energy and Water Ombudsman (Victoria) Limited (“EWOV Limited”) a company limited by guarantee.

43.1.2 The mission of EWOV Limited is to receive, investigate and facilitate the resolution of complaints and disputes between consumers and entities participating in the EWOV scheme (“Participant”).

43.1.3 The procedures and functions of the EWOV are set out in the Energy and Water Ombudsman Charter - 30 May 2006, which is available from the EWOV website at http://www.ewov.com.au/.

43.2 Functions of the EWOV

43.2.1 The functions of the Ombudsman are to receive, investigate and facilitate the resolution of:

(a) complaints as to the provision or supply of (or the failure to provide or supply) electricity, gas or water services by a “Participant” to a customer as required by a licence or agreement, under legislation or under an applicable industry code (a water service includes sewerage and drainage);

(b) billing disputes;

(c) the administration of credit and payment services in the circumstances of a particular customer;

(d) disconnection, restriction and refundable advance complaints;

(e) complaints from owners or occupiers of land or other property about the way in which a Participant has exercised its statutory powers in relation to that particular land or other property or in relation to neighbouring land or other property;

(f) complaints referred by the ESC in relation to the conduct of a Participant’s electricity, gas or water services business; and

(g) such other complaints as may, by agreement with the Ombudsman and the complainant, be referred to the Ombudsman by a Participant.

43.3 Procedures

43.3.1 In summary, on receiving a complaint, the EWOV will verify with an officer designated by the Participant concerned whether the Participant has had the opportunity to consider the complaint.

43.3.2 The Ombudsman may proceed to investigate the complaint only after the Participant has had this opportunity, subject to reasonable time limits

http://www.ewov.com.au/



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to avoid undue delay in dealing with the complaint, and the Participant has been notified that the Ombudsman intends to investigate the complaint.

43.3.3 Within 28 days of receiving notification of an investigation by the Ombudsman, the Participant concerned must provide to the Ombudsman all documentation relevant to the complaint other than documentation containing confidential information of a third party, who despite the reasonable efforts of the Participant, has refused to consent to disclosure of the information to the Ombudsman. If a dispute arises in relation to the provision of documents, the Ombudsman, in his or her absolute discretion, is to determine whether the documents or any of them are to be produced. The Ombudsman must act in accordance with accepted privacy principles. In complying with any subpoena for production of documents, the Ombudsman must notify the person who has provided the information which is the subject of the subpoena, so that the person concerned is afforded the opportunity to appear in court to oppose production of the documents.

43.3.4 Fees for use of the EWOV Scheme will not be charged to, or costs be awarded against, residential and small business customers.

43.3.5 The EWOV also has a discretion not to investigate complaints.

43.3.6 After completion of an investigation, and in the absence of a conciliated settlement of a complaint, the Ombudsman shall resolve a complaint by either dismissing the complaint or, amongst other things by:

(a) making a determination that the Participant, the subject of investigation, pay compensation to a complainant (provided this amount is under $20,000, unless otherwise agreed and the agreed amount does not exceed $50,000);

(b) directing a Participant to provide an electricity, gas or water service; or

(c) directing a Participant to do, not to do, or to cease doing, an act.

44 CONSTITUTION (WATER AUTHORITIES) ACT 2003

44.1 The purpose of this legislation (since repealed) was to amend the Constitution Act 1975 so as to entrench the responsibility of public authorities for ensuring the delivery of water services and their accountability to responsible Ministers.

44.2 The Constitution (Water Authorities) Act 2003 inserted Part VII – Delivery of Water Services into the Constitution Act 1975. Part VII provides for the continued responsibility for ensuring the delivery of a water service by a public authority.

44.3 The term "public authority" is defined to mean:

44.3.1 a public statutory authority;

44.3.2 a Council within the meaning of the Local Government Act 1989;



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44.3.3 a company (within the meaning of the Corporations Act 2001) in which all the shares in which are held by or on behalf of the State (originally designed to include the former licensees); or

44.3.4 an Agency Head within the meaning of the Public Sector Management and Employment Act 1998 who is a corporation sole.

44.4 The term "public statutory authority" is defined to mean a body, whether corporate or unincorporated, that is established by or under an Act for a public purpose, but does not include a company (within the meaning of the Corporations Act 2001) in which all the shares are not held by or on behalf of the State.

44.5 The term "water service" means a service relating to:

44.5.1 water supply;

44.5.2 sewerage;

44.5.3 irrigation;

44.5.4 water collection and storage; or

44.5.5 sewage treatment

for ensuring the delivery of which a public authority has responsibilities under water legislation, including under a licence issued under water legislation.

45 ESSENTIAL SERVICES ACT 1958

45.1 The stated purpose of the Essential Services Act 1958 (“ES Act”) is to protect the community against the interruption and dislocation of essential services.

45.2 The term “essential services” includes water and sewerage provided by Water Corporations.

45.3 Where at any time it appears to the Governor in Council that any action has been taken or is likely to be taken that would threaten an essential service and the health or safety of the public, or the good order of Victoria is at stake, the Governor In Council may declare a state of emergency.

45.4 No such proclamation shall be in force for more than 1 month, but another such proclamation may be made subsequent to that.

45.5 If a state of emergency is called, the Minister (in this case the Premier) may provide, operate, control, regulate and direct that essential service. To that effect he or she may:

45.5.1 direct what services shall be maintained and upon what terms and conditions they shall operate;

45.5.2 direct at what times and places, upon what terms and conditions and in what manner services may be used or availed of;

45.5.3 prohibit the operation or use of the service;



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45.5.4 requisition the use of property of any kind in connection with that service; and

45.5.5 provide for or control by direction, prohibition or requisition, the operation, use and disposal of any property or commodity used for the service.

45.6 Any person or body who has to comply with a direction, prohibition or requisition and suffers damage or injury is entitled to compensation under the ES Act.

45.7 Sections 11 to 13 of the ES Act provide a penalty for strike action and lock outs for essential services.

46 SAFE DRINKING WATER ACT 2003

46.1 General

46.1.1 Somewhat obviously, the purpose of the Safe Drinking Water Act 2003 (“SDW Act”) is to make provision for the supply of safe drinking water.

46.1.2 The SDW Act came into effect on 1 July 2004 and is the first Act in Victoria to deal specifically with the regulation of drinking water. Prior to the commencement of the SDW Act, drinking water was regulated by the Health Act 1958 and the Food Act 1984 (more of which is discussed in section 47 of this Manual).

46.1.3 The Drinking Water Regulatory Section of the Department of Health is responsible for the administration of the SDW Act.

46.1.4 The SDW Act requires “water suppliers” and “water storage managers” to manage water to ensure it is safe to supply to the public. These terms are defined in the SDW Act as:

(a) The term “water supplier” means any of the following that supply drinking water or regulated water to the public:

(1) an authority within the meaning of the Water Act (ie, Water Corporations and CMAs);

(2) Parks Victoria;

(3) an Alpine Resort Management Board; and

(4) any other person or body declared by the regulations to be a water supplier for the purposes of the SDW Act (none prescribed).

(b) The term “water storage managers” means:

(1) Melbourne Water Corporation;

(2) the following if they supply water to a water supplier:

(A) an authority within the meaning of the Water Act (ie, Water Corporations and CMAs); and



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(B) any other person declared by the Regulations (none prescribed).

46.1.5 The term “regulated water” is defined to mean water that is the subject of a declaration made by the Minister under section 6 of the SDW Act. Under section 6, the Minister may by notice, published in the Victoria Government Gazette, declare any water that is not drinking water to be regulated water for the purposes of the SDW Act. As at October 2012, several declarations have been made. Notably:

(a) S 152 – Wednesday, 18 May 2011

(b) G 35 – 2 September 2010

(c) S 203 – Thursday, 3 June 2010

(d) S 241 – Monday, 13 July 2009;

(e) S 135 – Tuesday, 19 May 2009;

(f) S 26 – Monday, 23 February 2009;

(g) S 254 – Wednesday, 17 September 2008;

(h) S 168 – Thursday, 26 June 2008;

(i) S 64 – Friday, 14 March 2008;

(j) S 3 – Tuesday, 8 January 2008;

(k) S 143 – Friday, 29 June 2007;

(l) S 117 – Monday, 28 May 2007;

(m) S 28 – Thursday, 15 February 2007;

(n) G 35 – Thursday, 31 August 2006;

(o) G 31 – Thursday, 3 August 2006;

(p) G 27 – Thursday, 6 July 2006; and

(q) G 47 – Thursday, 24 November 2005.

46.2 Risk management plans

46.2.1 A water supplier must prepare and implement a risk management plan in relation to its drinking water and regulated water (section 7(1)). A person who was a water supplier immediately before 1 July 2004 must comply with this section by 1 July 2005. In any other case, within 12 months after the date the person becomes a water supplier (section 7(2) SDW Act).

46.2.2 Similarly, a water storage manager must prepare a risk management plan in relation to its supply of water to a water supplier (section 8(1)).



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The compliance requirements are the same as for a water supplier. The Secretary to the Department of Health (“Secretary”) may exempt a water supply manager from having to comply with section 8(1) in certain situations. These will be dealt with on a case by case basis.

46.2.3 A risk management plan in relation to the supply of water must (section 9 SDW Act):

(a) contain a detailed description of the system of supply;

(b) identify the risks to the quality of the water and the risk that may be posed by the quality of water;

(c) assess those risks;

(d) set out the steps to be taken to manage those risks (including the development and implementation of preventative strategies); and

(e) contain any other matters required by the Safe Drinking Water Regulations 2005 (“SDW Regs”).

46.2.4 Regulation 6(1) of the SDW Regs sets out further matters which a risk management plan must contain. The SDW Regs should be consulted in order to prepare a proper risk management plan.

46.3 Audits of risk management plan

46.3.1 A risk management plan audit is an audit by an approved auditor to determine whether a water supplier or a water storage manager has complied with the obligations under the SDW Act.

46.3.2 The Secretary may specify the audit period for a risk management plan of a water supplier or water storage manager (section 11(1) SDW Act). A water supplier or water storage manager must comply with a notice under this section at its own expense (section 11(2) SDW Act).

46.3.3 Only approved auditors may conduct audits (section 14 SDW Act), however, a water supplier or water storage manager may request the Secretary to approve a natural person to conduct risk management plan audits of the supplier’s or manager’s risk management plan (section 13 SDW Act).

46.3.4 Regulation 7 of the SDW Regs sets out the specific documents that an auditor must inspect when carrying out an audit. Those water bodies subject to the SDW Act must make sure that these documents are made available to the auditor.

46.4 Drinking water quality standards

46.4.1 A water supplier must ensure that all drinking water supplied by it to another person complies with the quality standards specified for drinking water in the SDW Regs (section 17(1) SDW Act).

46.4.2 These standards are set out in Regulation 10 of the SDW Regs.



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46.4.3 A water supplier must notify the Secretary if it becomes aware that the drinking water it is supplying to another person does not comply, or is not likely to comply, with any relevant water quality standard within 10 days after it becomes aware of the fact. The penalty for not doing so is 120 penalty units (section 18 SDW Act).

46.4.4 A water supplier may apply to the Minister to vary an aesthetic standard as it applies to drinking water. The term “aesthetic standard” means a water quality standard that the regulations state is not primarily intended to protect public health and may be varied under this section. An application must set out a number of things listed in section 19(3) of the SDW Act.

46.4.5 A water supplier may apply to the Minister to be exempted from a water quality standard as it applies to drinking water supplied by the water supplier. The application must set out the things listed in section 20(2) of the SDW Act.

46.5 Disclosure and reporting requirements

46.5.1 If an officer or a water supplier, water storage manager or council believes or suspects, on reasonable grounds, that water supplied, or to be supplied, for drinking purposes:

(a) may be the cause of an illness; or

(b) may be the means by which an illness is or will be transmitted; or

(c) may contain any pathogen, substance, chemical or blue-green algae toxin, whether alone or in combination, at levels that may pose a risk to human health; or

(d) may cause widespread public complaint,

then on forming that belief or suspicion, the officer must immediately report his or her belief or suspicion to the Secretary (section 22(1) SDW Act). The penalty for not complying with this section is 120 penalty units (section 22(2) SDW Act).

46.5.2 If the belief of the officer is based on what the officer believes on reasonable grounds to be improper conduct on the part of a public officer or public body, then the Whistleblowers Protection Act 2001 applies to the officer’s report to the Secretary as if it was a protected disclosure under that Act (section 22(3) SDW Act).

46.5.3 Results of any water quality monitoring program that it conducts on drinking water must be made available to the public within 7 days of compiling the results (sections 23(1) & 23(2) SDW Act). A water supplier must not publish any information that is false or misleading (section 22(3) SDW Act). The penalty for not complying with section 23(3) is 240 penalty units.

46.5.4 A water storage manager must give information required by the water supplier to the water supplier. If a dispute arises between the water



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storage manager and the water supplier then the dispute is referred to the Secretary for adjudication (section 24 SDW Act).

46.5.5 A water supplier who supplies regulated water must ensure that the recipients are made aware of the nature of the water and the health risks that may arise from the use of the water (section 25 SDW Act).

46.5.6 A water supplier must give the Secretary an annual report on the issues relating to the quality of drinking water and regulated water specified in Regulation 15 of the SDW Regs (section 26 SDW Act).

46.5.7 Water supplies have an obligation under the SDW Regs to collect and sample drinking water from water sampling points at water sampling localities. Water sampling locations are specified in the Victoria Government Gazette.

46.6 Administrative and enforcement matters

46.6.1 Division 1 of Part 4 of the SDW Act sets out the general functions and powers of the Secretary. In order to carry out his or her functions under the SDW Act the Secretary can:

(a) accept undertakings from the water supplier or water storage manager in the case of a contravention or likely contravention of the SDW Act or SDW Regs. The supplier or manager cannot be prosecuted in relation to a contravention that is the subject of a completed undertaking or a current undertaking unless the undertaking is being breached (section 30 SDW Act);

(b) issue an enforcement notice for contravention of certain sections or in relation to a breached undertaking. The penalty for not complying is 240 penalty units (section 31 SDW Act);

(c) give an annual report to the Minister in relation to drinking water quality (section 32 SDW Act); and

(d) establish and maintain a register listing each variation of aesthetic standards; exemptions of water quality standards and each undertaking under section 30 (section 33 SDW Act).

46.6.2 Division 2 of Part 4 of the SDW Act sets out the powers of the Secretary in relation to incident management. If the Secretary considers that there is a risk to public health, he or she may direct the water supplier or water storage manager to:

(a) give the Secretary information;

(b) take corrective action;

(c) purify the water;

(d) monitor the water;



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(e) provide alternative supplies of drinking water; and

(f) notify customers that water should be boiled or treated in another way.

46.6.3 A water supplier or water storage manager must comply with a direction of the Secretary. The penalty for not doing so is 240 penalty units (section 34 SDW Act).

46.6.4 If the Secretary believes that there is an immediate risk to a water supply premises he or she may authorise an authorised officer to enter the premises, upon which the authorised officer may do certain things set out in section 36(3) of the SDW Act, including taking water samples, seizing anything on the premises and destroying anything on the premises posing a public health risk.

46.6.5 The authorised officer cannot enter a residence without the permission of the occupier (section 36(4) SDW Act) and the authorised officer must announce that he or she is authorised under section 36 of the SDW Act to enter the premises (section 38 SDW Act).

46.6.6 Sections 41, 42, 44 and 45 of the SDW Act relate to what can be done in relation to seized items.

46.6.7 A person is not excused from not complying with a direction made under this division on the basis that complying with the direction may result in information being provided that might incriminate the person (section 47 SDW Act). Any information obtained that is required to be kept by law by a water supplier, water storage manager or an officer, employee or agent of a water supplier or water storage manager or that was obtained without the direct assistance of the person, is admissible in evidence against the person in criminal proceedings.

46.6.8 Section 48 of the SDW Act sets out the appointment procedures for authorised officers. It is an offence to obstruct, hinder or refuse to comply with a lawful request of an authorised officer or to refuse admission to any premises of an authorised officer while he/she is exercising his/her power under the SDW Act. The penalty for breaching this section 49 is 60 penalty units. A person must not impersonate an authorised officer: penalty, 60 penalty units (section 50 SDW Act).

46.6.9 Each water supplier and water storage manager is required to pay a levy in respect of any period specified by the Minister to assist in defraying the costs of administering the SDW Act (section 51 SDW Act). The costs of administering the SDW Act are the costs and expenses incurred, or that are likely to be incurred, by the Secretary in carrying out his/her functions under the SDW Act, except for Part 4, Division 2 - Incident Management. The amount of the levy is determined as set out in section 53 of the SDW Act.

46.6.10 A person must not provide to the Secretary any false or misleading information or documents. The penalty for doing so is 240 penalty units (section 55 SDW Act).



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47 FOOD ACT 1984

47.1 General

47.1.1 The definition of “food” in the Food Act 1984 is broad enough to encompass “water” because the definition includes:

“any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared)”.

47.1.2 Water is a substance that can be used for human consumption and therefore is considered food.

47.1.3 From 1 January 2002, the provisions of the Food Act (other than those provisions specifically excluded as mentioned below) have application to water suppliers in Victoria, insofar as the supply of water is for human consumption.

47.2 Impact on water suppliers

47.2.1 Section 6B of the Food Act relates to “water suppliers”. A “water supplier” is defined in section 6B(2) as:

(a) a water supplier within the meaning of section 3 of the Safe Drinking Water Act 2003;

(b) a body that is constituted by or under an Act and that has one of its functions the supply of water for human consumption;

(c) a person that is employed or engaged by such a water supplier or body to supply water for human consumption; and

(d) any body or person prescribed by the regulations for the purpose of this section.

This includes Water Corporations under the Water Act.

47.2.2 Section 6B(1) of the Food Act states that several of the provisions of the Food Act do not apply in the situation where the water supplier supplies water for human consumption though a reticulated water system.

47.2.3 Offences which do not apply to water suppliers in the above circumstance are:

(a) handling food in an unsafe manner - (knowingly section 8 or in other circumstances section 8A Food Act);

(b) falsely describing food - (knowingly section 10 or in other circumstances section 10A Food Act);

(c) handling food intended for sale in a manner that will render, or is likely to render, the food unsafe or unsuitable (section 11(1) and section 12(1) Food Act);



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(d) engaging in conduct that is misleading or deceptive in relation to advertising, packaging or labelling food in the course of carrying on a food business (section 13 Food Act);

(e) supplying food by way of sale if that food is not of the nature or substance demanded by the purchaser (section 14 Food Act); and

(f) selling equipment or packaging or labelling material if it would render the food unsafe (section 15 Food Act).

47.2.4 Several provisions of the Food Act also exempt water suppliers from:

(a) certain provisions of the Food Standards Code (section 16 Food Act);

(b) registering their premises as food premises (Part 6 Food Act); and

(c) dealing with authorised officers (Part 4 Food Act).

47.2.5 Those offences which do apply to water suppliers where water is supplied for human consumption through a reticulated water system are:

(a) knowingly selling unsafe food (section 9 Food Act);

(b) selling unsafe food that the person ought to reasonably know is unsafe (section 9A Food Act);

(c) selling food that is unsafe (section 11(2) Food Act); and

(d) selling food that is unsuitable (section 12(2) Food Act).

47.2.6 The term “sell” is widely defined in the Food Act. Other than the obvious, it includes: “have in the possession for sale”, “display for sale”, “cause or permit to be sold or offer for sale” and “provide under a contract of service”.

47.2.7 The definition of “unsafe” in section 4D of the Food Act is:

“(1) For the purposes of this Act, food is “unsafe” at a particular time if it would be likely to cause physical harm to a person who might later consume it, assuming—

(a) it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use; and

(b) nothing happened to it after that particular time and before being consumed by the person that would prevent it being used for its reasonable intended use; and

(c) it was consumed by the person according to its reasonable intended use.



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(2) However, food is not unsafe for the purposes of this Act merely because its inherent nutritional or chemical properties cause, or its inherent nature causes, adverse reactions only in persons with allergies or sensitivities that are not common to the majority of persons.

(3) In sub-section (1), “processes” include processes involving storage and preparation.”

47.2.8 The definition of “unsuitable” in section 4E of the Food Act is:

“(1) For the purposes of this Act, food is “unsuitable” if it is food that—

(a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use; or

(b) contains any damaged, deteriorated or perished substance that affects its reasonable intended use; or

(c) is the product of a diseased animal, or an animal that has died otherwise than by slaughter, and has not been declared by or under another Act to be safe for human consumption; or

(d) contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food.

(2) However, food is not unsuitable for the purposes of this Act merely because—

(a) at any particular time before it is sold for human consumption it contains an agricultural or veterinary chemical; or

(b) when it is sold for human consumption it contains an agricultural or veterinary chemical, so long as it does not contain the chemical in an amount that contravenes the Food Standards Code; or

(c) it contains a metal or non-metal contaminant (within the meaning of the Food Standards Code) in an amount that does not contravene the permitted level for the contaminant as specified in the Food Standards Code; or

(d) it contains any matter or substance that is permitted by the Food Standards Code.

(3) In this section, “slaughter” of an animal includes the killing of an animal in the process of capturing, taking or harvesting it for the purposes of preparing it for use as food.”



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47.3 Offences

47.3.1 It is possible, that if a Water Corporation sells unsafe or unsuitable water intended for human consumption, then it may be subject to a penalty under the Food Act. An offence under the Food Act in relation to a corporation can attract a fine of up to $500,000.

47.3.2 An offence is deemed to have been committed by a corporation (including a Water Corporation) if an employee of the corporation has committed the offence. Directors of the corporation will also be guilty if a corporation is held to be guilty.

47.4 Defences

47.4.1 The definition in relation to “unsafe food” states that food (water) must be consumed by a person according to its reasonable intended use.

47.4.2 Section 17E of the Food Act provides for a due diligence defence. Subsection 17E(1) states that it is a defence if it is proved that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence.

47.4.3 A person may satisfy the due diligence requirement in a number of ways. Subsection 17E(2) sets out several ways that this defence may be satisfied. The defence may be satisfied if a person carried out all such checks of the food concerned as were reasonable in the circumstances.

48 UTILITY METERS (METROLOGICAL CONTROLS) ACT 2002

48.1 The Utility Meters (Metrological Controls) Act 2002 (“UMMC Act”) was repealed on 1 August 2010 by Section 85 of the Consumer Affairs Legislation Amendment Act 2010.

48.2 The function of trade measurement was taken over by the Commonwealth National Measurement Institute and the National Measurement Act 1960 (Cth).

48.3 The Consumer Affairs Legislation Amendment Act 2010 repealed the UMMC Act, the Trade Measurement Act 1995 and the Trade Measurement (Administration) Act 1995. The Act included transitional provisions to assist the National Measurement Institute establish the National Trade Measurement System. Part of the Government’s reasoning to go to a Federal system related to irrigation and water measurement in the irrigation districts of Victoria.

49 NATIONAL MEASUREMENT ACT 1960

49.1 General

The National Measurement Act 1960 (Cth) (“NM Act”) establishes a national system of units and standards of measurement and provides for the uniform use of those units and standards throughout Australia.



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49.2 Regulatory framework

The NM Act establishes a framework for the regulation of measuring instruments used for trade, and provides a system of verification of utility meters used for trade. A utility meter is defined to include a water meter. The NM Act is supported by the:

49.2.1 National Measurement Regulations 1999 (Cth);

49.2.2 National Measurement Guidelines 1999;

49.2.3 National Trade Measurement Regulations 2009 (Cth).

49.3 Using measuring instruments for trade

49.3.1 Part IV of the NM Act sets out:

(a) how measuring instruments must be verified and used; and

(b) offences.

49.3.2 The term “utility instrument” is defined to mean a measuring instrument that is a water meter.

49.3.3 The following are offences under the NM Act:

(a) It is an offence to use a measuring instrument for trade in such a way that it gives an inaccurate measurement (including a statement as to price).

(b) It is an offence to use, let, hire or loan a measuring instrument for trade if it is not verified.

(c) It is an offence to mark a measuring instrument with a verification mark if not permitted to do so, or with an inappropriate mark.

(d) It is an offence if a person installs or sells a measuring instrument for trade that is not an approved pattern.

49.4 Verifying utility meters

49.4.1 A utility meter verifier may verify a utility meter. Part 13 of the NM Act deals with utility meter verifiers. The Secretary to the Department of Industry, Innovation, Science, Research and Tertiary Education may appoint a state public authority as a utility meter verifier.

49.4.2 The requirements for verification of a measuring instrument are that:

(a) the measuring instrument must operate within the appropriate units of error; and

(b) the measuring instrument must be of an approved pattern.



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49.5 Servicing licence

49.5.1 Individuals and organisations involved in verifying measuring instruments used for trade must hold a servicing licence.

49.5.2 Information on the licensing scheme under the NM Act can be found in the “Information Pack for Servicing Licence Applicants”. (See National Measurement Institute website www.measurement.gov.au).

50 FINANCIAL COMPLIANCE

50.1 General

The various powers and obligations of Water Corporations in relation to financial compliance traverse many pieces of legislation.

50.2 The Audit Act

50.2.1 The Audit Act 1994 requires Water Corporations to be audited by the Auditor-General for the purposes of accountability to Parliament. The Auditor-General may also conduct performance audits or other investigations which may affect Water Corporations.

50.2.2 The Auditor-General has broad powers to call on persons or documents. The penalty for failing to attend the Auditor-General has increased significantly since 2003. Water Corporations should ensure that they carefully consider any recommendations by the Auditor-General which affect their operational, financial and strategic activities.

50.3 Water Act

50.3.1 Owner finance

(a) Sections 196 and 197 of the Water Act set out owner finance provisions. In short, a Water Corporation may require the owner of property to meet the cost of works used for in connection with or incidental to the carrying out of functions in the waterway management district or the increase in such a use.

(b) Division 6 of Part 13 of the Water Act sets out further owner finance provisions. A Water Corporation under this Division may require the Owner or property to meet the cost of works for services. This division does not apply to Melbourne Water except where Melbourne Water is acting under sections 196 or 197.

50.3.2 Corporate plan

Each year, Water Corporations must submit to the Minister and the Treasurer corporate plans and receipts and expenditures of the Water Corporation.



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50.3.3 Rate collection

The capacity to make charges and levy rates is detailed under the Water Act and Water Industry Act, which is outlined elsewhere in this Manual.

50.4 Borrowing and Investment Powers Act 1987

50.4.1 The Borrowing and Investment Powers Act 1987 regulates loans, leases for financing and other investment powers of a Water Corporation under the Water Act if it has been declared to be subject to that Act.

50.4.2 The Borrowing and Investment Powers Act requires Water Corporations to obtain the Treasurer’s approval to take an overdraft, obtain short and long term financial accommodation (ie, borrowing or investments) in and outside of Australia.

50.4.3 When undertaking any borrowing or investment, officers should check that the relevant sections of this legislation are complied with.

50.5 Financial Management Act 1994

50.5.1 The Financial Management Act 1994 applies to Water Corporations as statutory authorities. Generally, this Act requires:

(a) accounts, asset registers and risk management strategies to be implemented and maintained;

(b) a report on the operations of the Water Corporation to be submitted in compliance with the provisions of this Act to the Minister;

(c) financial statements to be prepared and submitted within 8 weeks after the end of each financial year, and whenever requested within 4 weeks; and

(d) compliance with the Standing Directions issued by the Minister for Finance under the Financial Management Act (“Standing Directions”).

50.5.2 The Minister for Finance has issued Standing Directions pursuant to the Financial Management Act which require public bodies (including Water Corporations) to implement and maintain appropriate financial management practices. The Victorian Department of Treasury and Finance has published the Standing Directions and supporting documents, which can be accessed at: www.dtf.vic.gov.au. The current form of Standing Directions came into effect on 1 July 2003. Associated with the Standing Directions are rules to encourage the application of Government policy relating to purchasing cards, theft and losses and tax compliance.

50.5.3 The Standing Directions are broad in scope, and cover: financial governance, financial codes of practice, financial risk management, authorisations, internal and external audits, IT systems, training, policies

http://www.dtf.vic.gov.au/



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and procedures, internal financial reporting, performance and evaluation, purchasing cards, and theft and losses reporting.

50.5.4 The Minister for Finance has also provided general guidance on these Standing Directions in the form of guidelines and templates. These can be accessed at http://www.dtf.vic.gov.au/.

50.6 Project Development and Construction Management Act 1994

50.6.1 General

The Minister for Planning has issued four Ministerial Directions in relation to public construction under the Project Development and Construction Management Act 1994 (“PDCM Act”):

(a) Ministerial Direction No. 1 Tendering Provisions for Public Construction.

(b) Ministerial Direction No. 2 Contractual Provisions for Public Construction.

(c) Ministerial Direction No. 3 Bushfire Provisions for Buildings of a Public Nature.

(d) Ministerial Direction No. 4 Construction Requirements for a Community Fire Refuge.

50.6.2 Each Direction has an associated guide published by the Department of Planning and Community Development.

50.6.3 These Directions apply to any public construction undertaken by, or on behalf of, any department or public body, unless determined by the Minister.

50.6.4 Therefore, these Directions apply to Water Corporations if they undertake any public construction.

50.6.5 Public construction means any matter relating to the construction, maintenance, rehabilitation, alteration, extension or demolition of any improvements on land by, or on behalf of, departments or public bodies and includes:

(a) design and construction practices;

(b) tendering processes;

(c) project delivery; and

(d) contract administration.

50.7 Tendering Provisions (Ministerial Direction No. 1) (as in effect 1 July 2008)

50.7.1 This Ministerial Direction requires adherence to the tendering requirements below before entering into any contract. These requirements can be waived if the Minister or Accountable Officer

http://www.dtf.vic.gov.au/



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believe that there are special circumstances to do so (eg, urgent work, specialised security work).

(1) Building and Construction work

Estimated cost of work Tendering requirement

less than $25,000 one written tender

$25,000 to $200,000 three written tenders

$200,000 or more tenders called by public advertisement OR

tenders from 3 or more pre-qualified contractors

(2) Consultancy services

Estimated cost of work Tendering requirement

less than $25,000 one written proposal

$25,000 to $150,000 proposals called by public advertisement OR

proposals from 3 or more pre-qualified contractors

$150,000 or more tenders called by public advertisement OR

proposals from 3 or more pre-qualified contributors

50.8 Contract Provisions (Ministerial Direction No. 2) (as in effect 1 December 1996)

50.8.1 This Ministerial Direction requires that:

(a) general conditions of contract, standard in the industry and where possible Australian Standards, are to be used;

(b) special conditions of contract are to be kept to a minimum and are not to be onerous;

(c) contract conditions shall, as far as practicable, allocate risks to the party best able to manage the risk;

(d) where applicable, the head contract should remain unamended other than to reflect head contract conditions;

(e) general conditions of contract, including special conditions, must be in a form approved by the Secretary, Department of Infrastructure or a person authorised in writing by the Secretary;

(f) at least 6 months notice shall be given by the Secretary for the withdrawal of approval to use a form of contract; and



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(g) contract values applicable to particular forms of contract and other matters shall be specified in the Guide to Contractual Provisions for Public Construction, published from time to time by the Secretary, which is incorporated into the Direction.

50.8.2 Contracts must provide for:

(a) fair entitlement to payment;

(b) prompt payment;

(c) proof of payment to subcontractors and suppliers;

(d) the use of bank guarantees as an alternative to cash securities; and

(e) alternative dispute resolution.

50.8.3 Contracts must prohibit:

(a) the use of "pay when paid" and "pay if paid" clauses in subcontract; and

(b) the amendment of clauses relating to payment timing in subcontract.

50.9 Taxation

Water Corporations should consider the following issues:

50.9.1 Water Corporations have the capacity to undertake joint ventures or hold shares in companies, etc. Taxation implications of such action should be considered before any such ventures are undertaken, often they will not be tax exempt.

50.9.2 Goods and Services Tax (“GST”) is not payable on money appropriated under Australian law for use by a Water Corporation. However, when a government authority expends funds on goods and services to further its operations, the normal GST rules will apply. In other words, use of such government funds for purchases will require the supplier to collect GST from a Water Corporation.

51 NATIONAL CREDIT CODE

51.1 Introduction

51.1.1 Recent reforms to consumer credit law have resulted in a single national consumer credit regime governed by the National Consumer Credit Protection Act 2009 (Cth) (“NCCP Act”).

51.1.2 The NCCP Act includes a National Credit Code (“NCC”) as a Schedule 1 to the NCCP Act.

51.1.3 The NCC replaces the State based Consumer Credit Code (“UCCC”).



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51.1.4 ASIC is responsible for administering the NCCP Act.

51.2 Application

51.2.1 The NCC applies to credit contracts entered into on or after 1 July 2010 where:

(a) the lender is in the business of providing credit;

(b) a charge is made for providing the credit;

(c) the debtor is a natural person or corporation;

(d) the credit is provided:

(1) for personal, domestic or household purposes;

(2) to purchase, renovate or improve residential property for investment purposes or to refinance credit previously provided for this purpose.

51.2.2 The NCC does not apply to bill facilities or staff loans.

51.2.3 The NCC largely incorporates the UCCC.

51.2.4 For more information see www.asic.gov.au and click on “credit”.

51.2.5 Whether NCCP Act applies to Water Corporations or not depends on the facts and the project involved. Legal advice should be sought on this matter.

http://www.asic.gov.au/



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PART 4 - PLANNING AND ENVIRONMENT

52 PLANNING AND ENVIRONMENT ACT 1987

52.1 General

52.1.1 The main piece of legislation dealing with development and use of land in Victoria is the Planning and Environment Act 1987 (“P&E Act”).

52.1.2 Water Corporations have many responsibilities that would trigger the P&E Act, namely responsibilities as:

(a) land owners/managers;

(b) land, waterway and drainage areas/courses managers;

(c) managers, "developers" and "public custodians" of public assets of significance; and

(d) “public authorities” “statutory bodies” or “referral authorities”.

52.1.3 In the planning context, it is appropriate to identify responsibilities in the context of land “use” and “development”, as the two terms are quite distinct. The term “use” connotes what land will be or is being used for. The term “development” essentially means construction and building, however, it is also defined to include subdivision. A further term “works” is often used which includes any change in the natural topography of the land or removal of vegetation.

52.1.4 Subject to the exemptions which are referred to later in this Part, Water Corporations are bound by the P&E Act and subordinate legislation, including planning schemes pursuant to section 16 of the P&E Act.

52.2 Controls

52.2.1 With a few exceptions, the P&E Act regulates, rather than creates, rights. An exception is the entitlement to compensation under section 98 of the P&E Act, where development or use is refused because of a public purpose proposal.

52.2.2 These controls are generally to be found not only in the P&E Act, but in the subordinate legislation under the P&E Act, ie, in planning schemes.

52.2.3 Except for Commonwealth land, which is not controlled by Victorian planning law, all land in Victoria is essentially covered by a “planning scheme”. For example, Greater Shepparton is covered by the Greater Shepparton Planning Scheme. Planning Schemes can be found, on the internet at: http://www.dse.vic.gov.au/planningschemes/.

52.2.4 The use and development of land has to comply with the P&E Act and the planning schemes in the municipality of where the land is located. The planning schemes set out the zoning of the land and how the land

http://www.dse.vic.gov.au/planningschemes/



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can be used and developed. Often planning permits will be required to use and develop land.

52.2.5 Generally, when land is reserved or zoned for a public purpose, it can be used for that purpose without the need for a planning permit, ie, as of right for any purpose properly falling within or incidental to the exercise of the Water Corporation’s powers, functions or duties.

52.2.6 One needs to be wary as the zone requirements may be too specific. For example, the public purpose zone may be limited to water supply purposes, effectively making plans for sewerage or drainage works subject to the normal planning process.

52.2.7 If specific land uses or developments are not permitted by the zone, it may be necessary to:

(a) amend the planning scheme; or

(b) enact specific exempting legislation.

52.2.8 An amendment to a planning scheme is not as of right, and the Minister for Planning and/or the planning authority itself, will need to be lobbied and persuaded to make the amendment. In some cases, the Minister can superimpose the amendment regardless of opposition or delay by the planning authority.

52.3 Structure of planning schemes in Victoria

52.3.1 Prior to 1999, planning schemes were divided into metropolitan, local and regional sections. All sections applied with equal force unless there was a direct inconsistency, in which case special rules applied.

52.3.2 New planning schemes, which apply a single State section to all of Victoria (with common zones) were brought in between 1998-2000. All planning schemes have been redrafted to conform to a model scheme format which has been adopted by the government and which is referred to as the Victorian Planning Provisions ("VPPs").

52.3.3 Local overlay controls, such as height controls and conservation controls, may also apply. Importantly, where land is to be acquired at some stage in the future by a Water Corporation, a planning scheme amendment will be required to apply a Public Acquisition Overlay to the land. The type of zoning adopted may affect the price to be paid by the Water Corporation when the land is eventually acquired.

52.4 Metropolitan Green Wedge Protection and Urban Growth Boundary - Part 3AA of P&E Act

52.4.1 This Part of the P&E Act requires Ministerial authorisation and ratification by parliament for certain amendments to planning schemes applying in Green Wedge Land (“GWL”) (as defined in the P&E Act). GWL is land is within a metropolitan fringe area but outside the Urban Growth Boundary (“UGB”).



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52.4.2 Ministerial authorisation is required to amend the UGB or to amend or insert a provision in a planning scheme that will affect the GWL.

52.4.3 Authorised amendments that amend the UGB or alter subdivision controls over GWL require ratification by parliament.

52.5 Development contributions - Part 3B of P&E Act

This Part of the P&E Act was designed to limit the vagaries of demands by planning authorities (generally municipal councils) for infrastructure contributions in respect of new broad acre or residential developments. In general, it prevents councils requiring infrastructure contributions unless the relevant planning scheme has been amended to incorporate an infrastructure policy which will impose some responsibility and accountability on the planning/responsible authority to apply the funds in accordance with the planning scheme requirements. Voluntary contributions can still be agreed.

52.6 How to gain planning permission

52.6.1 The elements and purposes of any use or development of land will need to be analysed to determine whether it is exempt from permit requirements or planning scheme controls, or requires a permit and is subject to conditions.

52.6.2 If a permit is required, an application to the relevant responsible authority for the administration and enforcement of the planning scheme will be necessary and should be supported with sufficient material to enable the responsible authority to understand what is proposed. Material accompanying the application can be incorporated as part of the application and will be regarded in the event of subsequent interpretation of the use or development authorised.

52.6.3 If the use/development is prohibited, consideration should be given to amending the planning scheme.

52.7 Exemptions

52.7.1 Clause 62 of all planning schemes provides for certain exemptions for works and subdivisions required for public purposes by a public authority. These exemptions would apply to many Water Corporation works on land involving minor utility installations.

52.7.2 Clause 63 of the VPPs regulates existing use rights. Any pre-existing lawful use of land which preceded the planning controls now affecting it can continue. An historical analysis is necessary to determine whether the specific use is lawful. It is desirable that records of the uses and the relevant planning controls at the time be kept as part of the on-going land management process. While in some cases there are registers of non-conforming uses of land kept by responsible authorities, this is the exception rather than the rule. Accordingly, it is desirable that the land owner/manager keep those records in respect of its own land.

52.7.3 Exemptions may also be created where specific legislation authorises the use or development of land. For example, the Commonwealth



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Games Arrangements Act 2001 (now repealed), which provided that the provisions of the P&E Act and planning schemes do not apply to the development or use of the Commonwealth Games venue or designated access area for the purpose of a Commonwealth Games project.

52.8 Breach of the planning scheme or permit

52.8.1 If the planning scheme or permit requirements are breached, enforcement action can be taken under the P&E Act. This includes obtaining orders from VCAT or prosecuting offenders in the Magistrates Court.

52.8.2 Members and officers of a Water Corporation can be made liable for offences or breaches of the P&E Act (section 128 P&E Act). The maximum penalty under the P&E Act for a breach is 1200 penalty units. Penalties can be used against both corporations and individual members of the corporation, such as directors or managers if it can be shown that the offence took place with that person’s knowledge or consent.

52.8.3 The VCAT has powers to make declarations in respect of the use and development of land (sections 149A and 149B P&E Act).

52.9 Other miscellaneous matters

52.9.1 Land owned, occupied or managed by Water Corporations should be continually monitored with specific regard to:

(a) existing uses or development;

(b) compliance with existing planning controls;

(c) compliance with applicable planning permit conditions;

(d) statutory time limits for expiry of permits in section 68 of the P&E Act;

52.9.2 Water Corporations will, in appropriate circumstances, have the right to make submissions on amendments to planning schemes, particularly when those amendments directly impact on its land. Such submissions can be made to the planning authority and the Minister for Planning.

52.9.3 Water Corporations may enter into agreements with a responsible authority (including the Minister) under section 173 of the P&E Act. These agreements can impose both positive and negative obligations on the Water Corporations and will be registered on the title to the land and will bind successors in title.

52.10 Acting as a referral authority/objector

52.10.1 Formal referral authority

(a) In addition to the obligation to comply with the P&E Act, Water Corporations will have a role in relation to other development on land not owned or controlled by the Water Corporation.



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(b) Where land is within the relevant area of a Water Corporation, a planning permit application is often required to be referred to it. This is particularly so for subdivisions (other than two lot subdivisions).

(c) The Water Corporation must respond to the referral to the responsible authority (usually municipal councils, occasionally the Minister for Planning) within the specified time period.

(d) The Water Corporation can advise the responsible authority that it does not agree with the application (for reasons stated) and that the responsible authority should refuse to grant the permit. A responsible authority must refuse to grant a permit if a formal referral authority has requested it. Where a Water Corporation refusal is based on the Water Corporations’ need for the land for its own purposes, it may raise an obligation to compensate the owner/developer under Part 5 of the P&E Act and the Land Acquisition and Compensation Act 1986.

(e) The Water Corporation may require that certain conditions be imposed on the development or use. These conditions must be included on any permit granted by the responsible authority.

(f) Formal referral may also trigger certain rights in favour of the Water Corporation under the Water Act (see sections 136 and 268(2)).

(g) The permit applicant may apply to VCAT for review of a decision to refuse a permit or to impose conditions on a permit by a Water Corporation.

(h) Certain applications may be specifically designed to attract refusal in order to trigger compensation. Care should therefore be taken over such refusals.

52.10.2 Informal referral

Often municipal councils will refer planning applications to Water Corporations because its land may be nearby, or its infrastructure may otherwise be affected, or input from the Water Corporation may be sought. As the referral in this instance is informal, the Water Corporation can only make suggestions or lodge a written objection. Water Corporations should note that:

(a) a formal written objection is vital, to ensure a right of appeal at some time in the future;

(b) time limits can be applied to obligations to respond, generally 14 days from the date notice is given; and

(c) time limits apply to appeals (usually 21 days) from the date of service of notification of the responsible authority's decision.



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52.10.3 Objections

At times, the Water Corporation may be aware of a particular proposal that will affect it. In that case, it should object by way of written submission to the responsible authority in order to preserve a right of appeal.

52.11 Proposed amendments to P&E Act

52.11.1 The Victorian Government has introduced the Planning and Environment Amendment (General) Bill 2012. The purpose of this Bill is to:

(a) abolish Development Assessment Committees;

(b) provide for a Planning Application Committee to work with Councils;

(c) streamline processes under the P&E Act such as:

(1) providing two types of referral authorities that will be set out in planning schemes;

(2) making changes to the making and management of section 173 agreements.

52.11.2 The proposed changes to the referral system will see the introduction of two types of referral authorities:

(a) a determining referral authority;

(b) a recommending referral authority.

52.11.3 A determining referral authority has the power to require a permit application to be refused or for certain conditions to be included in a permit.

52.11.4 A recommending referral authority may comment on an application but the responsible authority is not obliged to refuse the permit or include conditions. Rights of review are also sought to be limited for these types of referral authorities.

52.11.5 Other proposed changes include that referral authorities will be required to keep a register in respect of all permit applications referred to them.

52.11.6 What implications this will have for water corporations remains to be seen. Certainly if water corporations are no longer formal or “determining” referral authorities, they may not to be able to continue to seek land or easements using sections 136 or 268 of the Water Act.



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53 ENVIRONMENT PROTECTION ACT 1970

53.1 General

53.1.1 The Environment Protection Act 1970 (“EP Act”) is the most significant Act relating to pollution control and environmental management in Victoria.

53.1.2 The Environment Protection Authority ("EPA") is responsible for the regulation and enforcement of the provisions of the EP Act.

53.1.3 The purpose of the EP Act is to create a legislative framework for the protection of the environment in Victoria, having regard to the following principles:

(a) the principle of integration of economic, social and environment considerations;

(b) the precautionary principle;

(c) the principle of intergenerational equity;

(d) the principle of conservation of biological diversity and ecological integrity;

(e) the principle of improved valuation, pricing and incentive mechanisms;

(f) the principle of shared responsibility;

(g) the principle of product stewardship;

(h) the principle of wastes hierarchy;

(i) the principle of integrated environmental management;

(j) the principle of enforcement; and

(k) the principle of accountability.

53.1.4 Water Corporations are constantly subject to the EP Act through:

(a) works approvals and licences;

(b) control of discharges to watercourses; and

(c) potential prosecution for breach of licences, the EP Act, State Environment Protection Policies ("SEPPs") and Waste Management Policies (“WMPs”).

53.1.5 The principal objective of the EP Act is to ensure a satisfactory level of environmental quality in Victoria. To achieve this objective the EP Act adopts a variety of approaches, including:



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(a) the establishment of standards for environmental quality and waste discharges under SEPPs;

(b) a works approval system;

(c) a licensing system;

(d) pollution abatement and control notices;

(e) statutory environmental audits;

(f) environmental improvement plans;

(g) recommendations on waste management policies, efficiency of resource use, and reduction of ecological impacts of industrial enterprises;

(h) encouragement for recycling of waste;

(i) penalties for breaking the law;

(j) neighbourhood environment improvement plans; and

(k) voluntary sustainability covenants.

53.1.6 The EP Act regulates the quality and quantity of discharges to air, land and water, discharges of solid wastes, emission of noise, littering, and handling and transport of wastes.

53.1.7 The EP Act applies to individuals and corporate entities as well as binding the Crown and all bodies constituted by statute.

53.1.8 Water Corporations are bound by the EP Act.

53.2 Relationship to other Acts

53.2.1 The provisions of the EP Act relating to ozone depleting substances should be read in conjunction with the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth).

53.2.2 To the extent that any requirements are inconsistent with the Dangerous Goods Act 1985 or its various regulations, the Dangerous Goods Act 1985 and its regulations prevail.

53.3 State Environment Protection Policies

53.3.1 Sections 16 to 19 of the EP Act enable the Governor in Council to declare policies for the protection of beneficial uses in any segment or segments of the environment.

53.3.2 SEPPs specify standards for protection of beneficial uses and the maintenance of the quality of the environment. In setting standards, the EPA must consider the ability of the environment to absorb waste without detriment to its quality and other characteristics, including the socioeconomic environment in the State.



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53.3.3 A SEPP may set standards for various areas and activities including:

(a) a particular element in the environment state-wide (eg, SEPP (Waters of Victoria), SEPP (Air Quality Management));

(b) a geographical area (eg, SEPP (Waters of Yarra River and Tributaries), SEPP (Waters of Port Phillip Bay) now included in the SEPP (Waters of Victoria));

(c) eg, emission types (eg, SEPP (Control of Noise from Commerce, Industry and Trade)).

53.3.4 Beneficial uses are specified for each segment and environmental quality indicators and objectives are set to protect those beneficial uses and to measure environmental performance. In addition, SEPPs set standards and requirements for point source discharges and emissions (eg, treated waste water, air emissions), catchment management and waste treatment technology.

53.3.5 The failure to comply with SEPPs in respect of water, air or land is an offence by virtue of Parts 5, 6 and 7 of the EP Act. Any person who causes the breach, whether or not an occupier of land, is potentially liable for an offence under these Parts of the EP Act. As these Parts create a strict or absolute liability (depending on the extent to which the Victorian Supreme Court decision in Allen v United Carpet Mills Pty Ltd [1989] VR 323 is interpreted and applied) a Water Corporation is charged with an enormous responsibility, whether or not it is aware of the particular act of pollution or breach.

53.3.6 It follows that the SEPPs are effectively legislative documents to be complied with. Despite this, as they sometimes create aspirational, unrealistic objections, they are sometimes applied in a discretionary manner.

53.3.7 Land managers need to assess whether an activity is likely to cause a breach of a SEPP and, if possible, redesign the activity so that a breach does not occur.

53.3.8 The following SEPPs may be relevant to Water Corporations:

(a) The Waters of Victoria (including schedules dealing with individual waterways such as the waters of Port Phillip Bay);

(b) Groundwaters of Victoria;

(c) Control of Noise from Commerce, Industry and Trade;

(d) Prevention and Management of Contamination of Land;

(e) Ambient Air Quality; and

(f) Air Quality Management.



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53.3.9 SEPPs are regularly reviewed and it is necessary to monitor this process and contribute when appropriate.

53.3.10 The EP Act was amended to enable account to be taken of National Environment Protection Measures.

53.4 Waters of Victoria

53.4.1 The Waters of Victoria SEPP was gazetted on 26 February 1988 and has been amended on a number of occasions. It designates areas that are affected by the SEPP as all surface waters in Victoria subject to certain areas that can be excluded and dealt with by schedules. It is notable that the schedules can also vary the actual requirements of the SEPP and when making investigations into a particular area one should take care to check the applicable requirements.

53.4.2 The SEPP is divided into a number of Parts and also Schedules.

53.4.3 The Parts in summary are as follows:

(a) Preliminary - context and definitions - Part 1;

(b) Purpose, principles and intent - Part 2;

(c) Policy Area - Part 3;

(d) Beneficial uses - Part 4;

(e) Environmental quality objectives and indicators - Part 5;

(f) Key responsibility for implementing the policy; guidance; waste and water management; water management; catchment management; and attainment programs - Part 6. These are particularly relevant to those acting within the water industry and familiarity is required.

53.4.4 The SEPP then sets out a series of Schedules as follows:

(a) Environmental Quality Objectives and Indicators - Schedule A;

(b) Areas of High Conservation Value - Schedule B; and

(c) Policy Variations - Schedule F (which includes the SEPPs on the individual waters of Victoria eg,: Schedule F6 Waters of Port Phillip Bay).

53.5 Neighbourhood Environment Improvement Plans (“NEIPs”)

53.5.1 Division IB, Part 3 of the EP Act provides for both directed and voluntary NEIPs to be undertaken. The purpose of the NEIPs is to address environmental issues that local communities identify as important to health, safety and enjoyment of the local environment. They are intended to address cumulative pollution from many small sources. They are not intended to address environmental problems associated with one industry or source.



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53.5.2 The EP Act specifies that a ‘protection agency’ must submit a NEIP proposal and plan to the EPA in accordance with the guidelines. The protection agency acts on behalf of the neighbourhood community to obtain approval for the NEIP. Protection agencies are defined in section 4 of the EP Act as:

“any person or body, whether corporate or unincorporate, having powers or duties under any other Act with respect to the environment or any segment of the environment in any part or parts of Victoria”.

53.5.3 The definition would include CMAs, Water Corporations, municipal councils and government departments.

53.6 Waste management policies

53.6.1 The EPA has the scope to develop WMPs and to allocate responsibility for industrial waste management operation and disposal.

53.6.2 WMPs can be declared under section 16 of the EP Act. WMPs cover a variety of industries and regulate a variety of activities - some of which are relevant to the operations of Water Corporations:

(a) Movement of Controlled Wastes between States and Territories;

(b) National Pollutant Inventory;

(c) Siting, Design and Management of Landfills;

(d) Protection of the Ozone Layer;

(e) Used Packaging Materials and

(f) Waste Acid Sulphate Soils.

53.6.3 WMPs have the force of law and a breach constitutes an offence under the EP Act.

53.7 Protection of the ozone layer

53.7.1 The WMP (Protection of the Ozone Layer) sets out the objectives, principles and intent of the WMP with respect to the use of ozone depleting substances (“ODS”). It imposes obligations on suppliers and purchasers to develop environmental improvement plans; realise attainment measures; adopt alternatives; minimize emissions; comply with registration and accreditation procedures; and comply with labelling and handling requirements.

53.7.2 If ODS are present at any site, advice should be sought with respect to obligations and duties under the ozone protection legislation as there are various notification and phasing out requirements which must be complied with.



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53.8 Licences and works approvals

53.8.1 The EPA’s licences are a powerful tool for controlling the volume and composition of discharges, emissions and deposits of waste to the environment. The provisions relating to licences and works approvals depend on the type of premises from which waste is to be discharged and are dependent on the nature of discharges from these premises.

53.8.2 Licences may also include monitoring requirements of the receiving environment to measure the extent of environmental impact of the discharge/emission and to determine whether environmental objectives as set down in relevant SEPPs are being achieved.

53.8.3 A works approval will often need to be obtained before works are undertaken at scheduled premises. The various scheduled premises are detailed in the Environment Protection (Scheduled Premises and Exemptions) Regulations 2007.

53.8.4 Licences will often follow from the works approval for the ongoing operation of the particular use at a “scheduled premises” (as defined in the EP Act).

53.8.5 EP Act licences are personal to the operation (not necessarily to the land or the owner of the land) and in that regard are different from planning permits.

53.8.6 Works approvals and licences are required in addition to planning permission. Notably there are methods (such as joint advertisement of a works approval and planning permit application) which can dramatically shorten the total approval process.

53.8.7 Applicants and any objectors can lodge appeals to VCAT for both works approvals and licences in certain circumstances. Certain appeals can also be excluded. However, the facts of the particular case need to be considered in relation to the EP Act (section 32 and following EP Act).

53.8.8 Section 20C(3)(b)(ii) of the EP Act provides for a ‘fit and proper’ person test for licence or works approval applicants. The EP Act can, in considering potential licence or works approval applications, look at the past environmental record of applicants. A history of breaching any requirement of the EP Act can be used by the EPA as the basis for denying a licence or works approval application or for placing more onerous conditions on an applicant if the relevant licence or works approval is granted.

53.9 Environmental audits

53.9.1 The purpose of environmental audits is to assess the condition of a segment of the environment and the risk of any possible harm or detriment to a segment of the environment, caused by any industrial process or activity, waste, substance or noise for use in the planning, approving, regulating, managing or conducting of activities and in the protection of the environment.



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53.9.2 The EPA can appoint an environment auditor to conduct environmental audits, prepare environmental audit reports and, if requested, to issue certificates of environmental audit or statements of environmental audits.

53.9.3 The term “environmental audit” is a term used to describe a number of environmentally related activities. The term is defined in section 4(1) of the EP Act to mean:

“…a total assessment of the nature and extent of any harm or detriment caused to, or the risk of any possible harm or detriment which may be caused to, any beneficial use made of any segment of the environment by any industrial process or activity, waste, substance (including any chemical substance) or noise.”

53.9.4 Environmental audits prescribed under the EP Act include:

(a) environmental audit on risk caused by industrial process or activity, waste, substance or noise; and

(b) environmental audit of condition of segment of environment.

53.9.5 Common usage of the term “environmental audit” has developed three basic types of audits, namely:

(a) site audits, which assess the contamination on an existing property;

(b) environmental compliance audits, which assess the regulatory compliance of existing activities on a site with a wide range of environmental legislation; and

(c) management audits, which take an all encompassing approach to company organisation and management and its reporting and monitoring activities with respect to environmental issues and training programs.

53.9.6 In practice, an environmental audit can involve aspects of more than one of these types.

53.9.7 The most likely circumstances whereby the EPA would require an environmental audit of land or operations would be with respect to a site that is known or suspected to be contaminated or when it is desired to rezone land to a sensitive use. Any potentially contaminated land which is, for example, intended to be rezoned for a residential use, child care centre, preschool centre or primary school has to meet the requirements of planning schemes in this regard. These requirements include a Certificate of Environmental Audit or appropriate statement in effect clearing the land for such a sensitive use. The auditor is required to have regard to the beneficial use that may be made of the relevant segment of the environment and of any relevant SEPP or WMP. It is an offence for an environmental auditor to give false or misleading information to the EPA.



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53.9.8 Compliance with the Ministerial Direction No. 1 “Potentially Contaminated Land” is required if rezoning land to a more sensitive use.

53.10 Powers of the EPA

The EP Act contains numerous sections relating to the furnishing of information, powers of authorised officers, use of monitoring equipment and offences relating to the provision of incorrect or misleading information. The most relevant power of the EPA relates to prosecutions, the abatement of pollution and clean up requirements.

53.11 Clean up powers

53.11.1 Section 62(1) of the EP Act allows the EPA to conduct a clean up on premises where:

(a) pollutants have been or are being discharged;

(b) a condition of pollution is likely to arise;

(c) any substantial noise is being emitted;

(d) any industrial waste or potentially hazardous substance appears to have been abandoned or dumped; or

(e) any industrial waste or potentially hazardous substance is being handled in a manner which is likely to cause an environmental hazard.

53.11.2 The EPA can recover the reasonable costs of the clean up from the occupiers of the premises in question or from the person or company whose acts or omissions caused the contamination.

53.11.3 If the EPA cannot recover costs from the occupier, the costs can become a charge on the land and the EPA has the power to sell the land should the costs remain outstanding after a period of 12 months.

53.11.4 Alternatively, pursuant to section 62A(1) the EPA may direct that pollution or waste on premises be cleaned up by:

(a) the occupier of any premises upon or from where pollution has occurred or been permitted to occur;

(b) the person who has caused or permitted the pollution to occur;

(c) any person who appears to have abandoned or dumped any industrial waste or potentially hazardous substance; or

(d) any person who is handling industrial waste or a potentially hazardous substance in a manner which is likely to cause an environmental hazard.

53.11.5 In some circumstances, an occupier who is directed by the EPA to clean up premises may bring an action against the person or company who caused the contamination for all reasonable costs incurred in complying with the clean up notice.



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53.11.6 Section 62A(1AA) of the EP Act provides that the EPA may, in certain circumstances, direct a corporation to take clean up and other ongoing measures if its subsidiary, related entity or associated entity, caused the pollution or abandoned the waste where the corporation or one or more of its directors, were aware, or should have been aware, of the conduct of its related subsidiary, related or associated entity and that corporation did not take all reasonable steps to prevent the conduct of that related company.

53.11.7 Because of the broad definitions of a number of words including "pollute", "premises", "occupier", "waters" and "beneficial use" in the EP Act, and the definition of "land' in the Interpretation of Legislation Act 1984 as including "land covered by water" and the potential responsibilities of Water Corporations in respect of water treatment, wastewater treatment, channels and water discharge, the EP Act is likely to have a significant effect on activities and responsibilities of Water Corporations.

53.12 Resource efficiency

53.12.1 Division 4A of Part 3 of the EP Act was introduced into the EP Act by the Environment Protection (Amendment) Act 2006. It requires occupiers of premises from which scheduled activities are being undertaken to register with the EPA and to prepare Environment and Resource Efficiency Plans for approval by the EPA, before undertaking that scheduled activity.

53.12.2 A “scheduled activity” is defined in section 4(1) of the EP Act to mean:

“(a) the use at a premises of environmental resources in excess of the threshold prescribed for resources of a kind prescribed for the purposes of this definition; or

(b) the disposal of waste off-site from a premises in excess of the threshold prescribed for wastes of a kind prescribed for the purposes of this definition.”

53.12.3 According to the parliamentary debates on the Environment Protection (Amendment) Act 2006, the government sought to build on the success of the EPA’s industry greenhouse program by introducing Environment and Resource Efficiency Plans for the State's 250 biggest energy and water users.

53.12.4 In quoting from the Second Reading Speech on 20 July 2006, Minister Thwaites said:

“These companies will be required to explore energy, water and waste reduction opportunities. Only those resource efficiency actions which have a 3 year or better payback period must be implemented as part of an environment and resource efficiency plan.

The scheme will not apply to broad acre agricultural primary production, including irrigated primary production, as a significant



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amount of work is already being undertaken to encourage resource efficiency in this area.

Organisations which are already taking the initiative to reduce their environmental resource consumption will have these actions recognised.

This scheme will facilitate voluntary action, and recognise and support businesses taking action through existing programs, such as the water efficiency programs delivered by water retailers. However, all large environmental resource consumers will be required to register with Environment Protection Authority and to report on their achievements.

To ensure a fair and equitable system, the scheme provides for offences for those firms that are major environmental resource consumers who do not participate through the development and implementation of a plan for environmental resource efficiency. This is an important safeguard that underpins the efforts of those pursuing resource efficiency.”

53.12.5 The Environment Protection (Environment and Resource Efficiency Plans) Regulations 2007 commenced on 1 January 2008. These Regulations prescribe:

(a) requirements for the definition of a scheduled activity for the purpose of the EP Act;

(b) criteria for the preparation of Environment and Resource Efficiency Plans; and

(c) when persons are required to register with the EPA.

53.12.6 The kind of “environmental resource” prescribed for the purposes of the definition of “scheduled activity” includes energy and water. However, the term “water” is qualified in regulation 5 to mean:

“water includes only water used at a premises that is:

(a) supplied by an authority under the Water Act;

(b) supplied by a licensee under the Water Industry Act;

(c) obtained under a licence granted under section 51 of the Water Act;

(d) obtained under a bulk entitlement granted under Division 1 of Part 4 of the Water Act;

(e) used by a Water Corporation under the Water Act for the purpose of operating or maintaining plant or infrastructure.



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Water does not include water used at a premises that is:

(a) part of an environmental allocation under Division 1A of Part 4 of the Water Act; or

(b) recycled water within the meaning of section 3(1) of the Water Act.”

53.12.7 The term “energy and energy sources” is determined by reviewing schedule 1 of the Regulations and includes electricity and sewage gas.

53.12.8 The threshold prescribed in respect of the use of water is 120 megalitres of water in any trigger year. The threshold for electricity is 100 terajoules in any trigger year. The term “trigger year” is defined in regulation 4 to mean a financial year commencing 1 July 2006 or any subsequent year for which the use at the premises of the environmental resources (ie, water or energy) exceeds the threshold (ie, 120 megalitres or 100 terajoules).

53.12.9 A person who, from 1 January 2008, is using more than 120 megalitres of water at their premises (as defined above) in any one financial year, is therefore required to register with the EPA and prepare an Environment and Resource Efficiency Plan within 3 months from 1 January 2008. A person who undertakes a scheduled activity after 1 January 2008 must still register with the EPA, but within 3 months after the end of the trigger year.

53.12.10 Generally, subject to some exceptions, a person must submit an Environment and Resource Efficiency Plan to the EPA within 12 months from 1 January 2008.

53.12.11 The whole purpose of these new provisions in the EP Act is to reduce energy and water waste used at premises. If any Water Corporation is using such water/energy at any of its facilities above the threshold amounts, then it may have to register and prepare an Environment and Resource Efficiency Plan for the EPA.

53.12.12 Part 9 of the EP Act deals with resource efficiency through environmentally sustainable use of resources and best practice waste management.

53.12.13 This Part contains a suite of measures including voluntary sustainability covenants designed to enable industries and companies to identify resource efficiency gains and reduce ecological impact.

53.12.14 Further, recent changes have been made to waste management in Victoria, through clarifying the roles of key statutory bodies involved in waste management (regional and metropolitan waste management groups and Sustainability Victoria); and further, through additional funding and increased incentives for environmental priorities (such as waste reduction programs and changes to landfill levies).

53.12.15 Sustainability covenants are agreements under which a person or body undertakes to increase the efficiency with which they use resources,



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products or services, and to reduce the ecological impact by which those resources, services or products are produced. The mechanism has been designed to recognise work being done by industry with respect to waste management, and to enable business to work in partnership with government to address major environmental issues associated with the production, use and disposal of goods and services.

53.12.16 The Governor in Council has the power to declare that an industry has the potential to have a significant impact on the environment. If a member of that industry is not party to a relevant sustainability covenant, or fails to adhere to a sustainability covenant, the EPA may require that person to produce a statement of ecological impact. Statements may also be required where a declared industry does not produce a covenant. Following a statement, the person or industry may be required to take action to address major inefficiencies or impacts. It is an offence to fail to comply with such a requirement from the EPA. In order to assess compliance, the EPA is empowered to produce guidelines and conduct audits.

53.12.17 In relation to waste management, the Environment Protection (Amendment) Act 2006 introduced the Metropolitan Waste Management Group which is responsible for preparing the Metropolitan Waste and Resource Recovery Strategic Plan. This Plan is to provide for the longer form management and reduction of waste in metropolitan Melbourne, and to identify the waste needs and schedule the development of landfill sites. This Plan is to deal with the management of all solid waste in metropolitan Melbourne. Regional Waste Management Groups consisting of municipal councils, will continue to deal with waste issues in regional Victoria.

53.12.18 The Environment Protection (Amendment) Act 2006 increased in the landfill levy payable for the disposal of prescribed industrial waste to landfill in Victoria. The staggered levy increases commenced on 1 July 2007, with a further increase to be effective from 1 July 2008.

53.12.19 As of 1 July 2007, the levy charged varied according to the hazard classification of the prescribed industrial waste.

53.12.20 On 1 July 2011, the Environment Protection Amendment (Landfill Levies) Act 2011, substituted Schedule D in the EP Act increasing the amounts payable as Landfill Levy between 1 July 2011 and 1 July 2014.

53.12.21 The increased cost of disposal will have a direct impact on Water Corporations who produce prescribed industrial waste (ie, sludges, filter cake, contaminated soils).

53.12.22 As of 1 July 2009, all prescribed industrial waste must now be classified in accordance with the Industrial Waste Resource Guidelines – Soil Hazard Categorisation and Management and Solid Industrial Waste – Hazard Categorisation and Management Guidelines, prior to disposal to landfill. The classification guidelines essentially distinguish between wastes on the basis of toxicants and their leachability from the solid waste matrix.



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53.12.23 What constitutes prescribed industrial waste is determined by the Environment Protection (Industrial Waste Resource) Regulations 2009, which commenced on 1 July 2009.

53.13 Offences and penalties

53.13.1 There are many offences under the EP Act relating to breaches of the EP Act, its associated regulations, SEPPs, WMPs, works approvals and licence requirements. The EP Act also provides the EPA with very wide ranging powers to issue clean up notices, infringement notices and to take a range of other enforcement actions.

53.13.2 The potential maximum penalties for some of the more common and relevant provisions of the EP Act include:

(a) 2400 penalty units for breach of a pollution abatement notice;

(b) 2400 penalty units for contravention of conditions in a works approval; and

(c) 2400 penalty units for polluting waters.

53.13.3 Section 59E of the EP Act provides for an offence of aggravated pollution. Amongst other things, where a person who intentionally, recklessly or negligently pollutes the environment which causes serious damage to the environment or serious threat to public health, that person will be guilty of an indictable offence and liable for a fine up to 2500 penalty units or 7 years imprisonment or both for an individual and in the case of a body corporate 10,000 penalty units.

53.13.4 Section 67 of the EP Act provides that where no penalty is expressly provided for in the EP Act, a person who is guilty of an offence against the EP Act will be liable to a penalty of not more than 120 penalty units.

53.13.5 Section 67AC of the EP Act allows for a court to order a person who has breached the EP Act to publicise his or her breach and to carry out specified works for the restoration and enhancement of the environment in a public place or for the public benefit.

53.13.6 The Environment Protection (Amendment) Act 2006, amended the EP Act so that now the EPA may, instead of taking criminal proceedings against a party, enter into an enforceable undertaking with that party. The EPA has developed draft guidelines for the use of such undertakings, that indicates that an undertaking, instead of legal proceedings, can only be used where the EPA is of the view that it is an appropriate enforcement mechanism for an offence against the EP Act. Any breach of the undertaking will result in the EPA taking the action against the party.

53.14 Directors' liabilities and defences

53.14.1 The liability of members, directors and officers of a corporation under the EP Act may arise directly or indirectly.



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53.14.2 The term "corporation" includes statutory authorities and statutory corporations (this would include a Water Corporation).

53.14.3 Direct liability may arise where the relevant person is actually directly involved in the cause of pollution or the offence. Indirect liability may arise under section 66B(1) of the EP Act which states that:

“If a corporation contravenes, whether by act or omission, any provision of this Act or a notice or a licence or permit under this Act, each person who is a director or is concerned in the management of the corporation is also guilty of the offence which relates to the contravention and liable to the penalty for that offence.”

53.14.4 The result of this provision is that if a corporation is guilty of an offence, a director, member, officer and any person concerned in the management of the corporation, may find themselves automatically liable to penalties and even imprisonment, unless they prove one of the defences open to them under section 66B(1A) or elsewhere.

53.14.5 One defence is that a person, by virtue of his/her position, used all due diligence to prevent a contravention (section 6B(1A)(c)). It has become evident from similar legislation in Canada and New South Wales that a director cannot escape liability for environmental crimes of his/her corporation by simply denying knowledge of the circumstances giving rise to liability. And in fact, such a defence has been repealed from the EP Act by the Environment Protection (Amendment) Act 2006. Therefore, an effective environmental management plan and reporting procedure to inform the Board should be in place and all Board members informed regularly.

53.14.6 The EP Act has in recent years made a deliberate effort to prosecute both the corporation and the relevant management involved in breaches of the EP Act. In most instances where a prosecution has been successful, management personal have been fined the same penalty as the corporation.

53.15 Regulations

53.15.1 There are a number of regulations made under the EP Act which relate to potentially polluting situations. These regulations are:

(a) Environment Protection (Scheduled Premises & Exemptions) Regulations 2007;

(b) Environment Protection (Fees) Regulations 2012;

(c) Environment Protection (Distribution of Landfill Levy) Regulations 2010;

(d) Environment Protection (Environment and Resource Efficiency Plans) Regulations 2007;



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(e) Environment Protection (Industrial Waste Resource) Regulations 2009;

(f) Environment Protection (Residential Noise) Regulations 2008;

(g) Environment Protection (Ships’ Ballast Water) Regulations 2006; and

(h) Environment Protection (Vehicle Emissions) Regulations 2003.

54 ENVIRONMENT EFFECTS ACT 1978

54.1 The Environment Effects Act 1978 (“EE Act”) applies to works that are declared to be public works for the purposes of the EE Act by order of the Minister for Planning and that could reasonably be considered to have, or to be capable of having, a significant effect on the environment (section 3). Such "public works" cannot commence without an Environment Effects Statement (“EES”) if required under the EE Act.

54.2 The EE Act also applies in the situation where a decision maker (municipal council or EPA or, potentially a Water Corporation, is required by an Act or law to make a decision in relation to works that could have a significant effect on the environment and that decision maker seeks the advice of the Minister as to whether an EES should be prepared for those works (section 8(1)).

54.3 Further, in certain circumstances, the Minister may require an EES whether or not such person or body requests it (section 8(2)).

54.4 A proponent of works may also seek the advice of the Minister of Planning as to whether an EES should be prepared if he or she thinks that the works could have a significant effect on the environment. For example: a Water Corporation itself may request an EES where a particular proposal warrants it. Major proposals adjoining a waterway, treatment plant etc, are examples of where such action may be advisable.

54.5 It is up to the proponent to engage its own consultants to prepare the EES subject to following the framework set out in the ‘Ministerial Guidelines for Assessment of Environmental Effects under the Environment Effects Act 1978’ (seventh edition, 2006) as to how the EES is to be prepared.

54.6 In some cases, where a Commonwealth agency or Commonwealth property is involved, a joint assessment with the Commonwealth authority will be required, having regard to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (see also section 56 of this Manual for more information on joint assessments including the new Bilateral Agreement).

55 LITTER ACT 1987

This Act was repealed on 19 June 2002 by section 50 of the Environment Protection (Resource Efficiency) Act 2002 and the provisions were replaced by amendments to the EP Act.



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56 ENVIRONMENT PROTECTION & BIODIVERSITY CONSERVATION ACT 1999 (CTH)

56.1 The Environment Protection and Biodiversity Conservation Act 1999 (“EPBC Act”) came into operation on 16 July 2000. It replaced a number of Commonwealth statutes that previously regulated the Commonwealth’s role in environmental matters. Most importantly, it replaced the Environment Protection (Impact of Proposals) Act 1974 (Cth).

56.2 The EPBC Act regulates any activity that may have a “significant impact” on a matter of “national environmental significance”.

56.3 Matters of national environmental significance are:

56.3.1 the world heritage values of a declared World Heritage Property;

56.3.2 the ecological character of a declared Ramsar Wetland;

56.3.3 listed threatened species and ecological communities which are listed under the EPBC Act;

56.3.4 listed migratory species that are listed under the EPBC Act;

56.3.5 the environment if the action is a nuclear action;

56.3.6 the environment in a Commonwealth marine area; and

56.3.7 the national heritage values of a National Heritage place.

56.4 An “action” includes a project, development, undertaking or an activity or series of activities. An “action” does not include the granting of permission to undertake works (ie, granting of planning permits).

56.5 Any “action” which may have a significant impact on a matter of national environmental significance must be referred to the Federal Minister for Sustainability, Environment, Water, Population and Communities for consideration as to whether it is a “controlled action”. If the Minister provides that it is a “controlled action” further assessment will be required before the Minister is able to grant or refuse approval for the action.

56.6 If a person thinks the action is not a controlled action, he or she may refer the action to the Minister but is not obliged to do so. Many people choose to refer proposals for risk management purposes.

56.7 Even though the Minister may decide that the action is not a “controlled action” he or she may still impose conditions on the proponent of the action, and if those conditions are not complied with, that would make the action a “controlled action” for which further assessment would be required.

56.8 Referral forms and more detail about procedural rules are available from the Federal Department of Sustainability, Environment, Water, Population and Communities website: http://www.environment.gov.au/.

56.9 If an action is considered to be a “controlled action” the Federal Minister will require further assessment of the project before considering whether approval for it will be

http://www.environment.gov.au/



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granted or not. In such cases, Water corporations should be aware that there is now a Bilateral Agreement in force between the Federal and Victorian Governments that relates to such assessments and which provides that if more than one assessment is required, one assessment can ostensibly cover the field and a further environmental assessment will not be required under the EPBC Act. Legal advice should be obtained in relation to specific circumstances.

56.10 The EPBC Act also contains provisions requiring persons to obtain permits to take certain listed species and penalties can ensue if these permits are not obtained.



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PART 5 - LAND: CONTROL AND REGULATION

57 CONSERVATION, FORESTS & LANDS ACT 1987

57.1 General

57.1.1 The Conservation, Forests & Lands Act 1987 (“CFL Act”) provides a framework for a land management system in Victoria.

57.1.2 The term "public authority" is defined in the CFL Act to mean a body corporate created for a public purpose by or under an Act.

57.1.3 The term “Secretary” means the body corporate established pursuant to the CFL Act and essentially being the department head of the DSE.

57.1.4 Water Corporations can be declared as a public authorities for the control of certain land. This occurs via Governor in Council Gazettal.

57.2 Public authorities

57.2.1 Part 7 of the CFL Act relates specifically to public authorities.

57.2.2 A public authority must submit a plan of works prior to the commencement of any works specified in Schedule 3 of the CFL Act to the Secretary for comment on any necessary measures to be taken for the protection of land, waters and wildlife (section 66(1) CFL Act).

57.2.3 Schedule 3 of the CFL Act provides for the following works:

(a) soil and vegetation disturbance above 1220 metre elevation above sea level;

(b) the annual works programs of authorities under the Water Act that operate under Division 2 but not Division 3 of Part 10 of that Act;

(c) construction of dams, weirs or other structures in or across waterways which potentially interfere with the passage of fish or the quality of aquatic habitat; and

(d) the carrying out of developments within a habitat which has been determined to be a critical habitat under the Flora and Fauna Guarantee Act 1988.

57.2.4 A public authority must comply with any codes of practice made pursuant to the CFL Act unless there is no feasible or prudent alternative (section 67(1) CFL Act).

58 CROWN LAND (RESERVES) ACT 1978

58.1 General

58.1.1 The Crown Land (Reserves) Act 1978 (“CL(R) Act”) provides for the reservation of Crown land for certain public purposes as set out in section 4(1) and for the management of such reserved land by



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committees of management and/or trustees and for other purposes including special provisions relating to reserved land used for horseracing or greyhound racing, aerodromes, marinas, coastal protection and mineral springs.

58.1.2 Water Corporations can be declared committees of management.

58.1.3 Under the CL(R) Act, Crown land can be reserved either permanently or temporarily. Permanent reservation can be removed under section 11 by the Governor in Council publishing a notice in the Victoria Government Gazette.

58.1.4 Temporary or permanently reserved land cannot be sold, leased or licensed except under the CL(R) Act or other specific Act (section 8 CL(R) Act).

58.2 Control and management

58.2.1 Pursuant to the CL(R) Act, a trustee or committee of management, mostly with the approval in writing of the Minister, may grant licences to enter and use any portion of the Crown land or any building, enter into agreements to operate services and facilities on the land and lease land permanently or temporarily reserved.

58.2.2 There are specific conditions required in certain licences, agreements and leases and the area is legally complex. Consultation with a lawyer is recommended as application of these provisions can vary.

58.2.3 Section 18 provides that the Governor in Council on the recommendation of the Minister, may by Order published in the Government Gazette, place any reserved land under the control of the Water Corporation.

58.2.4 Pursuant to section 29E nothing in the CL(R) Act shall affect the operation of the Water Act and the Water Industry Act.

59 LAND ACT 1958

59.1 General

The Land Act 1958:

59.1.1 classifies unalienated Crown land based mainly on the quality and possible uses of the land;

59.1.2 governs the alienation, lease, licence and sale of Crown land; and

59.1.3 sets out the rights of the Crown in regard to resumption of land, either by way of purchase or exchange of land.

59.2 Sale of Crown land

59.2.1 Certain classes of Crown land cannot be alienated, but may only be leased or licensed.



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59.2.2 Crown land which is not prohibited from being sold may be sold either by way of public auction or tender.

59.2.3 The sale procedures are set out in the Land Act.

59.3 Alienation, lease or licence

59.3.1 All Crown land which is sold or in any manner leased, licensed, or alienated from the Crown is sold or otherwise alienated, leased or licensed as regards the surface and down to such depth below the surface as the Governor in Council may direct (section 339 Land Act).

59.3.2 Nothing in section 339 of the Land Act, or in any such order in Council, shall be deemed or taken to restrict the right of the owner, lessee or licensee of land to sink wells for water and to use and enjoy any wells and springs which may at any time be upon such land and which supply water for domestic, farming, agricultural, manufacturing or irrigation purposes, and every such owner, lessee and licensee shall, subject to the Water Act, have such rights with respect to such wells and springs as though he or she held or occupied such land without any limitation as to depth.

59.4 Watercourses

Notwithstanding land which is bounded by a watercourse having already been alienated, the bed and banks of these watercourse remain the property of the Crown.

59.5 Resumption of land by Crown

The Crown has the right to compulsorily acquire land for access to its land (section 209 Land Act). The Land Acquisition and Compensation Act 1986 applies to the resumption of such land by the Crown.

59.6 Trespass on Crown land

The Crown has powers to impose penalties on unauthorised occupiers of Crown land and may take steps to procure eviction of the unauthorised occupiers (sections 188 and 194 Land Act).

59.7 Adverse possession

It is worth noting that Crown land and land owned by Water Corporations cannot be adversely possessed (see sections 7 and 7AB of the Limitation of Actions Act 1958).

60 SALE OF LAND ACT 1962

60.1 General

60.1.1 As its name suggests, the Sale of Land Act 1962 (“SL Act”) seeks to regulate the sale of land in Victoria.

60.1.2 The SL Act imposes obligations on a vendor to disclose specified information relating to the land being sold to potential purchasers.



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60.1.3 It also aims to protect purchasers under certain types of contracts (terms contracts and contracts for the sale of lots on unregistered plans of subdivision) in which the purchasers are perceived to be particularly vulnerable.

60.1.4 The parts of the SL Act which may be relevant to Water Corporations include those set out below.

60.2 Vendor’s statement

60.2.1 Before a purchaser signs a contract for the sale of land, the vendor must provide the purchaser with a vendor’s statement (section 32(1) SL Act).

60.2.2 The vendor’s statement must contain specified information relating to the land, including:

(a) evidence of the vendor’s rights to sell the land. If it is a former Water Corporation that is still shown on the title as the registered proprietor of the land, then a copy of the relevant allocation statement or gazettal listing the land as one of the properties to be transferred or indicating transfer of all assets will have to be annexed to the vendor’s statement;

(b) particulars of any mortgage (section 32(2)(a)) and of any charges (section 32(2)(aa));

(c) a description of any easements, covenants or other similar restrictions (whether registered or unregistered), and particulars of any failure to comply with their terms (section 32(2)(b));

(d) prescribed details of the relevant planning instrument (section 32(2)(c));

(e) warnings that the proposed use of the property may be prohibited by planning or building controls or may require certain consents or permits and that the property may be located in an area where commercial agricultural production activity may affect the enjoyment of the property (section 32(2)(ca) and (cb));

(f) details of the rates, taxes, charges or other similar outgoings (section 32(d));

(g) particulars of any notice, order, declaration, report or recommendation of a public authority or government department or approved proposal of which the vendor might reasonably be expected to have knowledge (section 32(2)(e));

(h) details as to the services (eg, electricity, gas, water, sewerage, telephone) actually connected (not just available) to the land (section 32(2)(ea));

(i) in the case of any water supply or sewerage service connected to the land that is not of the standard level available in the locality, particulars of the level of service provided (section 32(2)(eaa));



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(j) a warning to the effect that purchasers should check with the appropriate authorities as to the availability of, and the cost of providing, any essential services not connected to the land (section 32(2)(eb));

(k) if there is no access to the property by road, a statement that there is no such access (section 32(2)(ec)); and

(l) other information listed at section 32(2)(f), (g) and (i), which includes the information referred to at section 60.2.3 of this Manual.

60.2.3 In the case of contracts for the sale of a lot on an unregistered plan and terms contracts, additional information is required to be provided in either the vendor’s statement or the contract. These types of contracts are further discussed below.

60.2.4 If a vendor supplies false information or fails to supply all of the required information, and cannot show that the vendor has acted honestly and reasonably, and ought fairly to be excused for the contravention, and that the purchaser is substantially in as good a position as if all the relevant provisions of section 32 of the SL Act had been complied with, the purchaser may rescind the contract. The purchaser can only rescind the contract if it entered into the contract on the basis of that information and has not accepted title and become entitled to possession or receipt of the rents and profits.

60.2.5 If a vendor knowingly or recklessly supplies false information to the purchaser, the vendor is guilty of an offence.

60.3 Contract for sale of a lot on an unregistered plan

60.3.1 The SL Act allows a vendor to sell a lot on a plan of subdivision even though the plan is not registered. If the plan is not registered, technically the lot does not exist. The purchaser is therefore perceived to be in need of better protection from unscrupulous vendors.

60.3.2 If the lot is on an unregistered plan:

(a) The vendor’s statement must include a copy of the latest version of the proposed plan.

(b) The contract must include details of works affecting the natural surface of the lot or any abutting lot in the same subdivision (section 9AB) and, if it does not, the purchaser can rescind the contract at any time before the plan is registered.

(c) Unless the purchaser is a statutory body or authority (and this would include a Water Corporation under the Water Act, the contract must:

(A) limit the deposit to 10% of the purchase price; and



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(B) provide for the deposit to be held in trust by the vendor's legal practitioner, conveyancer or estate agent, or be paid into a special purpose account in an authorised deposit-taking institution specified in the contract in the names of the vendor and purchaser until the plan is registered.

If the contract does not comply with these provisions, the purchaser may rescind the contract before the plan is registered.

(d) The vendor must inform the purchaser within 14 days of any amendments to the proposed plan. If the amendments will materially affect the lot to be sold, the purchaser can rescind the contract.

(e) The purchaser must be allowed reasonable access to the lot for any purpose connected with the proposed development or use of the lot but is not entitled to possession before registration of the plan.

60.4 Terms contract

60.4.1 There are 2 types of terms contracts (section 29A). They are contracts where:

(a) the purchaser is obliged to make 2 or more payments (other than a deposit or fixed payment) after the execution of the contract and before the land is transferred. In other words, if a purchaser is to make a total of 4 or more payments (including the deposit and the balance), the contract is a terms contract; or

(b) the purchaser is entitled to possession of the property before the purchase price is paid in full.

60.4.2 A vendor cannot sell under a terms contract unless the vendor is (section 29B(2)):

(a) registered on title as the owner of the land;

(b) entitled to be registered as owner of the land (eg, where the transfer in favour of the vendor has been lodged at the Land Registry); or

(c) empowered by statute to execute a registrable transfer of land (eg, mortgagee exercising its power of sale).

60.4.3 If land is subject to a mortgage, the mortgagor must not sell the land under a terms contract unless (section 29M):

(a) the mortgage relates only to that land;

(b) the contract expressly states that the land is subject to a mortgage;



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(c) the contract provides that the consideration for the sale of the land is to be satisfied, to the extent of any mortgage money owing at the date on which the purchaser is entitled to possession or receipt of the rents and profits of the land sold, by the purchaser assuming as from that date the obligations of the mortgagor under the mortgage; and

(d) the contract gives the particulars of the mortgage referred to in Schedule 1 of the TL Act (section 29M).

There are some exemptions to this (see section 29O).

60.4.4 If a terms contract is entered into in contravention of section 29M (section 29N):

(a) the contract is voidable by the purchaser at any time before the completion of the contract; and

(b) the vendor is guilty of an offence and liable to a penalty of not more than 60 penalty units, in the case of a natural person or 300 penalty units, in the case of a body corporate.

60.4.5 Once a terms contract is signed:

(a) the purchaser is entitled to require the vendor to transfer the property to the purchaser even though the price has not been paid by the purchaser in full. In return, the purchaser must execute a mortgage in favour of the vendor, or any other person the vendor requires, as security for the unpaid portion of the purchase price (see section 29N);

(b) the vendor can require the purchaser to enter a transfer of the property subject to a mortgage back but must by the stamp duty on the transfer which is then added to the amount secured by the mortgage (section 29Q); and

(c) the vendor must not mortgage the property (section 29P).

60.4.6 If certain sections of the SL Act relating to a terms contract are breached by the vendor, the purchaser may avoid the contract at any time before settlement and the vendor is guilty of an offence (sections 29S and 29N).

60.5 Cooling off period

60.5.1 A purchaser who has signed a contract can “cool off” within 3 business days after the purchaser has signed the contract (section 31(2)) unless:

(a) the purchaser bought the property at or within 3 business days after or before a publicly advertised auction;

(b) the purchaser has received independent advice from a legal practitioner before signing the contract;



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(c) the property is used primarily for industrial or commercial purposes;

(d) the property is more than 20 hectares in size and is used primarily for farming;

(e) the purchaser has signed a contract for the same property in substantially the same terms; or

(f) the purchaser is an estate agent or a corporate body.

60.5.2 It is to be noted that the 3 day cooling off period begins to run from the date the purchaser signed the contract regardless of whether the vendor has signed the contract.

60.5.3 "Cooling off" could be used by a person purchasing from a Water Corporation. However, as "cooling off" cannot be used by a purchaser which is a "corporate body", a Water Corporation could not use it when purchasing.

60.6 Stamp duty treatment of water entitlements from 1 July 2007

60.6.1 The information provided in this section has been obtained predominantly from the State Revenue Office (“SRO”) website: www.sro.vic.gov.au.

60.6.2 The SRO is of the view that water entitlements transferred together with land are not dutiable on the basis that they do not come within the definition of 'dutiable property' under section 10 of the Duties Act 2000 because water entitlements do not form part of land as they can be independently traded. The exception to this is the stock and domestic allowance in non-declared water systems. As these permanently attach to a specific parcel of land, they will be captured by the definition of 'dutiable property' and stamp duty will therefore be payable on the combined value of the land and the water entitlement.

60.6.3 In respect of transfers of land from 1 July 2007, in calculating stamp duty on the transfer, it is necessary to 'apportion' the consideration between the land and improvements and the non-dutiable water entitlements.

60.6.4 There may be now two separate contracts rather than one for the sale of land and once for sale of water.

60.6.5 For contracts involving the transfer of land and water entitlements, please see the SRO website.

61 SUBDIVISION ACT 1988

61.1 General

61.1.1 The Subdivision Act 1988 came into operation on 30 October 1989.

61.1.2 The Subdivision Act repealed the Strata Titles Act 1967 and the Cluster Titles Act 1974. As such, the procedure for the subdivision and

http://www.sro.vic.gov.au/



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consolidation of land and buildings are now regulated by the Subdivision Act (section 44).

61.1.3 The Subdivision Act provides for:

(a) the subdivision and consolidation of land;

(b) the creation, variation or removal of easements or restrictions; and

(c) the constitution and operation of owners corporations and the regulation of dealings with common property.

61.1.4 The parts of the Subdivision Act which may be relevant to Water Corporations include those set out below.

61.2 Procedure for subdivision

61.2.1 A land owner wishing to register a plan (whether it be a plan of subdivision or consolidation, or creation, variation or removal of easement or restriction) must:

(a) prepare a plan in accordance with the Subdivision Act and its regulations. A planning permit is usually required before the plan will be considered by the local municipal council, and an application for the relevant permit to be granted should be made at this stage (section 5(3) Subdivision Act);

(b) submit the plan to the local council for certification together with an application in the prescribed form (section 5(3)(c) Subdivision Act);

(c) obtain a statement of compliance from the local council after all works required by the local council and referral authorities have been completed (section 5(3)(d) Subdivision Act); and

(d) lodge the plan and statement of compliance with the Land Registry for registration. If the statement of compliance is not available when the plan is ready for lodgement, the plan may be lodged ahead of the statement of compliance (section 5(3)(e) Subdivision Act).

61.3 Certification of the plan

61.3.1 The Subdivision Act provides that if certain specified conditions are satisfied, the council must certify the plan (section 6(1)). These conditions include:

(a) plan complying with the relevant planning scheme, the Subdivision Act and its regulations;

(b) the land being under the operation of the Transfer of Land Act 1958;

(c) every relevant referral authority (eg, water, sewerage and drainage authority, VicRoads etc) having given its consent to the plan; and



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(d) all alterations required by the council and referral authorities having been made.

61.3.2 If the above conditions are not met, the council must refuse to certify the plan and must give its reasons for such refusal in writing to the applicant (section 6(2) Subdivision Act).

61.4 Statutory requirements for plans

61.4.1 The plan should be prepared by a surveyor. The plan must specify existing and proposed easements, their purpose (eg, drainage, or sewerage, powerlines etc) and name either the land benefiting from the easements or the person in whose favour they are created (eg, the relevant Water Corporation).

61.4.2 The council or referral authority may require engineering plans for works required by the authority to be submitted (section 15 Subdivision Act).

61.4.3 The land owner must not commence such works until (section 17 Subdivision Act):

(a) the plan has been certified (section 17(1)(a));

(b) the engineering plan has been approved (section 17)(1)(b)); and

(c) any agreement required by the relevant authority or council has been signed by the land owner (section 17(1)(c)).

61.4.4 All works carried out by the land owner must comply with the certified plan and the engineering plans.

61.5 Public open space

61.5.1 The council may require the land owner to set aside a certain percentage of the land being developed (up to 5% under the Subdivision Act, often greater under planning permit) as public open space (section 18 Subdivision Act).

61.5.2 Alternatively, the council may agree for the land owner to pay a levy in lieu of the value of the land to be set aside as public open space (section 18(1)(b) Subdivision Act).

61.6 Statement of compliance

The council must issue the land owner with a statement of compliance if (section 21 Subdivision Act):

61.6.1 the land owner has supplied all the prescribed information to the council (section 21(1)(a) Subdivision Act); and

61.6.2 the council is satisfied that:

(a) all the requirements of the Subdivision Act and the Planning and Environment Act 1987 have been met (section 21(1)(b)(i) Subdivision Act); or



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(b) there is an agreement to secure compliance with the requirements (section 21(1)(b)(ii) Subdivision Act).

61.7 Registration of plan

61.7.1 The Registrar of Titles may register the plan if:

(a) the plan has been certified by the council and the certification remains valid (it cannot be registered if it was certified more than 5 years prior to the date which it would otherwise have been registered);

(b) the statement of compliance is lodged;

(c) any right to take water conferred by section 8 of the Water Act is allocated as specified in the plan;

(d) each person, who has lodged a mortgage or caveat before the plan was lodged, consents in writing to the plan being registered; and

(e) the land is under the operation of the Transfer of Land Act 1958.

61.7.2 The Registrar may make minor corrections to a plan or require the applicant to make them, or may return the plan to the applicant for amendment (section 22(2) Subdivision Act).

61.7.3 Upon registration of the plan:

(a) any land set aside as a road reserve vests in the relevant authority free from any encumbrances (eg, mortgages, leases and section 173 agreements) (section 24(2));

(b) any easement, restriction or other right is created, varied or removed as specified in the plan;

(c) any easements or rights implied by section 12(2) of the Subdivision Act are created; and

(d) the registered plan replaces or modifies any previous registered plan.

61.7.4 The Registrar must issue a certificate of title for each lot on the plan.

61.8 Subdivisions with owners corporation

61.8.1 The Owners Corporations Act 2006 has changed a number of provisions relating to bodies corporate. It has also amended the Subdivision Act 1988 and the Subdivision (Body Corporate Regulations) 2001 have been repealed as at December 2007. These changes commenced on 31 December 2007. The law governing bodies corporate (now known as “owners corporations”) is now the Owners Corporation Act 2006, the Subdivision Act 1988 and the Owners Corporation Regulations 2007.



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61.8.2 Subdivisions with owners corporations are more common in cases where the subdivision relates to buildings or smaller land subdivisions where there is common property (eg, stairways, common grounds, common driveways etc) to be maintained by the lot owners.

61.8.3 A plan which contains common property must provide for the creation of one or more owners corporations (section 27A Subdivision Act).

61.8.4 Upon registration of the plan providing for an owners corporation, the owners corporation becomes incorporated (section 28). The owners corporation has perpetual succession and a common seal and is capable of suing and being sued in its own name (section 28(2) Subdivision Act).

61.8.5 The owners corporation holds all common property as "nominee" of all the lot owners.

61.8.6 As owners corporations may be for different purposes, there can be multiple owners corporations. For example, a special owners corporation could be created to take water from a supplier and disperse it to the owners corporation members.

61.8.7 The owners corporation remains primarily liable for any water supplied to the major connection to a subdivision (section 263A Water Act). Generally:

(a) this refers to supply to the common property;

(b) individual connections to individual lots are the liability of the lot owner; and

(c) Water Corporations can agree to apportion the account to individual lots but care as to how they agree must be taken to ensure final liability rests with the owners corporation.

62 TRANSFER OF LAND ACT 1958

62.1 The Transfer of Land Act 1958 (“TL Act”) deals with the registration of dealings with land, except for land still owned by the Crown. Over 90% of all land in Victoria is covered by this legislation.

62.2 The remaining land, other than Crown land, is known as "old law" or "general law" land. Here, the owner or mortgagee holds a "chain of title", which can comprise numerous documents of transfer or mortgage dating back to an original Crown grant. This land is difficult to deal with as the chain of title must be inspected in great detail on each dealing (eg, usually at significant cost to the owner). It is now easier than ever to bring such land under the operation of the TL Act and much more land is being "converted" in this way. If "old law" land is to be subdivided, it must now be converted.

62.3 The TL Act sets up a system of registration of titles to land. That is where the owner of the land holds a certificate of title or Crown grant, or perhaps a Crown lease, as evidence of ownership. Significantly, registration is conclusive evidence of title, with few exceptions, such as rights of adverse possession, easements and public rights



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of way or fraud. Persons dealing with a registered proprietor (ie, owner) of land are not required to make any enquires concerning the title, and are not affected by notice of any claimed interest of another party which is not shown on the title, except in the case of fraud and several exemptions to indefeasibility as set out in section 42 of the TL Act.

62.4 Most of the provisions of the TL Act deal with technical matters relating to the registration of title to land, and subsequent dealings with the land including transfers, leases and mortgages. These matters will invariably require legal involvement and assistance.

62.5 Of particular interest to Water Corporations:

62.5.1 Easements may be registered under the legislation (section 72 TL Act), but the lack of registration is not fatal. In other words, a person buying land takes the land subject to any easements affecting the land, whether registered or not. As a result, careful enquiries need to be made whenever acquiring land. Easements can be disclosed by, for example, the presence of a defined track or path across land, gates or other openings in fences, overhanging eaves, spouting or other parts of an adjoining building, and drains, sewers or other pipes across or underneath the property.

62.5.2 Similarly, rights of "adverse possession" encumber the land even though they are not recorded on the register, except where the land is subject to the right, title or interest of a Water Corporation or Melbourne Water. Pursuant to section 7AB of the Limitation of Actions Act 1958, the right, title or interest of a Water Corporation and Melbourne Water under the Water Act, is not affected by any possession of land adverse to the Water Corporation, irrespective of the period of that possession.

62.5.3 The interest of a tenant in possession of land (excluding any option to purchase) is protected against subsequent owners, even though the interest is not registered.

62.5.4 The TL Act also allows for registration of leases for terms exceeding 3 years (section 66 TL Act). However, this is not common in Victoria except where the tenant is not in actual occupation of the land. This might be the case, where, for instance, the tenant sub-lets the property to a third party.

62.5.5 The TL Act also contains conditions of sale of land which need to be incorporated in the standard contract for the sale of land used in Victoria but these have been essentially replaced by the new form of contract prescribed under the Estate Agents (Contracts) Regulations 2008 which came into operation on 28 September 2008. Special conditions in contracts may exclude the standard conditions and care needs to be taken.

63 PROPERTY LAW ACT 1958

63.1 The Property Law Act 1958 (“PL Act”) is essentially a re-enactment of the English legislation of the same name. It deals with many issues, most of which relate to real



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estate, and some of which deal with all land in Victoria, including land under the Transfer of Land Act 1958.

63.2 Part 1 of the PL Act deals with the registration of transfers and other documents concerning "old law" land or "general law" land (that is, land not under the operation of the Transfer of Land Act 1958). There is very little such land left in Victoria today. The complexity of dealings with old law land means that legal advice and assistance is imperative.

63.3 Part 2 of the PL Act is described as "the general law of property and conveyancing". Included in this part are various general and miscellaneous principles of property law, provisions dealing with mortgages, and provisions dealing with leases and tenancies. The latter group warrants a special mention as it is most often encountered in practice. Various sections deal with the following:

63.3.1 The sections (Division 5) dealing with leases are stated to apply to all land, whether under the Transfer of Land Act 1958 or not.

63.3.2 A sub-tenant is protected against surrender or merger of the head lease, and becomes tenant of the head lessor (section 150 PL Act).

63.3.3 The terms and conditions of a lease, both on the part of a landlord and a tenant, "run with" the land. In other words, where a lease is in place and the subject property is sold, the new owner becomes the landlord under the lease, and the tenant must pay rent to the new owner, who in turn can enforce all the lease terms against the tenant.

63.3.4 If a lease contains a covenant against the tenant transferring the lease (as most leases do), such consent must not be withheld unreasonably, unless the lease specifically provides to the contrary.

63.3.5 A landlord cannot terminate a lease for breach of any term of the lease (except non-payment of rent) without first giving the tenant a notice specifying the breach and requiring it to be remedied within 14 days.

63.4 Only one other part of the PL Act merits specific mention in the present context. Part 7 deals with survey boundaries and applies to all land, whether under the Transfer of Land Act 1958 or not. Every title description is to be read as though the words "a little more or less" follow the measurements, and an allowable difference from the dimensions shown on title is specified by the PL Act. This is 50 mm for any boundary line having a length up to 40.30 metres. If the length of the boundary line exceeds 40.30 metres, the allowance is a margin of 0.20%.

64 NATIVE TITLE ACT 1993 (CTH)

64.1 General

64.1.1 The main objects of the Native Title Act 1993 (Cth) (“NT Act”) are: to provide for the recognition and protection of native title; to establish ways in which future dealings affecting native title may proceed; to establish a mechanism for determining claims to native title; and to provide for the validation of past acts invalidated because of the existence of native title.



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64.1.2 The NT Act recognises that the people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement and that they have been progressively dispossessed of their lands. This dispossession occurred largely without compensation and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

64.1.3 In enacting the NT Act, the Australian Government has sought to implement international standards for the protection of universal human rights and fundamental freedoms.

64.1.4 The Land Titles Validation Act 1994 is the relevant Victorian legislation which brings the State of Victoria under the operation and regulation of the NT Act.

64.2 Entitlement to compensation

64.2.1 The NT Act provides that, in certain circumstances, where a proposed act interferes with native title, then any Aboriginal peoples or Torres Strait Islanders who hold native title in relation to the relevant land will be entitled to compensation.

64.2.2 Claimants do have certain rights in relation to certain acts, for example the right to be notified and the right to negotiate.

64.2.3 Ordinarily, compensation may be paid by the State Government or Commonwealth if native title has been extinguished.

64.3 Determining whether native title is affected

64.3.1 Where it can be shown that a so called “extinguishing act” has occurred on land, native title will not be an issue. To determine whether native title has been extinguished it is necessary to undertake a review of the history of the land upon which works are proposed.

64.3.2 The clearest example of where native title has been extinguished is where the Crown has granted freehold title to the relevant land and it was owned by a natural person or company (not a statutory authority or government entity) prior to 1 January 1994.

64.3.3 In many instances, land under the control of government entities, such as Water Corporations, will not have been owned by a natural person or company prior to 1 January 1994. In these cases, native title may still exist unless a past or intermediary act can be shown to have extinguished native title.

64.3.4 Past and intermediary acts are broken up into four different categories. The most relevant being “Category A Past Acts”, which include where there have been public works.



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64.3.5 The term “public work” is defined in section 253 of the NT Act to mean:

“(a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:

(i) a building, or other structure (including a memorial), that is a fixture; or

(ii) a road, railway or bridge; or

(iia) …a stock-route; or

(iii) a well, or bore, for obtaining water; or

(iv) any major earthworks; or

(b) a building that is constructed with the authority of the Crown, other than on a lease.”

64.3.6 Importantly, a reference to land or water on which a public work is constructed, established or situated includes a reference to any adjacent land, the use of which is or was necessary for, or incidental to the construction, establishment or operation of the work (section 251D NT Act).

64.3.7 Therefore, if it can be shown that “public works” presently exist on land, or did so prior to 1 January 1994, native title will have been extinguished. In such circumstances compensation may be payable to native title holders.

64.3.8 Further, if public works were undertaken between 1 January 1994 and 23 December 1996, this may also have the effect of extinguishing native title.

64.3.9 If such an issue does arise it may be appropriate to attempt to negotiate with the relevant Aboriginal peoples an agreement to settle the issue. Agreements specifically designed for this purpose, called Indigenous Land Use Agreements (“ILUAs”), are provided for under the NT Act.

64.4 ILUAs

64.4.1 ILUAs are provided for in sections 24BA - 24EC of the NT Act. An ILUA provides an opportunity for proponents to agree with native title holders or claimants on aspects of native title or to agree on practical aspects of determined native title rights. Once registered, the ILUA binds all native title holders and caps compensation for native title parties.

64.4.2 ILUAs can be entered into at any stage with native title claimants, native title holders or representatives. They provide certainty in that the works or acts provided for in the ILUA are validated and proponents can plan for the future with knowledge that native title issues will not arise in the future.



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64.4.3 One of the attractive aspects of an ILUA is that the form of compensation that may be agreed to does not necessarily have to be monetary. Proponents can, for example, agree to employ or train members of the relevant Aboriginal peoples in aspects of their business.

64.5 Notification

64.5.1 Water Corporations are required to give notification in relation to certain public works they undertake. The most relevant of these circumstances is where they propose to do works either within:

(a) areas covered by land reserved for water related purposes but on which native title has not been extinguished (section 24JA NT Act); or

(b) on areas outside areas reserved for water related purposes on which native title has not been extinguished (section 24KA NT Act).

64.5.2 A review of the history of land use in relation to areas on which works are proposed is necessary to determine whether native title has been extinguished. Where it has not been extinguished a notice prior to the public works being done is required to be given to either any relevant native title claimants, native title holders or a representative body, as the case may be. These notices are required to allow a period of time (28 days) for obtaining comment from those given notice of the future works. Where appropriate, those comments can be considered and discussed with the relevant party which provides the comments. It should be noted that compensation in relation to these future public works is only required to be paid to actual native title holders of which there are presently none in Victoria. However to comply with the statutory obligations set out in the NT Act, notification is still required in the circumstances provided for in sections 24JA and 24KA.

65 TRADITIONAL OWNER SETTLEMENT ACT 2010

65.1 The Traditional Owner Settlement Act 2010 (“TOS Act”) provides for an out of court settlement of native title and is an alternative native title settlement framework to that of the Commonwealth Native Title Act.

65.2 The TOS Act allows the Victorian Government to enter into recognition and settlement agreements with traditional owner group entities. The purpose of these agreements is to recognise a traditional owner group’s relationship to land, provide proprietary rights and other use or management rights in relation to the public land which is the subject of a recognition and settlement agreement with the entity.

65.3 Four sub-agreements sit below a recognition and settlement agreement, each of which is an agreement in its own right. One of these agreements is a land use activity agreement, which may have an impact on public works being conducted on land subject to a recognition and settlement agreement.

65.4 When entering a recognition and settlement agreement, the traditional owner group entity (which represents the traditional owner group for the purposes of the TOS Act) agrees to withdraw any native title claim the group has and to not make a claim into



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the future. The recognition and settlement agreements bind all native title holders and claimants for the subject area now and into the future.

65.5 At the time of writing only one recognition and settlement agreement has been entered into with the Gunai Kurnai Traditional Owners. No land use activity agreements have yet been finalised.

66 NATIONAL PARKS ACT 1975

66.1 General

66.1.1 Parks Victoria manages most parks in Victoria. Parks Victoria operates pursuant to the Parks Victoria Act 1998.

66.1.2 The objects of the National Parks Act 1975 (“NP Act”) are as follows:

(a) In respect of national parks, state parks, marine national parks and marine sanctuaries, to make provision for (section 4(a) NP Act):

(1) the preservation and protection of the natural environment including wilderness areas and remote and natural areas in those parks;

(2) the protection and preservation of indigenous flora and fauna and of features of scenic or archaeological, ecological, geological, historic or other scientific interest in those parks;

(3) the study of ecology, geology, botany, zoology and other sciences relating to the conservation of the natural environment in those parks and for the responsible management of the land in those parks; and

(4) the responsible management of the land in those parks.

(b) In respect of designated water supply catchment areas in national parks, to make provision for (section 4(aa) NP Act):

(1) the protection of those areas;

(2) the maintenance of the water quality and otherwise for the protection of the water resources in those areas;

(3) the restriction of human activity in those areas for the purpose of protecting the areas and the water resources;

(4) ensuring that appropriate and sufficient measures are taken (including seeking the making of appropriate agreements

under section 32I NP Act);

(5) to protect designated water supply catchments; and

(6) to maintain the water quality of those areas and otherwise protect the water resources.



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The term “designated water supply catchment area” is defined in section 3(1) of the NP Act to mean:

“(a) any Melbourne water supply catchment area; or

(b) the Barwon water supply catchment area; or

(c) The South West water supply catchment area.”

The Secretary before exercising any power, functions or duties under the NP Act in a designated water supply catchment area, must consult with Melbourne Water (section 17(3) NP Act). It is sufficient to comply with such requirement to enter into a

management agreement with Melbourne Water under section 32I (section 17(4) NP Act).

(c) In respect of wilderness parks, to make provision for (section 4(ab) NP Act):

(1) the protection, enhancement and management of those parks as wilderness, so as to maximise the extent to which those parks are undisturbed by the influences of the European settlement of Australia;

(2) the protection, preservation and evolution of the natural environment, including indigenous flora and fauna and of features of ecological, geological, scenic, archaeological and other scientific significance;

(3) the use and enjoyment of those parks by the public for inspiration, solitude and appropriate self-reliant recreation; and

(4) the study of ecology, geology, botany, zoology archaeology and other services relating to the environment in those parks.

(d) In respect to certain other parks, which are listed in Schedule 3 to the NP Act:

(1) to make provision, insofar as is appropriate to each such park, for the protection and preservation of indigenous flora and fauna and of features of scenic or archaeological, ecological, historic or other scientific interest; and

(2) to make provision for the use of parks by the public for the purposes of enjoyment, recreation or education and for the encouragement and control of that use, subject to the above.

66.2 Public authorities

66.2.1 In the NP Act, a reference to a public authority includes a reference to statutory authorities like Water Corporations (section 3(2) NP Act).



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66.2.2 A public authority may perform its functions and exercise its powers in relation to a park if it has obtained the consent of the Secretary to DSE, so long as the functions are allowed under the NP Act and the regulations under it (section 27(1) NP Act).

66.2.3 The Secretary to DSE may not consent to the performance of functions by a public authority if the Minister responsible for the administration of the NP Act considers that the performance of functions may substantially affect a park, unless the Governor in Council determines that consent should be given (section 27(2) NP Act).

67 CATCHMENT AND LAND PROTECTION ACT 1994

67.1 Application

67.1.1 The purposes of the Catchment and Land Protection Act 1994 (“CLP Act”) are to:

(a) set up a framework for the integrated management and protection of catchments;

(b) encourage community participation in the management of land and water resources; and

(c) set up a system of controls on noxious weeds and pest animals.

67.1.2 The CLP Act establishes the Victorian Catchment Management Council and the CMAs.

67.2 Definitions

67.2.1 The term "Land Owner" is defined to include:

(a) the owner of land;

(b) the occupier under a lease, licence or other right of Crown land;

(c) VicRoads if the land is a freeway or arterial road within the meaning of the Road Management Act 2004;

(d) the Director for Crown land in a national park or park within the meaning of the National Parks Act 1975; and

(e) for Crown land that does not fall within the above, the Minister or public authority managing the land.

67.2.2 The term "Public Authority" includes a body corporate created for a public purpose by or under an Act, or a body declared to be a public authority by order of the Governor in Council (ie, the definition includes Water Corporations).



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67.3 Duties of land owners

Duties of land owners are set out under section 20 of the CLP Act. These include to take all reasonable steps to:

67.3.1 avoid causing or contributing to land degradation which causes or may cause damage to land of another land owner;

67.3.2 conserve soil;

67.3.3 protect water resources;

67.3.4 eradicate regionally prohibited weeds;

67.3.5 prevent the spread of and as far as possible eradicate established pest animals; and

67.3.6 take steps to prevent the spread of weeds and pest animals on to adjoining roadsides.

67.4 Duties of public authorities

In carrying out a function, including land management, on behalf of the Crown or under an Act, a public authority must have regard to any regional catchment strategy applying to the land (section 26 CLP Act). Regional catchment strategies are prepared upon recommendation of the CMAs and may be incorporated in SEPPs and planning schemes.

67.5 Special areas declared

67.5.1 A CMA may request a declaration of a special area in a region which may be classified as a special water supply catchment area (see listing at Schedule 5 of the CLP Act).

67.5.2 A Special Area Plan sets out a plan to deal with specific land management issues in a specific area. When a public authority is carrying out a function involving land management, it must have regard to any Special Area Plan applying to the land (section 32 CLP Act).

67.5.3 The CLP Act enables the serving on a land owner of a Land Use Condition and a Land Management Notice in accordance with a Special Area Plan. Land Use Conditions are binding on all owners and failure to comply is an offence. A Land Management Notice is personal to the land owner and does not run with the land.

67.6 Land management notices

67.6.1 The CLP Act provides that the Secretary can issue Land Management Notices (“LMN”) on land owners if the land owner has failed to comply with Part 3 of the CLP Act. Part 3 relates to land owners being required to:



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(a) take all reasonable steps to avoid causing or contributing to land degradation which causes or may cause damage to land of another land owner;

(b) conserve soil;

(c) protect water resources;

(d) eradicate regionally prohibited weeds;

(e) prevent the spread of and as far as possible eradicate established pest animals; and

(f) take steps to prevent the spread of weeds and pest animals onto adjoining roadsides.

67.6.2 A LMN can also be served if the Secretary is satisfied that measures need to be taken by the land owner to eradicate or prevent the growth or spread of noxious weeds that are not State prohibited weeds.

67.6.3 An interim LMN may be served if the Secretary considers that there is an immediate and serious threat of land degradation that could be prevented or minimised by taking appropriate action.

67.6.4 The Minister responsible for the CLP Act may prepare written guidelines about the content of LMNs and interim LMNs.

67.7 Conflict LMNs and land use conditions

The Secretary cannot serve a LMN applying to land if the LMN would conflict with or duplicate a Land Use Condition applying to that land. If a LMN applies to land and a Land Use Condition is later imposed that applies to the same land and conflicts with or duplicates the notice, the LMN is revoked to the extent of that inconsistency or duplication, from the date when the land use condition is served on the land owner.

67.8 Appeals

Land owners can appeal certain decisions regarding LMNs and Land Use Conditions to VCAT (section 48 CLP Act).

67.9 Noxious weeds and pest animals

67.9.1 On the Minister's recommendation the Governor in Council may declare a plant to be a State prohibited weed (section 60 CLP Act); regionally prohibited weed (section 61); regionally controlled weed (section 62 CLP Act); or restricted weed (section 63 CLP Act).

67.9.2 The Governor in Council may also declare an animal to be a prohibited pest animal (section 64 CLP Act); controlled pest animal (section 65 CLP Act); regulated pest animal (section 66 CLP Act); or established pest animal (section 67 CLP Act).

67.9.3 Notices regarding the control of noxious weeds may be served on a land owner (section 70 CLP Act).



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67.9.4 Permits are required before machinery, soil and/or grain carrying a noxious weed or seeds of a noxious weed can be moved (section 71).

68 FENCES ACT 1968

68.1 General

68.1.1 The Fences Act regulates the rights and obligations of adjoining land owners to construct and maintain fences.

68.1.2 The Fences Act does not apply to unalienated Crown land (except where otherwise specified below) nor does it apply to (section 31 Fences Act):

(a) the Crown;

(b) the Governor;

(c) the Minister for DSE; or

(d) any public officer appointed to administer Crown land or public works.

It does, therefore (unless Crown land is involved) apply to Water Corporations.

68.1.3 The above bodies are not liable under the Fences Act to make any contribution towards fencing costs where the fence divides any land from Crown land. The Fences Act also does not affect any fencing agreement between a landlord and tenant or between occupiers of adjoining land.

68.1.4 If a land owner wishes to construct a fence on the land owner's boundary, the neighbour is liable to contribute to the cost of the fence (section 4 Fences Act). If the parties cannot agree to the manner of apportioning the costs, or the type of fence required, it will be determined by the Magistrates’ Court (section 4(1)(b) Fences Act). The fence must be sufficient for the purposes of both adjoining land owners. A land owner wanting his or her neighbour to contribute to the construction of a fence may serve on his or her neighbour a written notice to fence (section 6 Fences Act). If the neighbour refuses to contribute, the land owner may lodge a complaint with the Magistrates’ Court for the appropriate order (section 7 Fences Act). Parties cannot contract out of this provision.

68.2 Vermin proof fences

68.2.1 The Minister of DSE may certify that a vermin proof fence (defined in section 17 of the Fences Act) is necessary for any adjoining properties. The adjoining landowners must then contribute equally to the construction of the vermin proof fence (section 19 Fences Act).

68.2.2 Anyone aggrieved by the Minister's certification may lodge a statement of objection with the Minister (section 19(3) Fences Act).



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68.2.3 This section does not apply to Crown land or any land vested in any "Authority" under the Water Act (section 19(4) Fences Act).

68.3 Land owner cannot be found

68.3.1 If a land owner cannot be found, or the land is unoccupied, the adjoining land owner may nevertheless, after fulfilling certain notice requirements, proceed to obtain a court order authorising the construction of a fence. Any subsequent occupier of the previously unoccupied land may then be liable for part of the cost.

68.3.2 If the adjoining land is unalienated Crown land, a land owner is entitled to later claim from the first occupier of the Crown land half of the actual value of the fence at the time of the claim. If the occupiers cannot agree on a value, then it will be determined by the court.

68.4 Watercourse forms boundary of property

If a watercourse forms a natural boundary between the adjoining land, the land owners may agree to construct a fence on either side of the watercourse (section 5(1) Fences Act). In the absence of such agreement, a magistrate will be asked to determine the fence line (section 5(2) Fences Act). The adjoining land owners cannot contract out of this provision.

68.5 Where property is occupied by a tenant

If a notice to fence is served in respect of tenanted land, the cost may be shared between the landlord and tenant (section 10(1) Fences Act). How the cost is apportioned between landlord and tenant will depend on the term of the tenant's lease. Generally, the longer the term of the lease the greater the tenant's proportion. However, if the tenant is served with a notice to fence he or she must, within fourteen days, serve a copy of that notice on the landlord (section 10(3) Fences Act). Otherwise, the tenant will be liable to pay the landlord's share too (section 10(4) Fences Act). This provision cannot be changed or revoked by agreement (section 30 Fences Act).

68.6 Maintenance and repair of fences

If a fence needs repairing, the adjoining land owners must contribute to the cost of the repair (section 14 Fences Act). The proportion of each land owner's contribution depends on how the fence was damaged. A land owner may serve on his or her neighbour a notice to repair asking the neighbour to contribute to the repair cost (section 15 Fences Act). If the neighbour does not contribute to the costs within a week, the land owner may nevertheless proceed to repair the fence and demand the proportion payable by his or her neighbour (section 15(2) Fences Act).

69 LAND ACQUISITION AND COMPENSATION ACT 1986

69.1 When does the Act operate?

69.1.1 The Water Act is a special Act for the purposes of the Land Acquisition and Compensation Act 1986 (“LAC Act”). When a Water Corporation wants to control the use of privately owned land in some way, or acquire



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that land, it will usually be required to pay appropriate compensation to any person affected (section 4 LAC Act).

69.1.2 This legislation has application either on the instigation of the Water Corporation or on the instigation of another party due to its provisions being triggered. In general terms, the LAC Act will be triggered where the Water Corporation:

(a) wishes to acquire land by agreement;

(b) wishes to acquire land compulsorily;

(c) wishes to acquire an interest in land (eg, an easement);

(d) as a referral authority, acts to have a planning permit refused or issued in amended form due to the public reservation of the particular land; and

(e) seeks to amend the planning scheme to reserve land without yet acquiring that land.

69.1.3 Section 5(1) of the LAC Act states that the acquiring authority:

“must not commence to acquire any interest in land under the provisions of the special Act unless the land has been first reserved by or under a planning instrument for a public purpose.”

69.1.4 In any planning scheme which has a Public Acquisition Overlay, clause 45.01-5 provides that any land included in a Public Acquisition Overlay is reserved for a public purpose within the meaning of the Planning and Environment Act 1987 or the LAC Act or any other Act. This means that the land is considered to be reserved for a public purpose if it is subject to an appropriate Public Acquisition Overlay, despite the fact that the LAC Act still refers to land being reserved for a public purpose.

69.1.5 Therefore, before an authority can acquire land by compulsory process, if the land is not already zoned or reserved for a public purpose, it must either:

(a) amend the relevant planning scheme to reserve the land for a public purpose (ie, impose a Public Acquisition Overlay over the land); or

(b) satisfy itself that the acquisition comes within the so-called “exceptions to reservation”.

69.1.6 Part 9 of the LAC Act provides for power of entry onto land for certain purposes. These provisions may or may not be applicable in the circumstances and should be considered on a case by case basis.

69.2 Compulsory acquisition

69.2.1 After the appropriate overlay control is imposed (if necessary), the Water Corporation is then in a position to serve a Notice of Intention to Acquire



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the land (“NITA”) on the land owner. The detailed procedure is set out in Part 2 of the LAC Act. Of note is the following:

(a) There are particular forms that need to be served on the land owner and any other person who has an interest in the land (eg, a mortgagee).

(b) The Land Acquisition and Compensation Regulations 2010 (“LAC Regs”) also apply and should be reviewed, as these provide the necessary exemptions to planning scheme amendments and the forms for issuing to the various parties.

(c) The NITA must be served on:

(1) the owner or other interested parties (eg, tenants and mortgagees);

(2) the local council (as the municipality and the responsible authority); and

(3) the Registrar of Titles.

(d) The NITA lapses 6 months after service (unless extended by agreement for periods of up to 3 months) or it can be cancelled.

(e) After the NITA is served, generally the parties enter into negotiations, if they have not already done so, about the acquisition of the land by agreement. (This is to be preferred).

(f) If agreement cannot be reached as to a price, then the acquiring authority can proceed to serve a Notice of Acquisition (“NOA”) 2 months after the service of the NITA. By preference, this should not be done unless the acquisition is particularly urgent or until quite a substantive effort has been made to agree to a sale at a price.

(g) On the date of the publication of the NOA in the Victoria Government Gazette, the land or the interest (eg, easement) being claimed via the NOA, vests in the acquiring authority and the land owner and/or tenants must give up possession of the land or the relevant interest in the land. If agreement has not been reached and this must be enforced against the wishes of the owner or other interested party, legal advice must be obtained as it can create both legal and practical difficulties. Special requirements apply to the date when an acquiring authority can enter into possession of the land and, in some circumstances, there is a minimum of 3 months' notice before possession can be obtained (see section 26 of the LAC Act).

(h) After publication of the NOA in the Victoria Government Gazette, specific documents must be served on all persons who received the NITA and anyone else with an interest in the land described in the NITA and the acquiring authority must make an offer of compensation. In certain circumstances, the landowner has the



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option of stating that the offer is not acceptable at that amount but requiring an initial payment up front as an advance of compensation - a pre-payment in effect. The acquiring authority is obliged to make that payment and if it fails to do so interest will accrue on that amount until the payment is made.

69.3 Valuation in dispute

In general terms, compensation is complicated and legal advice should be obtained. (See Part 4 of the LAC Act in respect of the measure of compensation).

69.4 Where disputes are resolved

69.4.1 Where the parties are in dispute under the LAC Act, the matter can be resolved either in VCAT (exercising powers similar to the old Land Valuation Board of Review) or in the Supreme Court, depending on the relevant amount and the choices of the parties. It is likely the matter would end up before VCAT. This is controlled by Part 10, sections 80 to 98 of the LAC Act.

69.4.2 In terms of an application before VCAT:

(a) a hearing generally involves presentation of valuation evidence on both parties behalf and whatever other submission material, in the form of legal or merits matters, is required; and

(b) it should be noted that costs of VCAT and court proceedings (unlike the earlier steps in the acquisition process) that are incurred by the owner or other interested party are not automatically payable by the acquiring authority as part of the compensation award.

69.5 Impact of the Planning and Environment Act

Part 5 of the Planning and Environment Act 1987 (“P&E Act”) allows owners or occupiers of land to claim compensation in specified circumstances as set out below.

69.5.1 Right to compensation

(a) Under section 98(1) of the P&E Act the owner or occupier of any land may claim compensation from the planning authority “for financial loss suffered as the natural, direct and reasonable consequence of” the following:

(1) the land being reserved for a public purpose under a planning scheme; or

(2) the land being shown as reserved for a public purpose in a proposed amendment to a planning scheme of which notice has been published in the Victoria Government Gazette under section 19; or



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(3) a declaration of the Minister under section 113 that the land is proposed to be reserved for a public purpose; or

(4) access to the land being restricted by the closure of a road by a planning scheme.

(b) Clause 45.01-5 in any planning scheme which has a Public Acquisition Overlay provides that any land included in a Public Acquisition Overlay is reserved for a public purpose.

(c) However, a person cannot claim compensation under section 98(1) if:

(1) the planning authority has purchased or compulsorily acquired the land or part of the land; or

(2) a condition on the permit provides that compensation is not payable.

(d) Under section 98(2) of the P&E Act “the owner or occupier of any land may claim compensation from a responsible authority for financial loss suffered as the natural, direct and reasonable consequence of a refusal by the responsible authority to grant a permit to use or develop the land on the ground that the land is or will be needed for a public purpose”.

69.5.2 When does the right to compensation arise?

(a) Under section 99 of the P&E Act a right to compensation and the liability of a planning authority or responsible authority to pay that compensation arises on the happening of specified events which correspond with section 98(1)(a), (b), (c) and (d) as follows:

(1) under section 98(1)(a), (b) or (c):

(A) on the sale of the land concerned under section 106; or

(B) after:

the responsible authority has refused to grant a permit for the use or development of the land on the ground that it is or may be required for a public purpose; or

the VCAT directs that a permit must not be granted on the ground that the land is or may be required for a public purpose; or

the responsible authority-

o fails to grant a permit within the period prescribed for the purposes of section 79 (P&E Act); or



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o grants a permit subject to any condition which is not acceptable to the applicant:-

and VCAT disallows any application for review of the failure or condition on the ground that the land is or may be required for a public purpose;

(2) under section 98(1)(d) - on the coming into operation of the relevant provision of the planning scheme; or

(3) under section 98(2) - on the refusal of the permit.

69.5.3 Compensation for loss on sale under section 106

(a) Section 106(1) of the P&E Act provides that the owner of land may claim compensation under section 98 after the sale of the land if:

(1) the owner of the land sold it at a lower price than the owner might reasonably have expected to get if the land or part of the land had not been reserved or proposed to be reserved; and

(2) before selling the land, the owner gave the planning authority not less than 60 days notice in writing of the owner’s intention to sell the land.

(b) However, under section 106(2) the owner is not required to give 60 days’ notice if:

(1) the owner and the planning authority have agreed that the owner does not have to give notice; or

(2) before or after the sale, the Minister exempts the owner from giving notice on the ground that the requirement to give notice would cause hardship to the owner.

69.5.4 Who can claim?

(a) The provisions of Part 5 of the P&E Act refer to the owner or occupier of land but section 98AA states that “occupier” does not include a committee of management and “owner” does not include an owner within the meaning of paragraph (c) or (d) of the definition of “owner” in section 3, which is as follows:

“(c) in relation to Crown land reserved under the Crown Land (Reserves) Act 1978 and managed or controlled by a committee of management, means the Minister administering that Act; and

(d) in relation to any other Crown land, means the Minister or public authority that manages or controls the land”.

(b) Under section 108(1) a person does not have a claim for compensation in respect of any land if that person was not the



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owner or occupier of the land at the time the right to claim compensation arose.

(c) Also, section 108(2) prevents claims for compensation in respect of land which the person acquired after:

(1) notice is published in the Victoria Government Gazette under section 19 of a proposed planning scheme or amendment to a planning scheme which shows the land as being reserved for a public purpose; or

(2) the approval of a planning scheme or amendment reserving the land for public purposes; or

(3) a declaration under section 113 that the land is proposed to be reserved for public purposes -

“unless a subsequent amendment to the planning scheme provides or proposes more stringent planning controls over the use or development of the land.”

69.5.5 How to make a claim and assessment of compensation

(a) Parts 10 and 11 and section 37 of the LAC Act with any necessary changes apply to the determination of compensation under Part 5 of the P&E Act as if the claim were a claim under section 37 of the LAC Act (see section 105 of the P&E Act).

(b) Section 37 of the LAC Act allows a person who is entitled to claim compensation who has not already received an offer of compensation from the acquiring authority to claim compensation within two years after the date of acquisition subject to certain provisions for extension or abridgment of time set out in section 106(1) of the LAC Act.

(c) Section 37(3) of the LAC Act, provides that a claim for compensation under that section must be in the same form and contain the same particulars as a notice under section 35 of the LAC Act. Section 35(1)(a) requires a notice of claim served on an acquiring authority to be in the prescribed form. The prescribed form is Form 11 in Schedule 2 of the LAC Regs (Regulation 21) the other particulars are those set out in section 35 being:

(1) it must state the amount of compensation to which the claimant claims to be entitled under the LAC Act; and

(2) if the claimant accepts the amount of compensation offered by the acquiring authority but claims to be entitled to a further amount of compensation in respect of that acquisition, it must state:

(A) that the claimant accepts the amount of compensation offered; and



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(B) the amount of further compensation to which the claimant claims to be entitled; and

(3) it must state the interest which the claimant had in the acquired land immediately before the date of acquisition and, in the case of an interest which did not come into existence until on or after the date of acquisition, the details of that interest; and

(4) it must give details of the claimant’s entitlement to that interest; and

(5) if the claimant disputes the valuation to which the acquiring authority had regard if it made an offer, it must be accompanied by:

(A) a copy of the certificate of valuation of a person who holds the qualifications or experience specified under section 13DA(1A) of the Valuation of Land Act 1960 upon which the claim is based; and

(B) a statement setting out the method and basis of that valuation.

(d) Section 35(2) of the LAC Act also states that a notice of claim may specify any further matter which the claimant regards as being subject to negotiation.

(e) The claim should be accompanied by relevant documents, such as:

(1) a copy of the signed contract of sale; and

(2) information which supports the claim for compensation. In this regard, section 104 of the P&E Act provides that the compensation payable for financial loss under section 98 must not exceed the difference between -

(A) the value of the land at the date on which the liability to pay compensation first arose; and

(B) the value that the land would have had at the date if the land had not been affected by any circumstance set out in section 98(1) or (2) or 107 of the P&E Act.

(f) Also, under section 104A of the P&E Act, the zoning of the land at the date when the liability to pay compensation first arose may be considered in determining compensation if the provisions of section 104A(1)(a), (b) and (c) apply (which include if the land is reserved or proposed to be reserved for a public purpose).

(g) The amount of compensation payable under section 98 of the P&E Act may also be increased under section 100 in respect of a residence but must not exceed 10% of the amount of



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compensation which would have been payable except for section 100. Section 100(3) provides that all relevant circumstances must be taken into account in assessing the amount payable under section 100, including the circumstances set out in section 100(3)(a) to (e).

(h) The owner or occupier may also seek to claim “any legal, valuation or other expenses reasonably incurred in preparing and submitting the claim” in accordance with section 101 of the P&E Act.

69.5.6 Assessment of claim and disputed claim

(a) For claims under section 106 of the P&E Act, the planning authority will wish to obtain advice from its own valuer as to the compensation payable as at the day of sale and should seek such a valuation as soon as a claim is received.

(b) The planning or responsible authority must, before the expiration of three months after the day on which a notice of claim is served on it, serve upon the claimant a statement in writing replying to the notice of claim, in accordance with section 37(4) of the LAC Act (subject to any extensions or abridgment of time under section 106(1) of the LAC Act). In that statement, the authority may admit or reject the claim or make an alternative offer of compensation in accordance with section 37(5) of the LAC Act and, if the authority makes such an offer, section 37(6) requires the offer to be accompanied by:

(1) the information referred to in section 31(4) of the LAC Act namely:

(A) a copy of the certificate of valuation to which the authority has had regard in making its offer; and

(B) a statement explaining the difference between its offer and the valuation referred to in paragraph (A) if these differ; and

(C) a statement in the prescribed form setting out the principal rights and obligations of persons whose interests in land have been acquired under the LAC Act (which is Form 10 of the LAC Regs); and

(2) if the claimant has provided the authority with a copy of a certificate of valuation and the information required in section 35(1)(f) (namely the valuation and statement referred to at 69.5.5(c)(5) above), a statement explaining the difference between the authority’s offer and the valuation on which the claimant’s claim is based, together with a copy of any certificate of valuation relied upon by the authority and a statement setting out the method and basis of that valuation.

(c) In practice, a response should be given to the claimant as soon as the authority’s valuation advice is available.



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(d) Section 103 of the P&E Act allows a planning or responsible authority to reject a claim for compensation if the financial loss is less than the greater of:

(1) $500 or any greater amount prescribed by the regulations; or

(2) 0.1% of the value that the land would have had if the land had not been affected by any circumstance set out in section 98(1) or (2) or 107.

(e) If the authority fails to reply to the notice of claim within the prescribed time it is taken to have rejected the claim and it becomes a disputed claim under the LAC Act (see section 37(8) of the LAC Act). Part 10 of the LAC Act deals with disputed claims.

(f) Subject to any extension or abridgment of time under section 106(1) of the LAC Act, if the authority makes an offer of compensation under section 37(5), section 37(9) provides that the claimant must either accept or reject the offer within two months after the date of service of the offer.

(g) The offer of compensation may specify some matters to be determined by negotiation and the claimant may accept the offer subject to those matters to be negotiated (see section 37(10) and (11)).

(h) The claim becomes a disputed claim under the LAC Act where:

(1) the claimant rejects the authority’s offer; or

(2) the authority rejects the claimant’s claim; or

(3) the claimant fails to accept or reject the offer within the prescribed time,

to the extent of that rejection, (see section 37(12) and (13)).

(i) Part 10 of the LAC Act deals with determination of disputes, which can be referred either to VCAT or the Supreme Court of Victoria for determination.

(j) A disputed claim must be determined by VCAT if the amount in dispute does not exceed $50,000 but, if this amount does exceed $50,000, can be determined by VCAT or the Court at the option of the claimant or, if the claimant does not exercise that option within one month after being requested to do so by the authority, at the option of the authority.

(k) However, if the Court is satisfied on the application of any party that the claim “raises questions of unusual difficulty or of general importance”, the claim must be determined by the Court irrespective of the amount in dispute.



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69.5.7 Procedures following payment of compensation

(a) If the claim does not become a disputed claim, when the compensation has been paid, the person who has paid that compensation must lodge a statement in the prescribed form with the Registrar of Titles without delay.

(b) This statement must describe the land for which the compensation was paid and give the prescribed particulars of the compensation in accordance with section 110 of the P&E Act.

(c) This is an important procedure because it gives notice on the Register of Titles that compensation has already been paid.

(d) Under section 41(5) and (7) of the LAC Act, any compensation previously paid under Part 5 of the P&E Act is taken into account when determining compensation payable for the actual acquisition of the land (as this will not necessarily take place until later) and the compensation must be reduced by the prescribed amount calculated under section 45(7).

69.5.8 Recovery of compensation previously paid

The recording of the payment of compensation under section 110 of the P&E Act is also important because, if the planning scheme is amended to remove the reservation or the planning scheme amendment which proposed to reserve the land lapses or a declaration of proposed reservation under section 113 of the P&E Act is cancelled, the person who paid compensation may recover the amount of compensation from the present owner of the land in accordance with the provisions of section 111 of the P&E Act.

70 LAND MONITORING - PURCHASE, COMPULSORY ACQUISITION AND SALE POLICY

70.1 General

In addition to legislative obligations in relation to the acquisition or disposition of land generally set out in the Water Act, and the Land Acquisition and Compensation Act 1986 (otherwise detailed in this Manual), the State Government through the Department of Infrastructure and Transport and the Government Land Monitor has procedures in place which set additional constraints on the acquisition and disposition of land by public authorities (other than municipal Councils). What is set out in this Manual is a summary of the Government of Victoria Policy and Instructions for the Purchase, Compulsory Acquisition and Sale of Land. The most current version of the Policy was updated in August 2000 (this is still the current version as at October 2012). However, care should be taken that the most up to date version of the instructions is relied upon.

70.2 Application

70.2.1 Any disposition or acquisition of land requires approval of the Government Land Monitor where the consideration (ie, the price) is $250,000 or more.



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70.2.2 If individual transactions are less than $250,000. If those transactions are part of a group that total more than $250,000, approval is required.

70.2.3 In general terms, the task of the Government Land Monitor is to ensure an appropriate price is obtained or paid in the transaction, and that the transaction is otherwise in the public interest.

70.3 General controls

General controls arising out of the guidelines include:

70.3.1 there must be no unconditional commitment or agreement to buy or sell before approval for a transaction is obtained from the Government Land Monitor;

70.3.2 requirement for valuations (one under $500,000, two over $500,000);

70.3.3 constraints on when valuation conferences can be obtained; and

70.3.4 the submission of certain forms to the Government Land Monitor.

70.4 General matters

Water Corporations should (if they have not already) establish an appropriate procedure to comply with this Government Policy.

71 LANDLORD AND TENANT LEGISLATION

71.1 General

71.1.1 There is a great deal of Commonwealth and State legislation which impacts on the relationship between landlord and tenant. The various Acts are set out below. However, in general there are four basic features of a lease as follows:

(a) a tenant holds an estate in the land during the lease term;

(b) a lease is a contract;

(c) a lease involves the supply of services; and

(d) a lease is subject to a range of statutory controls.

71.1.2 In respect of the first, this means that the tenant has an asset and a legal right to exclusive possession, which can be protected against the landlord and others. Whether or not there is a legal right to exclusive possession which gives a leasehold estate to the tenant, is determined from all of the circumstances surrounding the transaction between the landlord and tenant.

71.1.3 It is important to distinguish a lease from a licence. Mere words (eg, "lease" or "licence") in the document are not conclusive.



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71.2 Licences

71.2.1 Differences between leases and licences:

(a) a lease gives exclusive possession and a licence does not;

(b) a lease grants an interest in the land, a licence grants a contractual right only;

(c) a landlord may commit a trespass by entry but a licensor will not;

(d) a lease may confer a registrable interest, a licence does not;

(e) a lease is transferable, a licence generally is not;

(f) a licence need not be in writing; and

(g) certain statutory relief is available to tenants.

71.2.2 It is therefore important when negotiating agreements for occupancy to keep in mind and recognise the differences between a lease and a licence.

71.3 Checklist

This is a list of some of the issues which need to be considered when negotiating a lease.

71.3.1 Who is the landlord? This is normally established by a title search.

71.3.2 Who is the tenant? Is it a company or an individual?

71.3.3 If the tenant is a company, are the directors or others to provide personal guarantees?

71.3.4 Is the land mortgaged? If so, the mortgagee's written consent to the lease should be obtained.

71.3.5 Are the premises properly defined? - eg, are they part of a building or complex or "stand alone"?

71.3.6 Are there lease incentives? If so, how are they treated for income tax purposes?

71.3.7 What is the term of the lease?

71.3.8 Is the rent properly stated and is there provision for adjustment and in what form? eg, market review, CPI adjustment, fixed amount increase or fixed percentage increase.

71.3.9 Is the permitted use correctly expressed and is it allowed under Council planning schemes? Is a planning permit required?

71.3.10 What are the tenant’s obligations regarding repair? Does the landlord have an obligation to maintain and repair structural items?



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71.3.11 Can the lease be transferred by the tenant and under what conditions?

71.3.12 Are there proper release and indemnity clauses, excluding loss and damage due to the negligence of the landlord?

71.3.13 Is the tenant to pay rates, taxes and other outgoings?

71.3.14 What insurance is the tenant to obtain?

71.3.15 What happens if the premises are damaged or destroyed? Do rent and outgoings abate or can either party walk away from the lease?

71.3.16 In what circumstances does the landlord have the right to terminate the lease?

71.3.17 Who pays the costs associated with preparation of the lease?

71.3.18 Is there any security deposit to be paid by the tenant? Is the tenant to provide a bank guarantee and/or personal guarantees?

71.3.19 Are there any works to be done by either party before the lease commences? In other words, is the lease in fact an agreement for lease?

71.3.20 Can the parties properly identify fixtures and fittings? What are the landlord’s fixtures and what are the tenant's fixtures and fittings?

71.3.21 Is the tenant to be granted any option to renew the lease?

71.3.22 Are there to be any special provisions which override the general provisions of the lease?

71.4 Retail Leases Act

71.4.1 Objectives

The objectives of the Retail Leases Act 2003 (“RL Act”) are to enhance:

(a) the certainty and fairness of retail leasing arrangements between landlords and tenants; and

(b) the mechanisms available to resolve disputes concerning leases of retail premises.

71.4.2 Scope of the RL Act

(a) The RL Act applies to all leases of retail premises which are entered into on or after 1 May 2003, including leases pursuant to an option.

(b) Every lease that provides for occupation of retail premises in Victoria is subject to the RL Act.



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71.4.3 Definitions

(a) "Lease" is defined as a lease, sub-lease, or an agreement for a lease or sub-lease, whether or not in writing (section 3). The RL Act does not apply to a lease for a term of less than 1 year, but if the tenant remains in continuous possession for 1 year or more (eg, as a result of holding over) the RL Act will start to apply (section 12).

(b) "Retail premises" are defined as premises (except those areas intended for use as a residence) that under the terms of the lease are used, or are to be used, wholly or predominantly for the sale or hire of goods by retail or the retail provision of services (or a business specified by the Minister to be a business to which the RL Act applies) (section 4).

71.4.4 Exemptions from the RL Act

(a) The RL Act does not apply to leases of retail premises in respect of which the occupancy costs under the lease concerned are more than the amount prescribed by the Retail Leases Regulations 2003 (“RL Regs”) (currently $1,000,000).

(b) The RL Act does not apply to leases of retail premises that are used wholly or predominantly for the carrying on of a business by a tenant on behalf of the landlord as the landlord's employee or agent.

(c) The RL Act does not apply to leases where the tenant is a listed company or subsidiary of a listed company.

(d) The RL Act does not apply to leases of retail premises, used for the retail provision of services, which are situated above the third storey of a building or in a shopping centre. Whether a retail premises is located above the third storey of a building depends on the configuration of the building. Guidelines on how to determine whether a retail premises are situated above the third storey are set out in the “What are retail premises” Guidelines published by the Office of the Small Business Commissioner. A copy of the guidelines can be downloaded from the website www.sbc.vic.gov.au.

(e) The RL Act does not apply to leases of retail premises for terms of 15 years or longer (excluding options for renewal) which contain a provision requiring the tenant to carry out or pay the cost of substantial work at the premises or preventing the tenant removing the items when the lease ends.

(f) The RL Act does not apply to leases of premises by a local council for public or municipal purposes, charitable purposes, the residence of or training of ministers of religion, a club for the purposes of the RSL other memorial to people who served in the First or Second World War, or in any other war or hostilities referred to in the Patriotic Funds Act 1958 (now the Veterans Act

http://www.sbc.vic.gov.au/



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2005) or for the purposes of the Air Force Association or the Australian Legion of Ex-Servicemen and Women (Victorian Branch). Further, it does not apply to leases of premises by a local council to a not-for-profit organisation under which the premises are used wholly or predominantly for the purpose of providing or promoting community, cultural, sporting, recreational or similar facilities or activities.

(g) The Minister may determine businesses or premises to which the RL Act does not apply.

71.4.5 Restrictions – rent review

(a) Section 35 of the RL Act provides that the basis on which a rent review is to be made must be one of:

(1) a fixed percentage;

(2) an independently published index of prices or wages (eg, CPI);

(3) a fixed annual amount;

(4) the current market rent; or

(5) another basis or formula prescribed by the RL Regs.

(b) Particular care needs to be taken in drafting new leases to ensure compliance with these requirements. Combined formulas of rent review will be void and, in the absence of agreement between the landlord and the tenant as to the amount of rent, the market rent will then be decided by an independent valuer.

71.4.6 Assignment and sub-letting

(a) A landlord is only entitled to withhold consent to the assignment of a retail premises lease if:

(1) there is a change in the permitted use;

(2) the landlord considers that the proposed assignee does not have sufficient financial resources or business experience to meet lease obligations;

(3) the tenant has not complied with reasonable assignment provisions in the lease; or

(4) the tenant has not provided financial records to the proposed assignee.

(b) A request for the landlord's consent to an assignment of the lease must be in writing and the tenant must provide the landlord with information reasonably required by the landlord about the financial



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resources and business experience of the proposed assignee (section 61 RL Act).

(c) The landlord must deal expeditiously with a request for consent and is taken to have consented to the assignment if the tenant has complied with the Act and the landlord has not, within 28 days after the request for consent was made, given written notice to the tenant consenting or withholding consent (section 61(6) RL Act).

71.4.7 Statutory minimum term

(a) The term of a retail premises lease must be at least 5 years (which can include any option periods) (section 21(1) RL Act).

(b) If the term remaining under any head lease under which the landlord holds the retail premises is 5 years or less, the length of any sub-lease is the length of that remaining term less one day (section 21 RL Act).

(c) A retail premises lease for a term of less than 5 years is not illegal, invalid or unenforceable. Rather, the term of the lease will be automatically extended to a period of 5 years despite the written terms of lease. For example, if a lease is entered into for a term of 3 years, its term will be extended by 2 years to 5 years.

(d) The tenant can waive its right to a 5 year term if it obtains a certificate from the Small Business Commissioner and provides the certificate to the landlord (section 21(5) RL Act).

71.4.8 Renewal of a retail premises lease

(a) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the landlord must notify the tenant in writing of the date after which the option is no longer exercisable at least 6 months and no more than 12 months before that date but is not required to do so if the tenant exercises, or purports to exercise, the option before being notified of the date (section 28 RL Act).

(b) The only circumstances in which an option is not exercisable is if the tenant has not remedied any default under the lease about which the landlord has given the tenant written notice or if the tenant has persistently defaulted under the lease throughout the term and the landlord has given the tenant written notice of the defaults (section 27 RL Act).

71.4.9 Information brochures

As soon as negotiations commence, the landlord must give a prospective tenant a copy of the proposed or draft lease in writing (the parties’ details and commercial terms need not be included) and a copy of the information brochure about retail premises leases published by the Small Business Commissioner (section 15 RL Act). If the landlord



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fails to provide these two documents, they may be subject to a penalty of 50 penalty units.

71.4.10 Disclosure statements

(a) In respect of a new lease, at least 7 days before entering into a retail premises lease, the landlord must give the tenant a disclosure statement in the form prescribed by the regulations and a copy of the proposed lease in writing (which includes details of the parties and commercial terms negotiated) (section 17(1) RL Act). If the landlord fails to give the tenant a disclosure statement, the tenant may withhold payment of rent until the disclosure statement is provided or the tenant may terminate the lease but only within 7 days after receiving the disclosure statement from the landlord (section 17(3) RL Act).

(b) In respect of a renewal of lease, the landlord must provide the tenant with a disclosure statement at least 21 days before the end of the current term (section 26(1a) RL Act). The form of disclosure statement on renewal is the same as for a new lease, but it must include information that is current from a specified date that is within 3 months before the statement is given. If a disclosure statement is not provided in accordance with the Act, the tenant is able to exercise the same rights as given to a tenant under a new lease.

(c) If any information provided by the landlord in the disclosure statement is misleading, false or materially incomplete, or the tenant is not given a copy of the proposed lease in accordance with section 17(1), the tenant may give the landlord a written notice of termination (section 17(5) RL Act).

(d) Key money and goodwill payments are prohibited (section 23 RL Act).

71.4.11 Dispute resolution

(a) The dispute resolution procedures in the RL Act also apply to disputes arising under the Retail Tenancies Reform Act 1998 or the Retail Tenancies Act 1986 or arising under a lease that provides for the occupation of retail premises in Victoria to which none of the retail tenancy legislation applies (section 81 RL Act). The RL Act requires that any legal proceedings in respect of a retail premises lease dispute (other than for an injunction) must be preceded by a mediation or another form of alternative dispute resolution. The Small Business Commissioner must certify in writing that mediation has failed, or is unlikely to resolve the dispute, before a party can commence proceedings before VCAT (section 87 RL Act).

(b) There are additional provisions regulating refurbishment, demolition and relocation and compensation payable to tenants in the event of disruption.



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(c) A landlord is required to maintain the structure of the premises and the landlord’s fixtures, plant and equipment in a condition consistent with the condition of the premises when the lease was entered into (section 52 RL Act).

(d) The RL Act renders void a provision in a lease requiring the tenant to pay capital costs in respect of the premises, but it does not render void a provision in the lease which sets out an obligation on the tenant to undertake capital works at its own cost (section 41 RL Act).

(e) A tenant is not responsible for the landlord's legal and other expenses in relation to the negotiation, preparation and execution of the lease nor for any costs associated with the landlord obtaining a mortgagee’s consent to the lease (section 51 RL Act).

(f) Special provisions apply to retail shopping centres (see Part 8 RL Act).

71.5 Landlord and Tenant Act 1958

71.5.1 The Landlord and Tenant Act 1958 (“LT Act”) was repealed on 1 September 2012 by section 236 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

71.5.2 Part IVA relates to the removal and disposal of goods left on vacated premises. Part IVA of the LT Act continues to apply at the end or other determination of a lease of premises to which that part applied immediately before 1 September 2012.

71.5.3 Part V of the LT Act continues to apply to a lease of premises to which that Part applied, immediately before 1 September 2012 for so long as those premises remain prescribed premises. The intent is that leased property under the LT Act is to transfer to the Residential Tenancies Act 1997.

71.6 Property Law Act 1958

The Property Law Act 1958 (“PL Act”) includes a section covering various miscellaneous matters regarding leases and tenancies including the following:

71.6.1 application to the Court in respect of claims for damages arising under a lease (section 137 PL Act);

71.6.2 the effect of licences granted to tenants (section 143 PL Act);

71.6.3 notice and period of notice which must be given to tenants where there is a right of re-entry or forfeiture by the landlord and the right of a tenant to seek relief by applying to the Court (section 146 PL Act);

71.6.4 landlord’s consent to an assignment of lease and the inability of landlords to require a fine or sum of money to be paid on an assignment of lease (section 144 PL Act);



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71.6.5 the conversion of long term leases into fee simple estates (section 153 PL Act); and

71.6.6 the surrender of a lease without prejudice to sub leases (section 150 PL Act).

71.7 Transfer of Land Act 1958

The Transfer of Land Act 1958 (“TL Act”) incorporates provisions regarding leases, including in respect of the following matters:

71.7.1 This Act allows for the registration of leases exceeding a term of 3 years at the Land Registry (section 66 TL Act). It is not however usual to register leases in Victoria because section 42(2)(e) of this Act provides that any registered interest will be subject to the interest of a tenant in possession of the land.

71.7.2 The surrender and sub-letting of registered leases.

71.7.3 Section 67 of this Act implies certain covenants in leases including:

(a) The tenant’s obligation to pay rent, rates and taxes.

(b) The landlord’s obligation to keep the premises in good repair.

(c) The landlord may once in every year enter to view the state of repair of the premises.

(d) If rent is unpaid for 1 month the landlord may re-enter the premises (section 67 TL Act).

71.8 Residential Tenancies Act 1997

The Residential Tenancies Act 1997 (“RT Act”) defines the rights and duties of landlords and tenants in certain rented residential premises, rooming houses and caravan parks and is intended to provide for the inexpensive and quick resolution of residential tenancy disputes.

71.8.1 The RT Act covers an agreement, whether or not in writing, under which a person lets premises as a residence.

71.8.2 Certain categories of tenancy are excluded including farms, tenancies arising under a contract of employment, holiday premises and hotel or motel premises.

71.8.3 The RT Act contains detailed provisions for the termination of residential tenancies and evictions.

71.8.4 The RT Act contains provisions regarding security deposits, the form of tenancy agreement, the rights and duties of landlords and tenants and the powers of VCAT to hear and determine disputes.



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PART 6 - FLORA AND FAUNA

72 FLORA & FAUNA GUARANTEE ACT 1988

72.1 General

72.1.1 Flora and fauna in Victoria are primarily protected under the Flora and Fauna Guarantee Act 1988 (“FFG Act”), the Wildlife Act 1975, the Fisheries Act 1995, the Reference Areas Act 1978 and the Domestic Animals Act 1994. Under certain circumstances, the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 could apply and some taxa and areas might be afforded protection by virtue of the Commonwealth Government being signatory to international treaties.

72.1.2 The purpose of the FFG Act is to establish a legal and administrative structure to enable and promote the conservation of Victoria's native flora and fauna and to provide for a choice of procedures which can be used for the conservation, management or control of flora and fauna and the management of potentially threatening processes.

72.2 Definitions

72.2.1 The term “fauna” is defined in the FFG Act to mean any animal life which is indigenous to Victoria, whether vertebrate or invertebrate and in any state of biological development and includes fish and any other living things generally classified as fauna, but it does not include humans.

72.2.2 The term “flora” means any plant life which is indigenous to Victoria, whether vascular or non-vascular and any stage of biological development and includes any other living thing generally classified as flora.

72.2.3 The term “land” is defined to include:

(a) buildings and other structures permanently fixed to the land;

(b) land covered with water;

(c) any estate, interest, easement, servitude, privilege or right in or over land.

72.2.4 The term “landholder” is defined to include:

(a) in relation to land which has been alienated from the Crown and is under the operation of the Transfer of Land Act 1958 (other than land in an identified folio under that Act), the person who is registered as a proprietor, or the persons who are registered as the proprietors, of an estate in fee simple in the land;

(b) in relation to land which has been alienated from the Crown and is land in an identified folio under the Transfer of Land Act 1958 or land not under the operation of the Transfer of Land Act 1958,



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means the person who is the owner or the persons who are the owners of the fee or equity of redemption;

(c) in relation to Crown land which is occupied under a lease, licence or other right, means the occupier under the lease, licence or right;

(d) in relation to Crown land which is managed or controlled by a public authority, means that the public authority or Minister that manages or controls the land; and

(e) in relation to land, whether or not alienated by the Crown, means the person who, whether alone or with others, is in occupation or possession, or has the management or control, of land, and includes the agent of such a person.

72.3 Objectives

The objectives of the FFG Act are:

72.3.1 to guarantee that all species of Victoria's flora and fauna, other than human disease organisms, can survive, flourish and retain their potential for evolutionary development in the wild;

72.3.2 to conserve Victoria's communities of flora and fauna;

72.3.3 to manage potentially threatening processes;

72.3.4 to ensure that any use of flora or fauna by humans is sustainable;

72.3.5 to ensure that the genetic diversity of flora and fauna is maintained;

72.3.6 to provide programs –

(a) of community education in the conservation of flora and fauna;

(b) to encourage cooperative management of flora and fauna through, amongst other things, the entering into of land management cooperative agreements under the Conservation, Forests and Land Act 1987;

(c) of assisting and giving incentives to people, including landholders, to enable flora and fauna to be conserved; and

72.3.7 to encourage the conserving of flora and fauna through cooperative community endeavours.

72.4 Binding on Crown and statutory authorities

Water Corporations are bound by the FFG Act. The FFG Act further states that a public authority "must be administered so as to have regard to the flora and fauna conservation and management objectives" (section 4(2) FFG Act).



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72.5 Listing - what the FFG Act provides

72.5.1 Endangered species of flora or fauna to become listed species through a system of committees and ministerial recommendations.

72.5.2 Schedule 2 of the FFG Act contains a list of species and communities of flora and fauna which are threatened.

72.5.3 Schedule 3 of the FFG Act contains a list of potentially threatening processes that corporations and persons must ensure they do not carry out.

72.5.4 A register of threatened and listed flora, listed fauna and threatening processes is kept by the DSE and regularly updated. A copy of this register should be obtained and updated.

72.5.5 A species or community of flora or fauna is eligible to be listed if it is in a demonstrable state of decline, which is likely to result in extinction or if it is significantly prone to future threats which are likely to result in extinction. A prescribed committee, made up of primarily experts on fauna and flora, is able to recommend particular species to be protected. However, it is the Minister that has the final say with regard to this.

72.6 Action statements

72.6.1 The Secretary to the DSE must prepare an action statement for any species or community of flora or fauna or potentially threatening process listed as soon as possible after that species, community or process is listed under the Act. Action statements must set out what has been done and may include information on what needs to be done. Copies of all action statements can be obtained and new action statements can be added as they are released.

72.6.2 Once a species or community of flora or fauna has been listed, an action statement must be prepared. This statement must set out what has been done to conserve and manage that species or community and further what is intended to be done in the future. Further, a critical habitat may need to be determined for any species or community of flora or fauna. Once it has been determined it must be advertised in a newspaper circulating generally throughout the State and the Ministers for planning, environment, minerals, extractive industries and land conservation must be notified of the critical habitat.

72.6.3 A register of threatened and listed flora, listed fauna, and threatening processes is kept by the DSE and regularly updated. A copy of this register can be obtained from the DSE.

72.7 Management plan

A management plan for flora and fauna may need to be determined. Once a management plan has been made, notice will need to be given to the landholder of any land or manager of any water that is likely to be directly affected by this plan and such a person must then abide by the management plan. A management plan must contain the following:



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72.7.1 the species or community of flora or fauna or potentially threatening process to which it applies;

72.7.2 in relation to the flora or fauna conservation and management objectives:

(a) the way in which those objectives are to be implemented or promoted for the benefit of that species or community or the management of that process; and

(b) the method by which progress towards achieving those objectives can be assessed;

72.7.3 the nature conservation and the social and economic consequences of the plan; and

72.7.4 the date by which the management plans should be subject to review.

72.8 Public authority management agreements

There is potential for a management agreement to be entered into, with one or more public authorities, to provide for the management of any species or community of flora or fauna or potentially threatening process. If such agreement is entered into, it needs to be published in the Victoria Government Gazette and the agreement must not come into force before the notice is published. Such an agreement must set out its purposes and aims, the duties and areas of responsibility of the parties and the date on which it begins and (if necessary) ends. Any agreement may be changed or terminated by mutual agreement between the parties or according to the terms of the agreement.

72.9 Interim Conservation Orders

72.9.1 The Minister may in writing make an Interim Conservation Order (“ICO”) to conserve:

(a) the critical habitat of a listed species or community of flora or fauna on Crown land or in water under the control of the Crown;

(b) the critical habitat of a species or community of flora or fauna which has been nominated for listing which is on Crown land or in water under the control of the Crown;

(c) the critical habitat of a listed species of flora or fauna on private land or in water under private control; and

(d) the critical habitat of a species of flora or fauna which has been nominated for listing which is on private land or in water under private control.

72.9.2 In making an ICO, the relevant Minister must consider:

(a) any nature conservation matters;



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(b) any social and economic consequences of making the order; and

(c) any other relevant matters.

72.9.3 An ICO has effect from the day on which it is made.

72.9.4 An ICO may provide for all or any of the following:

(a) the conservation protection or management of flora, fauna, land or water within the critical habitat which is the subject of the ICO;

(b) the prohibition or regulation of any activity or process which takes place on the land or in relation to the water or the use, management or development of the land or water within the critical habitat which is the subject of the ICO;

(c) the prohibition, regulation or management of any activity or process which takes place outside the critical habitat which is the subject of the ICO but which is likely to adversely affect the critical habitat; and

(d) a requirement to undertake works or activities specified in the ICO.

72.9.5 Upon the day on which the ICO is made, notice must be given to the person in possession of any land and the water manager of any water within the critical habitat which is the subject of the ICO, and as soon as is possible this ICO must be published in the Victoria Government Gazette and in a newspaper circulating generally throughout the State and in a newspaper circulating generally in the area to which the order applies. The notice must:

(a) be given in accordance with Flora and Fauna Guarantee Regulations 2011 (“FFG Regs”); and

(b) state the date by which submissions must be made to the Secretary, which must be at least 30 days after the date on which the notice is published.

72.9.6 An ICO ceases to operate at the end of 2 years from the date on which it is confirmed by the Minister or at any earlier date decided on by the Minister or stated in the order.

72.9.7 Where there is any conflict between an ICO and a planning scheme, the ICO prevails over the planning scheme.

72.9.8 A landholder or water manager is entitled to compensation for financial loss suffered as a natural, direct and reasonable consequence of the making of an ICO. An application must be made according to the FFG Act and in writing in the prescribed form.

72.10 The handling of flora

72.10.1 A reference to flora includes a reference to flora which is not indigenous to Victoria and includes a reference to flora in any form, including the



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whole organism or any part or product, whether alive or dead or however processed.

72.10.2 No authority, corporation or person must take, trade in, keep, move or process protected flora without a licence or permit, unless authorised by order of the Governor in Council published in the Victoria Government Gazette. Protected flora are listed in Schedule 2 of the FFG Act.

72.10.3 Exceptions apply to the law against interfering with protected flora. These include:

(a) accidentally taking flora and having exercised reasonable care not to take that flora;

(b) taking protected flora from private land that is not a critical habitat of the flora, and the flora was not taken for the purposes of sale or sold or offered for sale; and

(c) taking flora from private land, which is part of the critical habitat of the flora, where it is the owner of the land or person who has been granted a lease by the owner of the land from which that flora is taken, and where they have not taken that flora for the purposes of sale, or sold or offered for sale.

72.10.4 The Secretary may issue a licence or permit to take, trade in, keep, move or process protected flora. The Secretary must not authorise, permit or licence if in its opinion to do so would threaten the conservation of the species or community of which the flora is a member or part.

72.10.5 The Governor in Council may, by order, publish in the Government Gazette the taking, trading in, keeping moving or processing of protected flora, subject to the terms and conditions fixed by the Governor in Council. The Governor in Council may not make an order if he or she is of the opinion that to do so would threaten the conservation of species or community of which the flora is a member or part.

72.11 Handling of fish

72.11.1 A person, authority or corporation must not take, trade in or keep any fish which is a member of a listed species or community without a licence unless authorised by order of the Governor in Council published in the Victoria Government Gazette. A defence to this prohibition applies for accidentally taking the fish, having exercised reasonable care not to take that fish and having returned the fish in a viable condition to the wild.

72.11.2 A licence authorised under the Fisheries Act 1995 does not authorise the holder to take, trade in or keep fish in circumstances in which the taking, trading or keeping of fish is prohibited.

72.11.3 The Secretary may issue a licence to take, trade in or keep fish which are members of a listed species or community of fauna.



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72.11.4 The Governor in Council may, by order published in the Victoria Government Gazette, authorise the taking, trading in, or keeping of any fish which are members of a listed species or community of fauna, subject to the terms and conditions fixed in the order.

72.12 Other offences

Minor offences exist for interfering with any mark attached to flora or fauna for the purposes of the FFG Act, or any notice or mark erected in accordance with the FFG Act.

72.13 Enforcement

72.13.1 Under the FFG Act there are wide powers granted to enforcement officers. They may, for the purposes of upholding the FFG Act:

(a) at any reasonable time, by any reasonable means and with the assistance which the authorised officer requires, enter land or buildings not occupied as places of residence or vehicles;

(b) search any land or buildings not occupied as places of residence or vehicles;

(c) with a warrant, search any building occupied as a place of residence;

(d) inspect equipment, machinery, implements, plants, animals, enclosures or other goods;

(e) require a moving vehicle to be stopped;

(f) ask questions;

(g) seize, examine or take copies of, or extracts from documents;

(h) without payment, take or require a person who is a landholder of the land to give to the authorised officer, samples of substances or articles in respect of which the officer suspects there has been a contravention under the FFG Act;

(i) require a person to produce a document which the officer believes on reasonable grounds relates to, or may contain evidence of, an offence under the FFG Act or the FFG Regs;

(j) require the person having custody of any municipal rate book or record to produce it to the officer, who may inspect the rate book or record the name or address of a landholder or water manager and to take extracts from the rate book or record;

(k) having first given notice to the owner and to the person in possession of the land, enter land and construct or erect or maintain markers or equipment on that land;



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(l) having first given notice to the owner and to the person in possession of the land, enter land and carry out scientific studies; and

(m) request a person to give his/her name and place of residence.

72.13.2 A person must not wilfully assault, obstruct, threaten, or intimidate an authorised officer who is exercising his or her powers under the FFG Act. If a person obstructs an authorised officer in the course of his or her employment, their employer may be liable for a penalty.

72.13.3 If found guilty of an offence under the FFG Act, the person or organisation may be required to carry out restoration work or alternatively be ordered to pay compensation to the Secretary.

73 WILDLIFE ACT 1975

73.1 Introduction

The Wildlife Act 1975 is designed to allow for protection and conservation of wildlife and wildlife environments. The Wildlife Act covers areas such as: State wildlife reserves, research, dealing with noxious wildlife, offences (such as taking endangered wildlife), enforcement procedures, as well as wildlife parks, zoos and the protection of whales.

73.2 Definitions

73.2.1 The term “wildlife” is defined to mean:

(a) any animal of a vertebrate taxon, other than mankind, which is indigenous to the whole or part or parts of Australia or its territories or territorial waters, whether or not is occurs elsewhere;

(b) all kinds of deer, non-indigenous quail, pheasants, and partridges and any other taxon of animal the Governor in Council, by order published in the Victoria Government Gazette, declares to be wildlife for the purposes of the Wildlife Act;

(c) any taxon of terrestrial invertebrate animal which is listed under the Flora and Fauna Guarantee Act 1988; and

(d) any hybrids of a kind or taxon of animal specified above.

73.2.2 For the purposes of the Wildlife Act, the term "wild" in relation to any wildlife means the natural habitat of that wildlife or an independent, unpossessed or natural state and not an intentionally domesticated or captive state, regardless of the location.

73.2.3 The term "game" means any kind of wildlife declared by the Governor in Council, by order published in the Victoria Government Gazette, to be game for the purposes of the Wildlife Act.



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73.3 Offences

The Wildlife Act makes it an offence to destroy wildlife without the written permission of the Secretary. It is also an offence to take and sell or keep wildlife without the written permission of the relevant Minister. Further, the taking of any wildlife species' eggs, or destruction of these eggs in any way, is prohibited unless written permission from the Secretary is obtained.

73.4 Licences

Under Part III of the Wildlife Act, the Secretary may issue "wildlife licences" (to take or destroy wildlife, and buy, sell, acquire, receive, dispose of, keep, possess, control, breed, process or display wildlife) and "game licences" (to hunt, take or destroy game).

73.5 Authorisation

73.5.1 Under Part IIIA of the Wildlife Act, the Secretary may authorise a person in writing to:

(a) hunt, take or destroy wildlife; and

(b) buy, sell, acquire, receive, dispose of, keep, possess, control, breed, process, display, take samples from or experiment on wildlife.

If the Secretary is satisfied that the authorisation is necessary:

(c) because wildlife is damaging any building, vineyard, orchard, crop, tree, pasture, habitat or other property owned, occupied or administered by the person to whom the authorisation is to be issued, or property adjacent to or in proximity to such property;

(d) for purposes of the management, conservation, protection or control of wildlife for education about wildlife, research into wildlife or scientific or other study of wildlife;

(e) for Aboriginal cultural purposes;

(f) for the purposes of enabling the care, treatment or rehabilitation of sick, injured or orphaned wildlife;

(g) for the purposes of ensuring the health or safety of any person or class of persons;

(h) to support a recognised wildlife management plan; or

(i) to make provision for the custody, care and management of wildlife, held under another authorisation or a licence which has been suspended, during the period of that suspension.

73.5.2 Actions must be carried out in the manner specified in the authorisation, by the people specified in the authorisation and subject to the conditions



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of the authorisation, or an offence is committed (section 28B Wildlife Act).

73.6 Declarations

Whenever it appears to the Minister that a taxon or kind of protected wildlife is causing injury or damage to:

73.6.1 any building, vineyard, orchard, garden or other property;

73.6.2 any crop, grass, trees or other vegetation; and

73.6.3 any taxon or kind of animal (including fish),

in an area of Victoria, the Governor in Council may, upon the recommendation of the Minister by an order published in the Victoria Government Gazette, declare that taxon or kind of wildlife to be unprotected wildlife in the area and for the period specified therein.

73.7 Gifts/bequests

Under the Wildlife Act, gifts of land and personal property, including money, can be accepted for the provision of wildlife reserves and nature reserves (sections 12 and 13 Wildlife Act).

73.8 Mining

Once an area has been declared a wildlife reserve or nature reserve, mining in any form on that land can only take place with the written permission of the relevant Minister (section 19 Wildlife Act).

73.9 Research and management

73.9.1 By Part IV of the Wildlife Act, subject to the direction and control of the Minister, the Secretary shall carry out, or cause to be carried out, investigations, field studies, and scientific or biological research for the purpose of conserving and propagating wildlife or improving, conserving, or maintaining wildlife habitat and in particular, without in any way limiting the generality of the foregoing, the Secretary may carry out or cause to be carried out:

(a) surveys of wildlife populations and wildlife habitats;

(b) investigations concerning the possible effects and influence on wildlife and wildlife habitat of any existing or proposed river improvement work, drainage projects, water conservation projects, re-afforestation projects and any other project which may affect wildlife or wildlife habitat;

(c) banding or marking of wildlife;

(d) collection of wildlife for examination and study;

(e) management of wildlife or wildlife habitat;



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(f) works for the improvement or preservation of wildlife habitat;

(g) such public education programs as considered necessary for promoting and maintaining and appreciation of the value of wildlife;

(h) scientific or biological research, studies, or investigations in conjunction with other scientific organisations;

(i) economic studies and investigations with respect to the raising, keeping, and rearing of any species of wildlife for commercial purposes;

(j) removal of wildlife from any particular locality; and

(k) any act or operation for the conservation of wildlife and improvement of wildlife habitat.

73.9.2 It is important to note that it is only with the direction and control of the relevant Minister that such research and management tasks can be carried out.

73.9.3 Under section 33 of the Wildlife Act there is power for the Governor in Council to declare the habitat of any taxon of wildlife existing on any lands of the Crown, to be a prohibited area during any period or periods of the year specified in the order. Before any such declaration is made, the relevant Minister must consult with the Minister administrating the Water Act and cause the declaration to be published in the Victoria Government Gazette. Additionally, such declaration must be published in local area newspapers and the like. Any person or persons who knowingly enters onto or takes a vehicle or boat into or upon a prohibited area without first obtaining the authority in writing of the Secretary, shall be guilty of an offence against the Wildlife Act.

73.10 Wildlife sanctuary

73.10.1 The Governor in Council may, by order published in the Victoria Government Gazette, declare any area of land or water or of land and water (whether inland waters or coastal waters) to be a wildlife sanctuary for the purposes of the Wildlife Act.

73.10.2 An order shall not be made in respect of any private land unless the owner or occupier thereof has first applied to the Minister, in writing, for such land to be declared a wildlife sanctuary, or in respect of any lands of the Crown, the Minister administering the Act and in either case, the Minister has caused to be published in some newspaper circulating generally in the locality, not less than 1 month’s notice of intention to make the order.

73.10.3 Any dispute arising with respect to a proposal for a wildlife sanctuary shall be determined by the Governor in Council, whose decision thereon shall be final.

73.10.4 The Secretary shall cause notices to be erected on or near the principal roads having access to wildlife sanctuaries advising persons using the



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road that they are entering or passing or are adjacent to (as the case requires) a wildlife sanctuary.

73.10.5 Any person who takes or destroys wildlife in or upon a sanctuary shall be guilty of an offence.

73.11 Offences

The Wildlife Act contains a number of offences (contained in Part VII of the Act), which include the following:

73.11.1 A person must not hunt, take or destroy endangered wildlife, notable wildlife or other protected wildlife.

73.11.2 During the close season for hunting a particular species of game, a person must not hunt, take or destroy game of that species.

73.11.3 A person must not buy, sell, acquire, receive, dispose of, keep, possess, control, breed, process, display, take samples from or experiment on endangered wildlife, notable wildlife or protected wildlife without a permit or authorisation.

73.11.4 A person must not have wildlife in his or her possession or control if that wildlife has been taken, destroyed, acquired, received, bought, sold, disposed of, kept, possessed, controlled, bred, processed or displayed in contravention of the Act or any corresponding law of another State or the Commonwealth.

73.11.5 The owner of a dog or cat which rushes at, attacks, bites, worries or chases wildlife while at large on public land will be guilty of an offence.

73.11.6 A person must not import or export wildlife from or to another State or territory of the Commonwealth without a permit. The procedure for obtaining such permits is set out in section 50 of the Wildlife Act.

73.11.7 A person must not mark protected wildlife by means of a ring, band, dye, or other means whatsoever without the authority of the Secretary.

73.11.8 No person shall release wildlife from captivity without consent from the Secretary.

73.11.9 No person shall have in their possession any snare, trap, net or gun in, on or adjacent to any lake, swamp, marsh, sanctuary or State Wildlife Reserve without the consent of the Secretary.

73.11.10 A person must not kill, destroy, take or injure wildlife by any bait impregnated with poison or any substance, whether liquid, solid, or gaseous, which is prescribed to be a poison or lay any poison substance with the intent to kill, destroy, take or injure wildlife.

73.11.11 A person must not, without authority in writing of the Secretary, use any glue, adhesive material, bird-lime or any similar viscid substance for, or in connection with, the taking or restraining of wildlife.



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73.11.12 No person shall use a punt gun in hunting or taking wildlife or have a punt gun in his or her possession in upon or adjacent to any lake, marsh, swamp or waters recognised as a wildlife habitat or in a boat or vehicle in upon or adjacent thereto.

73.11.13 A person must not remove, obliterate, damage, obscure, alter or otherwise interfere with:

(a) any mark, sign or device attached to wildlife for the purposes of this Act so as to prevent its use for the purposes of the Wildlife Act;

(b) any equipment, trap or net being used in any scientific study or investigation under the Wildlife Act; or

(c) any notice erected for the purposes of the Wildlife Act.

73.11.14 A person must not wilfully molest or injure protected wildlife, or wilfully cause protected wildlife to be molested or injured, or wilfully disturb, chase or herd protected wildlife, or wilfully cause protected wildlife to be disturbed, chased or herded, or wilfully separate protected wildlife from its young, or cause it to be so separated.

73.12 Enforcement

73.12.1 An authorised officer may, at any reasonable time, having regard to all the circumstances, and with such persons as he or she thinks necessary, enter upon any land or waters or into any tent, or into any building or structure other than a dwelling-house or upon any vehicle or boat, and:

(a) search the lands, waters, tent, building or structure and anything found at the land, waters, tent, building or structure;

(b) inspect and take photographs (including video recordings) of the lands, waters, tent, building or structure or anything found at the land, waters, tent, building or structure;

(c) with whatever assistance is required, take and keep samples of blood, any bodily fluids or other matter from any wildlife or any other thing found at the land, waters, tent, building or structure;

(d) with whatever assistance is required, mark any wildlife or thing found at the land, waters, tent, building or structure for the purpose of later being able to identify it;

(e) inspect and make copies of or take extracts from, any document kept at the land, waters, tent, building or structure;

(f) seize any thing found at the lands, waters, tent, building or structure, if the authorised officer believes, on reasonable grounds, that it is necessary to seize the thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating an offence against the Wildlife Act;



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(g) construct, erect and maintain notices, posts, buoys, beacons, or other markers for or in connection with the boundaries of areas referred to in, or held under, the Wildlife Act or the subject of applications made for the purposes of the Wildlife Act;

(h) search for and seize any wildlife which have been taken or are apparently being held or retained in contravention of the Wildlife Act and any documents or records relating thereto; and

(i) search and seize or dismantle or destroy any duck-trap, net or other equipment which is apparently being used or has been used in contravention of the Wildlife Act.

73.12.2 An authorised officer or a member of the police force also has power to seize anything they feel relates to an act contravening the Wildlife Act (section 60). Any offenders found by the wildlife officers or police must give their name and address to the officer. Any person who obstructs, resists, assaults, incites or encourages any person to obstruct, resist or assault an authorised officer or member of the police force in the execution of his/her duty under the Wildlife Act or who threatens any such officer or member, shall be guilty of an offence.

74 FISHERIES ACT 1995

74.1 Introduction

74.1.1 The purpose of the Fisheries Act 1995 is to provide a modern legislative framework for the regulation, management and conservation of Victorian fisheries including aquatic habitats.

74.1.2 The Fisheries Act is designed to provide for the management, development and use of Victoria’s fisheries, aquaculture industries and associated aquatic biological resources in an efficient, effective and ecologically sustainable manner.

74.1.3 The objective of the Fisheries Act is to protect and conserve fisheries resources, habitats and ecosystems including the maintenance of aquatic ecological processes and genetic diversity. Additionally, the Fisheries Act:

(a) promotes sustainable commercial fishing and viable aquaculture industries and quality recreational fishing opportunities for the benefit of present and future generations;

(b) facilitates access to fisheries resources for commercial, recreational, traditional and non-consumptive uses;

(c) promotes the commercial fishing industry;

(d) facilitates the rationalisation and restructuring of the industry; and

(e) encourages participation of resource users and the community in fisheries management.



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74.2 Fisheries management plan

The purpose of a fisheries management plan is to specify policies and strategies for the management of the fishery to which the plan applies on an ecologically sustainable basis having regard to relevant commercial, recreational, traditional and non-consumptive uses.

74.3 Regulation of fisheries

The Fisheries Act provides for the regulation of fisheries through provisions applying offences, licences, permits and the requirement of authorisation for commercial fishing, aquaculture, recreational fishing and group recreational fishing. The Secretary may authorise licences and permits and vary or amend them if required. The Minister can give a direction on any matter relating to the management of one or more fisheries or one or more zones of a fishery.

74.4 Consultative provisions

74.4.1 On 1 July 2009, the Primary Industries Legislation Amendment Act 2009 made significant changes to the consultation process where the Minister makes decisions under the Fisheries Act.

74.4.2 The Fisheries Co-Management Council (which previously advised the Minister in the management of fisheries) was abolished, and broader consultative provisions were introduced that require the Minister, to the extent it is practicable, to consult with:

(a) recreational fishers;

(b) commercial fishers;

(c) aquaculture operators;

(d) conservation groups;

(e) indigenous groups; and

(f) experts for their advice for the better management of commercial fisheries.

74.4.3 The consultation provisions are broad enough to cover most decisions made by the relevant Minister, but expressly exclude decisions specific to an individual licence or permit holder, and reviewable decisions under section 137 of the Fisheries Act.

74.5 Commercial Fisheries Licensing Panel

The Commercial Fisheries Licensing Panel (section 132 Fisheries Act), is responsible for considering applications relating to the issue, transfer or renewal of fishery licences (other than recreational fishery licences) referred to it by the Secretary and to make recommendations in relation to such applications to the Secretary.



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74.6 Licensing Appeals Tribunal

74.6.1 A Licensing Appeals Tribunal is established under section 135 of the Fisheries Act. A person who is aggrieved by a reviewable decision within the meaning of section 137 may within 1 month after receiving notice of the decision appeal to the Licensing Appeals Tribunal against the decision.

74.6.2 An appeal must be in writing, specify the grounds of the appeal and be lodged with the Registrar of the Licensing Appeals Tribunal.

74.6.3 After hearing an appeal, the Licensing Appeals Tribunal may affirm the decision, vary the decision, set aside the decision and either make a decision in substitution of the decision or remit the matter that gave rise to the decision for reconsideration, in accordance with any direction or recommendation of the Tribunal.

74.6.4 The Licensing Appeals Tribunal may make any order necessary to give effect to its determination of an appeal.

74.6.5 A person to whom such an order is directed must comply with the order.

74.7 Offences

74.7.1 The Fisheries Act provides that a number of unauthorised acts are offences. These offences include activities such as the unauthorised use of explosives and poisons; interference with lawful fishing and aquaculture activities and equipment; unlawful sale or use of boats and fishing equipment; the sale of fish taken in contravention of this Act; the use of foreign boats for fishing; and the blockage of fish passage.

74.7.2 As of 1 July 2009, the Fisheries Act has been given extraterritorial power, so that offences occurring outside of Victoria that have a “real and substantial link” with Victoria will constitute an offence of the Victorian Fisheries Act.

74.8 Enforcement

74.8.1 Authorised officers enforcing the Fisheries Act have been granted very strong powers of entry and inspection under section 102, including powers of seizure. Contravention of this Act may result in heavy penalties for the offender.

74.8.2 As of 1 July 2009, a ‘fisheries officer’ within the meaning of the South Australian Fisheries Management Act 2007 may also exercise or perform any power, authority, function or duty that an authorised officer has under the Fisheries Act.

75 REFERENCE AREAS ACT 1978

75.1 Introduction

Where it is thought that any area of public land should be preserved in its natural state as far as possible because the area is of ecological interest and significance,



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then the Minister may recommend to the Governor in Council that the area be proclaimed to be a reference area pursuant to the Reference Areas Act 1978 (“RA Act”).

75.2 Proclamation of a reference area

75.2.1 Once a recommendation has been made that a particular area should become a reference area, the Governor in Council may proclaim that area of public land to be a reference area (section 4 RA Act).

75.2.2 Once an area has been declared a reference area, the Minister shall appoint a committee to advise as to how reference areas should be protected, controlled and managed so as to preserve the areas.

75.2.3 The term "public land" for the purposes of the RA Act means:

(a) any unalienated land of the Crown, including land temporarily or permanently reserved under the Crown Land (Reserves) Act 1978;

(b) State forest, within the meaning of the Forests Act 1958;

(c) park, within the meaning of the National Parks Act 1975; and

(d) land vested in any public authority, other than (i) a municipal council; or (ii) an Authority under the Water Act, to the extent that the land vested in the Authority is within a sewerage district listed in column 3 of Schedule 12 of that Act. (Schedule 12 of the Water Act has been repealed.)

75.2.4 The RA Act applies to most public land, and therefore potentially, to Water Corporations.

76 DOMESTIC ANIMALS ACT 1994

76.1 Introduction

The purpose of the Domestic Animals Act 1994 (“DA Act”) is to promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment by providing for:

76.1.1 a scheme to protect the community and the environment from feral and nuisance dogs and cats;

76.1.2 a registration and identification scheme for dogs and cats which recognises and promotes responsible ownership;

76.1.3 the identification and control of dangerous restricted breed or menacing dogs;

76.1.4 a registration scheme for domestic animal businesses which promotes the maintenance of standards of those businesses;

76.1.5 matters relating to the boarding of dogs and cats;



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76.1.6 payments to the Treasurer from fees received by municipal councils under this Act; and

76.1.7 other related matters.

76.2 Implications

76.2.1 The DA Act provides for the registration of dogs and cats with the municipal council if the animal is over 3 months old.

76.2.2 A council may register or renew the registration of a dangerous dog and may impose conditions upon the registration of that dog.

76.2.3 If a dog or cat is present on private property on more than one occasion, the owner or occupier of the private property may seize the animal and they must immediately notify the council of the municipal district in which the property is situated.

76.2.4 If the owner of the dog or cat seized can be notified, then the council must serve on the owner of the animal a notice of objection to the presence of that dog or cat on the private property. If, after the notice has been served, the dog or cat enters or remains on the private property, the owner of the dog or cat is guilty of an offence and liable, upon conviction to a penalty of 1 penalty unit for the first offence and 3 penalty units for a second or subsequent offence.

76.2.5 If a dog or cat is found at large in an area designated as a control zone under a management plan within the confines of the Conservation, Forest and Lands Act 1987 or in any area classified as a conservation zone under a planning scheme under the provisions of the Planning and Environment Act 1987, an authorised officer (means any person appointed by the appropriate Minister or local council) may destroy the dog or cat (section 31 DA Act).



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PART 7 – HERITAGE

80 ARCHAEOLOGICAL & ABORIGINAL RELICS PRESERVATIONS ACT 1972

General

This Act has been repealed by the Aboriginal Heritage Act 2006.

81 ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION ACT 1984 (CTH)

81.1 General

The purpose of this Commonwealth Act is the preservation and protection from injury and desecration of areas in Australia and in Australian waters, being areas and objects that are of particular significance to Aborigines, in accordance with Aboriginal tradition.

81.2 Victorian Aboriginal culture

This part of the Commonwealth Act has been repealed. However, Water Corporations should note that the Commonwealth Act is still applicable across Australia, including Victoria, but that for the most part, Aboriginal heritage will be governed in Victoria by the new Aboriginal Heritage Act 2006.

82 ABORIGINAL HERITAGE ACT 2006

82.1 General

82.1.1 The Aboriginal Heritage Act 2006 (“AH Act”) and the Aboriginal Heritage Regulations 2007 (“AH Regs”) commenced on 28 May 2007. They essentially replace the Archaeological & Aboriginal Relics Preservations Act 1972 and the Victorian provisions of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

82.1.2 The AH Act and AH Regs protect Aboriginal cultural heritage in Victoria. The definition of “cultural heritage” is broad and incorporates Aboriginal places, objects and human remains both of a historic and contemporary nature.

82.2 What the AH Act and AH Regs do

Essentially, the AH Act and AH Regs:

82.2.1 establish the Aboriginal Heritage Council;

82.2.2 provide for a system of registering Aboriginal parties who will be responsible for Aboriginal cultural heritage in their local areas (known as Registered Aboriginal Parties (“RAPs”));

82.2.3 provide for when a cultural heritage permit will be required for removal or destruction of Aboriginal cultural heritage;



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82.2.4 provide for the development of Cultural Heritage Management Plans (“CHMPs”);

82.2.5 provide for the entering into of voluntary cultural heritage agreements; and

82.2.6 allow for protection declarations to protect Aboriginal cultural heritage.

82.3 Cultural heritage permits

82.3.1 It is an offence under the AH Act for a person to do an act that harms Aboriginal cultural heritage.

82.3.2 It will not be an offence if the person is acting in accordance with a cultural heritage permit or approved CHMP, or the act is necessary because of an emergency.

82.3.3 A person may apply to Aboriginal Affairs Victoria (“AAV”) for a permit which will allow the person to disturb or excavate any land for the purposes of:

(a) uncovering or discovering Aboriginal cultural heritage;

(b) carrying out scientific research;

(c) carrying out an activity that will or is likely to harm Aboriginal cultural heritage;

(d) buying or selling an Aboriginal object; or

(e) removing an Aboriginal object from Victoria.

82.3.4 A permit cannot be granted in respect of Aboriginal human remains.

82.3.5 A permit cannot be granted for an activity for which a CHMP is required.

82.3.6 Permits must be referred to the relevant RAP appointed under the AH Act. A permit cannot be granted if the RAP objects to it. Appeals to VCAT may be taken in respect of such refusal.

82.4 Cultural Heritage Management Plans

82.4.1 A CHMP is a report that assesses the nature of any Aboriginal cultural heritage present in or on land and includes recommendations to protect that heritage if it exists.

82.4.2 A CHMP is required to be prepared in the following circumstances:

(a) if the AH Regulations require it;

(b) if the Minister directs it; and

(c) if a proponent or other person is required to prepare an environment effects statement under the Environment Effects Act 1978 in respect of any works.



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82.4.3 Regulation 6 of the AH Regs requires a CHMP if:

(a) all or part of the activity area for the activity is in an area of cultural heritage sensitivity; and

(b) all or part of the activity is a high impact activity.

82.4.4 Areas of cultural heritage sensitivity are included in the AH Regs and care must be taken to know specifically where any works are to be undertaken. For example, a “waterway” or land within 200 metres of a waterway is an area of cultural heritage sensitivity unless it has been subject to significant ground disturbance. The definition of “waterway” in the AH Regs is complex and advice should be sought on this matter.

82.4.5 High impact activities include a utility installation where that installation would result in significant ground disturbance. Some exemptions to this apply in the AH Regs.

82.4.6 What amounts to “significant ground disturbance” has been considered now in several cases before VCAT. Most notably in:

(a) Mainstay v Mornington Peninsula SC (Red Dot) [2009] VCAT 145; and

(b) Azzure Investment Group Pty Ltd v Mornington Peninsula SC (Red Dot) [2009] VCAT 1600.

82.4.7 There are some exemptions to the requirement to conduct a CHMP, however, these relate predominantly to where permission was granted to use or develop the land prior to the commencement of the AH Act and AH Regs.

82.4.8 If a statutory authorisation is required to use or develop land, then the person who ordinarily grants such authorisation is unable to do so unless a CHMP has been prepared.

82.4.9 A CHMP once prepared must be approved by AAV and the RAP (if applicable). A determination not to approve a CHMP can be challenged in VCAT.

82.4.10 Notably, if a CHMP is not required, that does not absolve a person from penalty under the AH Act. It is recommended that all due diligence is taken in respect of works undertaken on land.

83 HERITAGE ACT 1995

83.1 General

83.1.1 The Heritage Act 1995 provides a framework for heritage protection (other than Aboriginal heritage) and conservation in Victoria.



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83.1.2 The Act repeals the Historic Buildings Act 1981 and the Historic Shipwrecks Act 1981.

83.1.3 The Heritage Act came into force on 30 May 1996.

83.2 Victorian Heritage Register

83.2.1 The Heritage Act establishes the Victorian Heritage Register (“VHR”).

83.2.2 All historic places and objects approved for registration under the Heritage Act must be placed on the VHR.

83.2.3 It is an offence to disturb or destroy objects and places on the VHR without a permit.

83.2.4 Applications for permits are subject to public comment and potentially, a public hearing.

83.3 Heritage inventory

83.3.1 The Executive Director of Heritage Victoria must establish and maintain a heritage inventory.

83.3.2 The following are recorded in the heritage inventory:

(a) all places or objects identified as historic archaeological sites, areas or relics on the register under the (now repealed) Archaeological and Aboriginal Relics Preservation Act 1972 immediately before 23 May 1996;

(b) all known areas where archaeological relics are located;

(c) all known occurrences of archaeological relics; and

(d) all persons known to be holding private collections of artefacts or unique specimens that include archaeological relics.

83.3.3 The term “archaeological relic” means any archaeological deposit or any artefact, remains or material evidence associated with an archaeological deposit which relates to the non Aboriginal settlement of Victoria and is 50 or more years old, but does not include the remains of a ship or an article associated with a ship.

83.3.4 An “archaeological site” means an area in which archaeological relics are situated.

83.3.5 It is an offence for a person to knowingly or negligently deface or damage or otherwise interfere with an unregistered archaeological relic (not on the VHR) without consent from the Executive Director.

83.4 Heritage Council

83.4.1 The Heritage Act establishes the Heritage Council to replace the Historic Buildings Council.



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83.4.2 The Executive Director of Heritage Victoria makes recommendations about heritage registrations to the Council.

83.4.3 The Council will make decisions on registrations.

83.4.4 Any objections on registration are to be heard by the Council.

83.4.5 Time limits will apply to decisions and objections.

83.4.6 In determining that a place or object should be registered, the Council can also determine the works and activities that can be carried out at the place or in relation to the object without the need for a permit under the Heritage Act.

83.4.7 The Minister has a call-in power applying to heritage places and objects including archaeological relics but not including the remains of a ship or articles associated with that ship.

83.5 Interim protection orders

Interim protection orders may be issued by the Executive Director or the Heritage Council before a place or object is registered on the VHR.

83.6 Government buildings

Buildings on the Government Buildings Register which closed in 1989 were not automatically included in the VHR. The VHR will need to be reviewed to determine what buildings are included.

83.7 Historic shipwrecks

The Heritage Act incorporates separate provisions in relation to historic shipwrecks.

84 HERITAGE RIVERS ACT 1992

84.1 General

84.1.1 The purpose of the Heritage Rivers Act 1992 (“HR Act”) is the protection of particular parts of rivers and river catchment areas which have significant nature conservation, recreational, scenic or cultural heritage attributes.

84.1.2 Schedule 1 of the HR Act lists heritage river areas (which includes the Yarra River).

84.1.3 Schedule 2 of the HR Act lists natural catchment areas.

84.2 Obligations imposed

84.2.1 The HR Act imposes obligations upon “managing authorities” to be responsible for managing the areas set out in the schedules to the HR Act and it prohibits various activities within those areas.

84.2.2 The term “managing authority” is defined in section 3(1) of the HR Act to mean:



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“…a person or organisation responsible for the management of public land in a heritage river area or natural catchment area, whether or not that responsibility is exercised alone or together with any other person or authority”.

84.2.3 A "managing authority" must ensure all responsible steps are taken to (section 7):

(a) ensure that the significant nature, conservation, recreational, scenic or cultural attributes of a heritage river are preserved;

(b) ensure that natural catchment areas are maintained in an essentially natural condition; and

(c) ensure that the part of the river which is in the area is maintained without further interference with its free flowing state except as otherwise provided in for in the HR Act.

84.2.4 If requested by the Victorian Environment Minister, managing authorities must prepare a management plan for each heritage river area or natural catchment area within the time specified by the Minister. The plan must include the requirements specified by the Minister (sections 8 and 9 HR Act).

84.3 Prohibited activities

84.3.1 Activities prohibited under the HR Act vary from area to area, and Water Corporations should review each section carefully to determine whether their activities are allowable (see sections 10 and 12 and Schedules 3, 4 and 5 of the HR Act).

84.3.2 Prohibited activities include:

Heritage rivers

(a) an impoundment in a heritage river;

(b) a new water diversion unless the Governor in Council has approved it; and

(c) the harvesting of timbers in heritage rivers.

Natural catchment areas

(a) clearing of indigenous flora and introduction of non-indigenous species of fauna;

(b) harvesting of timber and establishing plantations;

(c) mining and extractive industries;

(d) construction of new water storages or new water diversions;

(e) grazing of domestic animals;



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(f) construction or upgrading of existing roads; and

(g) discharge of effluent.

84.4 Compliance

84.4.1 Recommendations made under the Catchment and Land Protection Act 1994 must be complied with for certain rivers in Schedule 4 of the HR Act (sections 11 and 13 HR Act).

84.4.2 A managing authority has the power to act in an emergency and carry out a prohibited activity (section 16 HR Act).

84.4.3 A managing authority may enter into an agreement with any other authority with respect to the exercise of its powers, but this must be approved by the Victorian Parliament.

85 AUSTRALIAN HERITAGE COMMISSION ACT 1975 (CTH)

This Act was repealed on 1 January 2004 by the Australian Heritage Council (Consequential and Transitional Provisions) Act 2003. It has been replaced by the Australian Heritage Council Act 2003 (see section 86 of this Manual).

86 FEDERAL HERITAGE PROVISIONS

86.1 Background

86.1.1 A new Federal heritage regime was brought about by the enactment of three Commonwealth Acts and two associated regulations. These being:

(a) Environment and Heritage Legislation Amendment Act (No. 1) 2003 (Cth) (“Amending Act”);

(b) Australian Heritage Council Act 2003 (Cth);

(c) Australian Heritage Council (Consequential and Transitional Provisions) Act 2003 (Cth);

(d) Environment Protection and Biodiversity Conservation Amendment Regulations 2003 (No. 1) 2003 (Cth); and

(e) Australian Heritage Council Regulations 2003 (Cth).

86.1.2 The new Federal heritage regime establishes:

(a) a National Heritage List to record the natural, indigenous and historic places with “outstanding” heritage value to our nation;

(b) a Commonwealth Heritage List to record natural and cultural heritage places, which have a “significant” heritage value, and are owned or controlled by the Australian Government; and



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(c) a new Australian Heritage Council as an independent advisory body to the Federal Government on matters of heritage (replacing the Australian Heritage Commission).

86.2 Major changes

86.2.1 The Amending Act incorporates a new heritage protection and management system into the Environment Protection and Biodiversity Conservation Act 1999 (“EPBC Act”). It provides specifically for the inclusion of “National Heritage Places” as a matter of national environmental significance in the EPBC Act.

86.2.2 The Amending Act also establishes the National Heritage List and the Commonwealth Heritage List and sets out the process for nomination and listing of places to these lists and the management and protection arrangements for places on these lists.

86.3 The lists

86.3.1 The National Heritage List will record the natural, indigenous and historic places with outstanding heritage value to Australia. This list may include important places overseas, subject to the agreement of the sovereign country.

86.3.2 The Commonwealth Heritage List will include places or groups of places that are in Commonwealth lands and waters or under the control of the Australian Government.

86.4 Indigenous heritage values

86.4.1 The Amending Act also specifically provides protection for places with indigenous heritage values.

86.4.2 In the case of indigenous heritage places on the National Heritage List, the Commonwealth has the power to protect them irrespective of land tenure.

86.4.3 If the Council considers that a place might have indigenous heritage values, they must ask the Director of Indigenous Heritage Protection to provide written advice on the place’s indigenous heritage value.

86.5 Impact under EPBC Act

86.5.1 Because of the inclusion of these two lists in the EPBC Act actions that have, will have, or are likely to have, a significant impact on a place listed on the National Heritage List or the Commonwealth Heritage List, may require approval under the EPBC Act.

86.5.2 The Amending Act substantially increases penalties for any unauthorised actions taken on heritage listed places.

86.5.3 Commonwealth Heritage places are protected under the existing provisions of the EPBC Act. The EPBC Act provides that actions:



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(a) taken on Commonwealth land that are likely to have a significant impact on the environment, will require the approval of the Minister;

(b) taken outside Commonwealth land which are likely to have a significant impact on the environment on Commonwealth land, will require the approval of the Minister; and

(c) taken by the Australian Government or its agencies which are likely to have a significant impact on the environment anywhere, will require approval by the Minister.

86.5.4 The definition of “environment” in the EPBC Act includes the heritage values of places and so the operation of these provisions provides protection for the values of Commonwealth Heritage places.

86.5.5 The new legislation places obligations on Australian government agencies to develop heritage strategies for places they control and own and to take all reasonable steps to aid the Heritage Council to identify heritage places.

86.6 Australian Heritage Council

86.6.1 The Australian Heritage Council Act 2003 replaces the Australian Heritage Commission with the new Australian Heritage Council. The new Council takes submissions for the listing of National and Commonwealth Heritage Places under the EPBC Act.

86.6.2 The Heritage Council’s role is to:

(a) assess nominations in relation to the National Heritage List and the Commonwealth Heritage List;

(b) advise the Minister on matters relating to heritage places;

(c) promote the identification, assessment and conservation of heritage; and

(d) maintain the Register of the National Estate.

86.7 Register of National Estates

86.7.1 The Register will be maintained by the new Heritage Council.

86.7.2 No new places can be listed on the Register as these are now to be included in the EPBC Act.

86.7.3 Places listed on the Register of National Estates do not carry the same weight as those listed under the EPBC Act and, therefore, do not attract penalties. Listings on the Register of National Estates however, may be transferred to the EPBC Act and therefore, will attract penalties under that Act.



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PART 8 – EMPLOYMENT / INDUSTRIAL / DIRECTOR, MEMBER AND OFFICER LIABILITY

87 EQUAL OPPORTUNITY AND ANTI-DISCRIMINATION LAWS

87.1 Water Corporations are subject to the following State and Federal anti-discrimination laws:

87.1.1 Equal Opportunity Act 2010 (Vic) (“EO Act“);

87.1.2 Racial Discrimination Act 1975 (Cth) (“RD Act“);

87.1.3 Sex Discrimination Act 1984 (Cth) (“SD Act“);

87.1.4 Disability Discrimination Act 1992 (Cth) (“DD Act“);

87.1.5 Age Discrimination Act 2004 (Cth) (“AD Act“);

87.1.6 Fair Work Act 2009 (Cth) (“FW Act“); and

87.1.7 Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”).

87.2 In many respects, the Federal legislation mirrors the provisions contained in the EO Act. There are some subtle differences between the State and Federal legislation, but generally, there is broad overlap.

88 EQUAL OPPORTUNITY ACT 2010 (VIC)

88.1 General

88.1.1 In general terms, the Victorian EO Act makes it unlawful to discriminate against a person in the provision of employment, goods and services, accommodation, or in the disposal of land, on the basis of any of the following attributes:

(a) age;

(b) breastfeeding;

(c) employment activity;

(d) gender identity;

(e) disability;

(f) industrial activity;

(g) lawful sexual activity;

(h) marital status;

(i) parental status or status as a carer;

(j) physical features;



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(k) political belief or activity;

(l) pregnancy;

(m) race;

(n) religious belief or activity;

(o) sex;

(p) sexual orientation; and

(q) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.

88.1.2 A person with a duty under the EO Act must take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible (section 15).

88.1.3 In determining whether or not a person has engaged in discriminatory behaviour under the EO Act, the person’s motive is irrelevant.

88.2 Some defined terms

88.2.1 The term "age" applies to people of all ages.

88.2.2 The term "carer" means a person on whom another is wholly or substantially dependent for ongoing care on a substantially non-commercial basis, regardless of whether they have a family relationship.

88.2.3 The term "disability" means—

(a) total or partial loss of a bodily function; or

(b) the presence in the body of organisms that may cause disease; or

(c) total or partial loss of a part of the body; or

(d) malfunction of a part of the body, including—

(1) a mental or psychological disease or disorder;

(2) a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder; or

(e) malformation or disfigurement of a part of the body—

and includes a disability that may exist in the future (including because of a genetic predisposition to that disability) and, to avoid doubt, behaviour that is a symptom or manifestation of a disability.

88.2.4 The term “employment activity” is when an employee, acting in his or her individual capacity (and not on behalf of another employee), makes a



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reasonable request to the employer for information regarding his or her employment entitlements, or communicates to the employer orally or in writing his or her concerns that he or she has not been, is not being or will not be, given some or all of the employee’s employment entitlements.

88.2.5 The term “employment entitlements” are rights arising under an applicable contract of employment, contract for services, workplace agreement, award or Act.

88.2.6 The term "industrial activity" means—

(a) being or not being a member of, or joining, not joining or refusing to join, a union;

(b) establishing or being involved in establishing or forming a union;

(c) organising or promoting or proposing to organise or promote a lawful activity on behalf of an industrial organisation or industrial association;

(d) encouraging, assisting, participating in or proposing to encourage, assist or participate in a lawful activity organised or promoted by union;

(e) not participating in or refusing to participate in a lawful activity organised or promoted by union; or

(f) representing or advancing the views, claims or interests of members of an industrial organisation or industrial association.

88.2.7 The term "marital status" includes the status of being single, married, divorced, widowed, a domestic partner (including same sex relationships), or being married but living separately and apart from a spouse.

88.2.8 The term "physical features" covers features beyond a person's control, such as height, weight, size or other bodily characteristics. It does not include self-imposed adornments, such as tattoos or body piercing.

88.2.9 In relation to "pregnancy", discrimination may lawfully occur where it is reasonably necessary to protect the health and safety of the pregnant person or others (section 80).

88.3 Discrimination in employment

88.3.1 It is unlawful to discriminate against job applicants on the basis of a protected attribute (section 16):

(a) when determining who should be offered employment;

(b) when deciding on the terms on which employment is offered;



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(c) when determining whether to refuse or omit to offer employment; or

(d) when deciding whether to deny access to a guidance program, apprenticeship or other occupational training program.

88.3.2 It is unlawful to discriminate against employees on the basis of a protected attribute (section 18):

(a) by denying or limiting access to opportunities for promotion, transfer or training, or other benefits connected with the employment;

(b) by dismissing or terminating their employment;

(c) by denying access to guidance or training programs; or by submitting the employee to any other detriment.

88.3.3 It is unlawful to discriminate against contract workers on the basis of a protected attribute (section 21):

(a) in the terms on which the contract worker is engaged;

(b) by not allowing the contract worker to work or to continue to work;

(c) by denying or limiting access to any benefits connected with the work; or

(d) by subjecting the contract worker to any other detriment.

88.3.4 It is unlawful to unreasonably refuse to accommodate an employee’s parental or carer responsibilities (sections 17 and 19). This means that employers have a legal obligation to consider requests for part-time work, working from home arrangements, or other flexible arrangements proposed by employees with parental responsibilities.

88.3.5 In considering whether it is reasonable to refuse a request, the employer must consider all of the relevant circumstances, including:

(a) the person's circumstances, including the nature of his or her responsibilities as a parent or carer;

(b) the nature of the role that is on offer;

(c) the nature of the arrangements required to accommodate those responsibilities;

(d) the financial circumstances of the employer;

(e) the size and nature of the workplace and the employer's business;

(f) the effect on the workplace and the employer's business of accommodating those responsibilities, including—

(1) the financial impact of doing so;



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(2) the number of persons who would benefit from or be disadvantaged by doing so;

(3) the impact on efficiency and productivity and, if applicable, on customer service of doing so; and

(4) the consequences for the employer of making such accommodation; and

(g) the consequences for the person of not making such accommodation.

88.4 Discrimination in the provision of goods and services

88.4.1 It is unlawful to discriminate against a person on the basis of a protected attribute (section 44):

(a) when deciding on whether to refuse to provide goods or services;

(b) when setting the terms on which goods and services are provided; or

(c) by subjecting the person to some detriment in connection with the provision of goods and services.

88.4.2 This applies whether or not the goods or services are provided for payment.

88.5 Discrimination in the disposal of land

88.5.1 It is unlawful to discriminate against a person on the basis of a protected attribute (section 50):

(a) by refusing to dispose of land to them; or

(b) in the terms on which land is offered to them.

88.5.2 This provision applies despite any other Act or document to be contrary but does not apply to leasehold land for accommodation.

88.6 Exemptions and exceptions

Discrimination which would be unlawful is excused in some circumstances. These exemptions or exceptions can be related to specific areas (eg, employment) or be of general application.

88.7 General exemptions

88.7.1 Part 5 of the EO Act sets out when a person is exempted from complying with the EO Act. The exemptions include:

(a) Things done to comply with another law, for example, taking certain steps to comply with obligations under occupational health and safety legislation (section 75).



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(b) Things done to comply with an order of a court or tribunal (section 76, EO Act).

(c) Preserving superannuation fund conditions where a person was a member of the fund at 1 January 1996 (section 78).

(d) Things done by a religious body to conform with and protect its religious doctrines, beliefs or principles (section 81 – 84).

(e) Protection of health, safety and property of any person or of the public generally (section 86).

(f) Age benefits and concessions, including pensions and concessions (sections 77 and 87).

(g) Welfare measures and special services, benefits or facilities designed to meet the special needs of a person with an attribute or to prevent disadvantage to that person (section 88).

88.7.2 On application, the VCAT can grant a formal exemption from any of the provisions of the EO Act in relation to a person or a group of people, or an activity or a class of activities. Such exemption remains in force for a period of up to 5 years (section 89).

88.8 Exceptions relating to employment

88.8.1 The EO Act contains a number of exceptions from the prohibition of discrimination specifically in an employment context. For example:

(a) Discrimination on the basis of disability is permitted where an employee or prospective employee can only perform the inherent requirements of a position with special adjustments, services or facilities and it would be unreasonable for the employer to provide those special adjustments, services or facilities (section 23).

(b) An employer may limit the offering of employment to people of a particular sex if there is a genuine occupational requirement (section 26) such as:

(1) the necessity of physical characteristics particular to people of one sex, other than strength or stamina; or

(2) the preservation of decency or privacy (eg, employment involving the fitting of clothing, conducting body searches or entering toilets or areas where people may be in a state of undress).

88.8.2 Other exceptions exist in the area of employment but they are narrow and of limited practicality. The only relevant exemptions relate to early retirement and youth wages.



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88.9 Exceptions relating to provision of goods and services

The EO Act contains a number of exceptions from the prohibition of discrimination in the provision of goods and services. These include:

88.9.1 a refusal to provide a service to a person with a disability if:

(a) the person requires adjustments to be made to the provision of a service in order to participate, access or obtain any substantial benefit from the service; and

(b) it is not reasonable to provide such adjustments; or

(c) the person could not or cannot participate in or access the service or derive any substantial benefit from the service even after the adjustment is made a requirement that a child to be supervised by an adult when providing goods or services to the child (section 49); and

88.9.2 discrimination against a person in the disposal of land by will or as a gift (section 51).

88.10 Sexual harassment

88.10.1 Sexual harassment is unlawful. Sexual harassment includes (section 92(1)):

(a) making an unwelcome sexual advance;

(b) making an unwelcome request for sexual favours; or

(c) any other unwelcome conduct of a sexual nature,

where a reasonable person, having regard to all of the circumstances, would anticipate that the other person would be offended, humiliated or intimidated.

88.10.2 Conduct of a sexual nature includes subjecting a person to any act of physical intimacy, making remarks or statements with sexual connotations (verbally or in writing), and making any gesture, action or comment of a sexual nature in the person's presence (section 92(2)).

88.10.3 Sexual harassment may be committed by employers or prospective employers, employees or prospective employees, partners in a firm, members of an industrial organisation, etc (sections 93, 95, 96 and 99).

88.10.4 Sexual harassment is also unlawful in "common workplaces", regardless of whether the people are employees of the same company (section 94). A "workplace" is defined as any place where a person attends for the purpose of carrying out any functions relating to their employment regardless of whether it is their principal place of business. For example, an external contractor entering the Water Corporation site, can sexually harass the Water Corporation’s staff. Both the contractor and his or her employer might be liable for the sexual harassment.



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88.10.5 Sexual harassment is unlawful in the course of:

(a) providing or offering to provide goods or services to another person; and

(b) receiving or selecting goods or services provided by another person (section 99).

88.11 Victimisation

88.11.1 It is unlawful for a person to subject, or threaten to subject, another person to any detriment because the other person has:

(a) made a complaint of discrimination or sexual harassment; or

(b) has given evidence or information, or produced a document, in connection with a complaint of discrimination or sexual harassment.

88.11.2 In determining whether a person victimises another person, it is irrelevant whether the person’s complaint or participation in a workplace investigation is the only or dominate reason for the treatment or threatened treatment. It is also irrelevant whether the person acts alone or in association with another person.

88.12 The Victorian Equal Opportunity and Human Rights Commission

88.12.1 If conduct falls within the scope of the EO Act, a complaint can be lodged with the Victorian Equal Opportunity and Human Rights Commission (“VEOHRC”). The person who makes the complaint is known as the complainant. The person, company or organisation against whom the complaint is being made is known as the respondent. A complaint can be made against more than one respondent.

88.12.2 Once lodged, a complaint is assigned to an investigator whose role is to investigate the legal and factual issues surrounding the alleged acts of discrimination or sexual harassment. At the beginning of the investigation process the complainant and the respondent/s are contacted by telephone and in writing. A letter is sent to the respondent notifying him/her of the complaint. The respondent is informed of:

(a) who is making the complaint,

(b) who the complaint is against,

(c) what the alleged discrimination is,

(d) which sections of the EO Act apply, and

(e) which possible exceptions from the EO Act may apply.

88.12.3 The VEOHRC may also send the respondent a detailed set of questions about the complaint. These questions help the respondent prepare a response to the complaint and help the VEOHRC determine the



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substance of the complaint. The VEOHRC also sends the complainant and the respondent details of the relevant law, including possible exceptions from anti-discrimination laws that may apply. Sometimes it may be necessary to further clarify issues. The complainant and respondent are given the opportunity to identify witnesses who can help substantiate their points of view. Parties may be requested to produce documents.

88.12.4 The VEOHRC must decide to accept or reject the complaint within 60 days from the date the complaint is received by the VEOHRC.

88.12.5 If the complaint is accepted, the respondent (and the complainant) will receive a letter from the VEOHRC setting out why there is a prima facie case of discrimination. A conciliation will be listed to see if the matter can be settled by agreement between the parties. WorkCover claims cannot be the subject of any resolution reached between the parties.

88.12.6 If the complaint is not accepted by the VEOHRC or a resolution cannot be reached at conciliation, the complainant has 60 days to request the VEOHRC to forward the complaint to VCAT for a formal hearing.

88.13 Procedure at VCAT

88.13.1 A directions hearing will be listed at which administrative orders will be made regarding:

(a) the expected length of a hearing;

(b) the number of witnesses and preparation of witness statements;

(c) the times for particulars of complaint and defence to be filed and served;

(d) a date for compulsory mediation; and

(e) a hearing date.

88.13.2 If the mediation fails, the orders are then followed.

88.14 Vicarious liability

Water Corporations are vicariously liable for the conduct of their employees and agents (section 109) in the event of any contravention of the EO Act. In some circumstances, an employer may not be liable if it can prove, on the balance of probabilities, that it took reasonable precautions to prevent the employee or agent contravening the legislation (section 110).

88.15 Advertising and discriminatory questions

88.15.1 It is an offence to publish, display or authorise an advertisement or other notice which indicates an intention to contravene the EO Act (section 182). Advertisements should therefore not state or imply that employment or the provision of goods and services is dependent on a



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job applicant possessing (or not possessing) certain attributes covered by the legislation.

88.15.2 A person found guilty of an offence under section 182 may be convicted and fined up to $8,450.40. If a corporation is found guilty of an offence under section 182 it may be convicted and fined up to $42,252.00.

89 AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 (CTH)

89.1 General

The AHRC Act gives the Australian Human Rights Commission (“AHRC”) the authority to investigate and conciliate complaints of alleged discrimination under the federal RD Act, SD Act, and DD Act, as well as complaints relating to human rights breaches, such as the right to freedom of speech and the right to equal treatment before the law.

89.2 Process under the AHRC Act

89.2.1 If conduct falls within the scope of the RD Act, SD Act, or the DD Act, a complaint can be lodged with the AHRC.

89.2.2 Most complaints under the RD Act, SD Act, or the DD Act are resolved at a conciliation conducted by the AHRC.

89.2.3 If the conciliation is unsuccessful the matter will be listed in the Federal Court or the Federal Magistrates’ Court.

89.2.4 The Court process is broadly similar to the VCAT process with a:

(a) directions hearing and similar orders;

(b) mediation before a Registrar; and

(c) hearing.

90 FAIR WORK ACT 2009 (CTH)

On 1 July 2009, the concept of adverse action was introduced into federal workplace relations legislation.

90.1 Adverse Action

90.1.1 A person (ie, an employee, employer or a contractor) must not take, or threaten to take, any negative action against another person, such as dismissing or refusing to employ them, or injuring their employment/engagement (“adverse action”), because the other person has a workplace right, has or has not exercised a workplace right, or proposes to (or not to) exercise such a right.

90.1.2 A “workplace right” includes:

(a) the right to a benefit under a workplace law, a workplace instrument or an order made by an industrial body;

http://www.hreoc.gov.au/complaints_information/index.html



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(b) the right to initiate or participate in proceedings under a workplace law or a workplace instrument;

(c) the right to make a complaint or inquiry to a person or body having capacity to seek compliance with a workplace law or workplace instrument; and

(d) if the person is an employee, the right to make a complaint or inquiry in relation to the employee’s employment.

90.1.3 An employer must not take adverse action against an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

90.1.4 In addition, an employer must not terminate an employee because the employee is temporarily absent from work because of illness or injury. An absence is not a temporary absence from work if it is an absence of more than 3 months, or a total of more than 3 months’ absence in a 12 month period, and the employee is not on paid personal/carer’s leave for the duration of the absence.

90.1.5 If a person alleges that adverse action has been taken against them, the person may make an application to Fair Work Australia (“FWA”) to deal with a general protections dispute. If the alleged adverse action does not involve the person’s dismissal, and the parties agree to FWA conducting a conference, FWA will schedule a private conference to resolve the dispute.

90.1.6 FWA will list the matter for a conference. If the dispute remains unresolved after the FWA conference, the person will be issued a certificate by FWA which permits them to make an application to the Federal Court to deal with the matter. If FWA considers that such an application would not have a reasonable prospect of success, it will advise the parties accordingly.

90.1.7 Adverse action involving termination is discussed at paragraph 95.7 below.

91 EQUAL OPPORTUNITY FOR WOMEN IN THE WORKPLACE ACT 1999 (CTH)

91.1 The Equal Opportunity for Women in the Workplace Act 1999 (Cth) (“EOWW Act”) requires certain employers to establish workplace programs to eliminate discrimination and contribute to equal opportunity for women in the workplace. Organisations covered by the EOWW Act need to report annually to the Equal Opportunity for Women in the Workplace Agency in relation to their workplace programs.

91.2 Ordinarily, employers in the private sector employing more than 100 people will be covered by the legislation.

91.3 The EOWW Act does not apply to statutory authorities - being bodies (whether incorporated or not) established for a public purpose by or under a law of a State.



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Accordingly, Water Corporations are not subject to the requirements of this legislation.

92 OCCUPATIONAL HEALTH & SAFETY ACT 2004

92.1 General

92.1.1 The Occupational Health and Safety Act 2004 (Vic) (“OH&S Act”) is designed to promote and improve health and safety standards in the workplace.

92.1.2 The objects of the OH&S Act are:

(a) to secure the health, safety and welfare of employees and other persons at work;

(b) eliminate welfare risks to health or safety;

(c) to ensure that the health and safety of members of the public is not placed at risk by conduct of employees and self-employed persons; and

(d) to provide involvement in OHS standards.

92.2 Duties of employers

92.2.1 Section 21 of the OH&S Act provides as follows:

“(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

(2) Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following:

(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b) make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c) maintain, so far as is reasonably practicable, each workplace under the employer’s management and control, in a condition that is safe and without risks to health;

(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;

(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.



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(3) For the purpose of sub-sections (1) and (2):

(a) a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and

(b) the duties of an employer under those sub-sections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control”.

92.2.2 It is particularly important to note that the employer is responsible for a subcontractor’s employees and an agreement to hand over the work site to the subcontractor does not necessarily relieve the employer from the responsibility to ensure that the workplace is safe and free of risk.

92.3 Duties of employers to monitor health and conditions


“(1) An employer must, so far as is reasonably practicable:

(a) monitor the health of employees of the employer; and

(b) monitor conditions at any workplace under the employer’s management and control; and

(c) provide information to employees of the employer (in such other languages as appropriate) concerning health and safety at the workplace, including the names of persons to whom an employee may make an enquiry or complaint about health and safety.

(2) An employer must, so far as is reasonably practicable:

(a) keep information and records relating to the health and safety of employees of the employer; and

(b) employ or engage persons who are suitably qualified in relation to occupational health and safety to provide advice to the employer concerning the health and safety of employees of the employer.”

92.3.2 This section may also be used to require employees to submit themselves for health checks.

92.4 Duties of employers to other persons (other than employees or subcontractors)




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“(1) An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.”

92.4.2 Example: this section applies to any other person on the premises, eg, someone delivering materials or any site visitor.

92.5 Duties of employees


“(1) While at work, an employee must:

(a) take reasonable care for his or her own health and safety; and

(b) take reasonable care for the health and safety of persons who may be affected by the employee’s act or omissions at a workplace; and

(c) cooperate with his or her employer with respect to any action taken by the employer to comply with a requirement imposed by or under this Act or the regulations.

(2) misuse anything provided at the workplace in the interests of health, safety or welfare.

(3) In determining for the purposes of sub-section (1) (a) and (b) whether an employee failed to take reasonable care, regard must be had to what the employee knew about the relevant circumstances.”

92.5.2 While at work, an employee must not intentionally or recklessly interfere with or

92.6 Duties of persons who manage or control workplaces


“(1) A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace, must ensure so far as is reasonably practicable, that the workplace and the means of entering and leaving it, are safe and without risks to health.

(2) The duties of a person under sub-section (1) apply only in relation to matters over which the person has management or control.”

92.6.2 This duty is owed at all supervisory and managerial levels of Water Corporations including directors and executive Board members.

92.6.3 Other sections of the OH&S Act deal with:

(a) incident reporting;



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(b) health and safety representatives;

(c) the requirement to consult on OH&S matters; and

(d) inspectors and their powers.

92.7 Duty not to recklessly endanger persons at a workplace

92.7.1 Section 32 of the OH&S Act provides:

“A person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence…”

92.7.2 This section applies to any employee (and to others at the workplace) and is breached whether or not any incident occurs.

92.8 Regulations

Water Corporations must also have regard to the Occupational Health and Safety Regulations 2007 (“OH&S Regulations”).

92.9 Offences

Offences under the OH&S Act are indictable offences which may result in convictions against the individuals involved in the offence as well as the Water Corporation. Offences may be heard and determined summarily.

93 HARMONISED WORKPLACE SAFETY LEGISLATION

93.1 In December 2009, Safe Work Australia released a model Workplace Safety Act which was to be adopted by each State and Territory in Australia in order to harmonise workplace safety legislation in each jurisdiction.

93.2 Many jurisdictions in Australia endorsed the model workplace safety legislation and, subject to some State-specific amendments, the harmonised workplace safety laws commenced in the Australian Capital Territory, New South Wales, Northern Territory, Queensland, and at the Commonwealth level on 1 January 2012. Tasmania’s workplace safety legislation will commence on 1 January 2013. South Australia and Western Australia are yet to pass the model workplace safety legislation.

93.3 The Victorian Government has confirmed that Victoria will not adopt the national model workplace health and safety laws in their current form. WorkSafe Victoria continues to enforce Victoria’s existing OH&S Act, the OH&S Regulations and Compliance Codes.

94 ACCIDENT COMPENSATION ACT 1985

94.1 General

94.1.1 The objects of the Accident Compensation Act 1985 (Vic) (“AC Act”) (section 3) are to:



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(a) reduce the incidence of accidents and diseases in the workplace;

(b) make provision for the effective occupational rehabilitation of injured workers and their early return to work;

(c) increase the provision of suitable employment to workers who are injured to enable early return to work; or

(d) provide adequate and just compensation to injured workers.

94.1.2 The Victorian WorkCover Authority (“VWA”) manages the Accident Compensation Scheme and administers the AC Act.

94.2 Relevance to Water Corporations

94.2.1 The parts of the AC Act which may be relevant to Water Corporations include:

(a) the requirement that all claims be notified to the VWA within 10 days (section 108);

(b) the requirement that employers keep in a readily accessible place (section 101):

(1) a summary of the requirements relating to the giving of notice of an injury and the making of a claim under the AC Act;

(2) the name of the employer's authorised agent responsible for managing claims under the AC Act;

(3) the benefits available to workers under the AC Act; and

(4) a register of injuries in a form approved by the Authority.

(c) the requirement that, on receiving a notice of an injury, an employer enter the specified particulars of the injury in the register;

(d) the requirement that the employer provide an injured worker with suitable employment, to the extent that it is reasonable to do so, during the 52 week period after the employer is notified of the employee’s injury (section 194);

(e) the requirement that an employer plan the return to work of an injured worker once the employer knows, or ought reasonably have known, of the worker’s incapacity for work (whichever is earlier) (section 195). This includes consulting with the worker, the worker’s treating health practitioner and the provider of the occupational rehabilitation services.

94.2.2 Common law action against an employer under a breach of the employer's duty of care applies if "serious injury" is a consequence. "Serious injury" as defined in section 135A(3) of the AC Act is 30% degree of impairment or a section 135A(19) descriptive test.



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94.2.3 The introduction of section 134AA into the AC Act through the Accident Compensation (Common Law and Benefits) Act 2000 has restored common law actions for damages in a range of circumstances additional to those provided by section 135A. Water Corporations need to be aware that common law claims may involve potentially large awards of damages having to be paid to satisfy claimants.

95 EMPLOYMENT LEGISLATION - FEDERAL/STATE RELATIONSHIP

95.1 Legislation

The employment of employees of Water Corporations is governed by the following State and Federal legislation:

95.1.1 Fair Work Act 2009 (Cth) (“FW Act”);

95.1.2 Fair Work Regulations 2009 (Cth) (“FW Regulations”);

95.1.3 Fair Work (Commonwealth Powers) Act 2009 (“FWCP Act”);

95.1.4 Water Act 1989;

95.1.5 Water (Long Service Leave) Regulations 2011; and

95.1.6 Public Administration Act 2004.

95.2 Application Water Corporations

95.2.1 Section 119 of the Water Act provides that a Water Corporation may employ, on terms and conditions determined by the Water Corporation, such officers and employees as it considers necessary for the carrying out of its functions.

95.2.2 The FW Act applies to all employees of Water Corporations.

95.3 Termination of employment

The FW Act Act provides:

95.3.1 remedies for dismissal in circumstances where a dismissal is harsh, unjust or unreasonable (unfair dismissal); and

95.3.2 remedies where a dismissal is, to any extent, motivated by an attribute of the person dismissed, or certain circumstances surrounding the dismissal (adverse action).

95.4 Unfair dismissal

95.4.1 An employee who has been dismissed may succeed in an unfair dismissal application if:

(a) the employer did not have a valid reason for dismissal;

(b) the employee was not notified of the reason for their termination;



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(c) the employee was not given an opportunity to respond to the reason;

(d) the employer has unreasonably refused to allow an employee to have a support person present for any discussions relating to the termination; or

(e) the dismissal was related to performance and the employee had not been warned prior to the dismissal (not applicable to a summary dismissal).

95.4.2 FWA may take into account any other matters it considers relevant, including the size of the employer, whether there is a dedicated human resource management group, and the way the termination was effected. For example, a dismissal by posted letter may be considered unreasonable.

95.5 Exemptions and excluded employees

Under the FW Act, the following employees are not eligible to make an unfair dismissal claim:

95.5.1 employees engaged under a contract of employment for a specific period of time or a specific task;

95.5.2 employees terminated during the 6 month minimum employment period;

95.5.3 employees of small businesses (businesses with fewer than 15 employees) who are terminated during the 12 month minimum employment period;

95.5.4 casual employees who have not been engaged on a regular and systematic basis;

95.5.5 employees who are not covered by a modern award or enterprise agreement and whose guaranteed annual remuneration exceeds the high income threshold ($123,300 for the 2012-2013 financial year);

95.5.6 trainees, whose employment under a traineeship is for a specified period or is limited to the duration of the agreement;

95.5.7 employees dismissed because of a genuine redundancy, where the employer has complied with any obligations to consult and there is no possibility of redeployment within the employer’s enterprise or that of any related entity; and

95.5.8 demoted employees, provided the demotion does not involve a significant reduction in remuneration or duties.

95.6 Process for unfair dismissal applications

95.6.1 If a person alleges that they have been unfairly dismissed, the person may make an application to FWA for an unfair dismissal remedy within 14 days after the dismissal took effect. FWA may extend the timeframe



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for applying for an unfair dismissal remedy if it is satisfied that the circumstances are exceptional.

95.6.2 FWA will list the matter for a telephone conciliation conference to provide the parties an opportunity to settle the matter by agreement. If the matter is not resolved at conciliation, it will be referred for a formal hearing before a Member of FWA.

95.6.3 If the person is successful in showing that he or she was unfairly dismissed, FWA may order that the person be reinstated back into their former position or, alternatively, may award financial compensation of up to 6 months of the employee’s pay.

95.7 Adverse action

95.7.1 If an employee or contractor is terminated and there is an allegation that the termination constitutes unlawful adverse action, the worker can make an application for FWA to deal with a general protections dispute.

95.7.2 The application must be made within 60 days of the dismissal taking effect. FWA may extend this period if it is satisfied that the circumstances are exceptional.

95.7.3 FWA will hold a conference to deal with the dispute. If the dispute cannot be resolved at the conference, FWA will issue a certificate to the effect that the dispute cannot be resolved. The worker can then make an application to the Federal Court for the matter to be determined by a judge.

95.7.4 An application to the Federal Court must be made within 14 days of FWA issuing the certificate stating that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

95.7.5 In an adverse action claim before the Federal Court, the worker need only prove that they suffered a detriment and that they have a certain protected characteristic, whereas the employer/principal has to prove its defence on the balance of probabilities. For example, an employee need only prove that her employment was terminated, and that she was pregnant at the time of the termination, to succeed in an adverse action claim. The employer must prove that the pregnancy was not a reason for the termination.

95.7.6 If the worker is successful in making a claim of adverse action, the Federal Court may order that the worker be reinstated, or alternatively, that the worker be awarded financial compensation of an uncapped amount. Additionally, the Federal Court may issue a penalty of up to $33,000 for an organisation which has engaged in adverse action, or up to $6,600 for an individual who has been involved in the adverse action.



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95.8 Requirements on termination

All employees who have their employment terminated should be:

95.8.1 given written notice of termination;

95.8.2 paid any applicable notice, if they are not required to work during the notice period;

95.8.3 paid their statutory entitlements; and

95.8.4 be given a statement of service (eg, “x” worked as a ## between ## and ##).

95.9 How much notice must be given?

95.9.1 Unless an employee is guilty of serious misconduct or has a different notice period specified in their contract of employment, the period of notice is calculated as follows (section 117(3), FW Act):

Period of employment Notice

Not more than 1 year 1 week

More than 1 year but not more than 3 years 2 weeks

More than 3 years but not more than 5 years

3 weeks

More than 5 years 4 weeks

95.9.2 The period of notice is increased by one week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer.

95.9.3 An employee is not entitled to be provided notice of termination if they are found guilty of “serious misconduct”.

95.10 What constitutes "serious misconduct" under the FWA?

95.10.1 The FW Regulations specify that “serious misconduct” includes any wilful or deliberate behaviour inconsistent with the continuation of an employee’s contract of employment, as well as conduct that causes a serious and imminent risk to the health or safety of a person or the reputation, viability or profitability of the employer's business.

95.10.2 The following conduct is likely to constitute serious misconduct, justifying summary dismissal without notice:

(a) theft;

(b) fraud;

(c) assault;



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(d) intoxication at work; or

(e) refusal to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

95.10.3 Allegations of serious misconduct should be thoroughly investigated by the employer and employees should be afforded an opportunity to respond to those allegations before action is taken.

96 VICTORIAN INDUSTRIAL RELATIONS POLICY

96.1 General

The State Government requires Water Corporations to implement the policy which includes:

96.1.1 good faith bargaining;

96.1.2 agreement making;

96.1.3 budgetary compliance;

96.1.4 dispute resolution;

96.1.5 work/family balance;

96.1.6 union right of entry and fees;

96.1.7 industrial action;

96.1.8 bargaining permits/termination of workplace agreements;

96.1.9 redundancy, redeployment and retrenchment, including Targeted Separation Packages and Voluntary Departure Packages; and

96.1.10 termination of employment/transfer.

96.2 Government Sector Executive Remuneration Panel

The Government Sector Executive Remuneration Panel governs the remuneration, terms and conditions for executive employees of water businesses who have a remuneration package which exceeds $138,212.00 (as at 1 July 2011, indexed from time to time) or who report directly to the CEO. As at the date of this publication, the State Government has not released the remuneration threshold for 2012. Details can be accessed at www.gserp.vic.gov.au.

96.3 Public Administration Act 2004

96.3.1 The Public Administration Act 2004 (“PA Act”) applies to the public service and to public entities. A public entity is a body established under an Act (eg, Water Act), where at least one half of the directors may be appointed by a Minister and that has a public function to exercise on behalf of the State. This covers Water Corporations.

96.3.2 The PA Act sets out public sector values including:

http://www.gserp.vic.gov.au/



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(a) responsiveness;

(b) integrity;

(c) impartiality;

(d) accountability;

(e) respect;

(f) leadership; and

(g) human rights observance.

96.3.3 Public sector employers, including Water Corporations are required to establish processes to ensure that:

(a) employment decisions are based on merit;

(b) employees are treated fairly and reasonably;

(c) equal opportunity employment is provided;

(d) human rights as set out in the Charter of Human Rights and Responsibilities Act 2006 (refer to Part 10 section 135 of this Manual) are upheld; and

(e) employees have a reasonable avenue of redress against unfair and unreasonable treatment.

96.3.4 Neither the PA Act nor the Public Administration (Review of Actions) Regulations 2005 prescribe the steps which are to be taken by a public sector employer in establishing these processes.

96.3.5 The PA Act also sets out in respect of Directors and Boards:

(a) governance principles; and

(b) removal and suspension of directors.

PUBLIC SERVICE SUPERANNUATION LEGISLATION

97 STATE SUPERANNUATION ACT 1988 (VIC)

97.1 General

The State Superannuation Act 1988 (“SS Act”) has the purposes of provision of improved benefits under the State Superannuation Fund and the introduction of a new scheme for new officers.



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97.2 Operation

The SS Act establishes the Victorian Superannuation Board. The objectives are the collection of contributions and the management and investment of the Fund to maximise returns earned by the Fund. The SS Act:

97.2.1 defines part-time officers (section 24);

97.2.2 defines original scheme members (who are members under the Superannuation Act 1958) and revised scheme members (under the Superannuation Act 1958) and the contributions and benefits for each, including benefits for spouses and children and other dependent persons (section 27);

97.2.3 establishes payments on retrenchment of a revised scheme member (section 44) and rights on resignation of a revised scheme member (section 46); and

97.2.4 deals with new scheme members (members not entitled to any benefit under the Superannuation Act 1958) (Part 7, sections 50-59).

97.3 Superannuation (Public Sector) Act 1992

97.3.1 The Superannuation (Public Sector) Act 1992 (Vic) (“S(PS) Act”) is to be read as a part of the PA Act (section 4). The purpose of the S(PS) Act is to make further provision for superannuation in the public sector.

97.3.2 The S(PS) Act:

(a) Provides for the inclusion in a contract of employment of an executive officer of an election to cease to be a member of named statutory Superannuation Scheme or to continue to be such a member. If the Executive Officer ceases to be a member of a statutory Superannuation Scheme the contract of employment must also provide for membership to an alternative Superannuation Scheme which must be a complying Fund (section 7(4)).

(b) Makes amendments to various Superannuation Acts mainly to deal with the entitlement of Executive Officers.

97.4 State Employees Retirement Benefits Act 1979

97.4.1 The State Employees Retirement Benefits Act 1979 (“SERB Act”) provides for the Board to collect contributions under the Act and manage and invest Funds to maximise returns earned on the Fund. "The Board" means the Victorian Superannuation Board established under the SS Act.

97.4.2 The SERB Act:

(a) establishes the rates of contributions;

(b) prescribes qualifying periods (section 21);



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(c) covers circumstances in which a member will cease to be a contributor (section 22);

(d) provides calculations for benefits on resignation including lump sums and pensions (section 39) and conversion of part of a pension entitlement to a lump sum entitlement (section 42);

(e) deals with benefits for spouses and children on death of a member before retirement (section 44) and death of a pensioner under the Fund and provides the mechanism for dependent persons to apply to the Board for benefits (section 45); and

(f) provides for a review of decisions of the Board by persons who are affected by such a decision (section 67).

98 LONG SERVICE LEAVE

98.1 Long service leave for officers

Section 119(3) of the Water Act specifies that officers of a Water Corporation who have been employed by that Water Corporation for 10 years are entitled to 3 months’ long service leave with pay in respect of that 10 years’ service. For each additional 5 years of completed service the officer is entitled to a further 1½ months’ long service leave with pay.

98.2 Long service leave for employees

98.2.1 The Water (Long Service Leave Regulations) 2011 (Vic) (“LSL Regulations”) sets out how long service leave entitlements for employees of Water Corporations accrue.

98.2.2 The LSL Regulations, made pursuant to sections 119 and 324 of the Water Act, do not set out how much long service leave an employee is entitled to. The long service leave entitlements of employees of Water Corporations will vary because each Water Corporation is covered by its own enterprise agreement which will contain different long service leave entitlements.

98.2.3 The LSL Regulations:

(a) Allows a Water Corporation to direct an employee takes long service leave so that it does not detrimentally effect the Water Corporation’s operations (regulation 8).

(b) Specifies that an employee on long service leave must not engage in any other paid employment unless they have prior approval from the Water Corporation (regulation 9).

(c) Specifies the periods of service that count towards the accrual of long service leave (such as periods of absence due to annual leave, personal leave, community service leave, or other authorised periods of absence, etc) and the periods of service that do not count (such as time worked before an employee was terminated for disciplinary reasons, periods of service after a



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certain breaks in service of greater than 12 months, or periods of absence due to industrial action or insufficient work, etc).

(d) Permits a Water Corporation to recognise an employee’s prior period of service at another Water Corporation where there was a break of no more than 2 months between periods of employment (regulations 14 and 18).

(e) Permits a Water Corporation to enter into an agreement with any local government authority, an office of the Crown, with a State, Territory or Commonwealth Department or with a public entity within the meaning of the Public Administration Act to recognise prior service for the purposes of calculating long service leave entitlements (regulations 14 and 21).

99 VICARIOUS LIABILITY FOR ACTIONS OF EMPLOYEES AND AGENTS

99.1 General

This part deals with the potential for Water Corporations to be liable for the actions of their employees.

99.2 Acts of agents

Usually an agent, as distinct from an employee, is engaged to perform particular tasks and has authority to do whatever is required for that purpose but has no general authority. The test of vicarious liability is whether the agent was acting on behalf of, or within the scope of, the authority conferred by the employer. It may be that an employer authorises an agent specifically to commit a civil wrong (tort). It must then be clearly shown that the employer gave the agent express or implied authority to commit the act complained of. It is possible that if an agent commits a tort while acting on behalf of the employer, but without the employer's authority, the employer subsequently ratifies or assents to the act and is therefore responsible for it.

99.3 Employees

99.3.1 Employers are jointly and severally liable with employees for any tort committed by employees whilst acting in the course of the employment. Two conditions must co-exist:

(a) an employment relationship must exist between the employer and the person committing the wrong complained of; and

(b) that person must, in committing the wrong, have been acting in the course of their employment.

99.3.2 Each of these factors can prove very difficult to ascertain without an exhaustive analysis of the relationship between the two parties and the duties of the presumed employee and the scope of their employment. The Wrongs Act 1958 provides a mechanism for joint tortfeasors to claim contribution from each other to compensate any person who suffers by the act of one of them, for which both are liable.



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100 PUBLIC SAFETY COMMON LAW / NEGLIGENCE

100.1 General

100.1.1 A common law action for damages for personal injury may arise following an accident at a place for which the occupier is liable.

100.1.2 For a member of the public to succeed in an action in negligence against the Water Corporation, it would be necessary to prove that through an act or omission, the Water Corporation breached a duty of care it owed to a member of the public and that some type of damage arose as a consequence of the breach.

100.1.3 Water Corporations owe a duty of care to any person who uses or is granted access for some purpose to their land.

100.1.4 Essentially, the law demands reasonableness in the area of negligence so that reasonable care and caution should be taken to avoid any reasonably foreseeable risk of injury.

100.2 Relevant principles applying to Water Corporations

100.2.1 Water Corporations should maintain appropriate insurance cover in respect to potential common law liability.

100.2.2 In respect to the various properties where Water Corporations may be the occupier, it is recommended that at all times they comply with a duty of care including as follows:

(a) All fences, safety barriers and similar structures should be properly designed, erected and maintained.

(b) As appropriate, the public should be prevented from entering areas of danger and the Water Corporation should display clear warnings as to areas of danger.

(c) Appropriate lighting should be erected and maintained at all times.

(d) All persons having access should be vetted or receive any appropriate warning as to safety requirements and as necessary, risks.

(e) Any recreational equipment should comply with Australian Design and Safety Standards and be properly maintained.

(f) All facilities and public facilities such as barbecues, benches, tables, shelters and toilets are to be adequately constructed and maintained.

(g) Any pathways, including bicycle paths, foot paths, walking and jogging tracks, should be properly maintained and sign posted as to their use and purpose.



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101 WRONGS ACT 1958

101.1 General

Part IIA of the Wrongs Act 1958 covers occupiers’ liability. The legislation forms an integral part of the general law of negligence. The law of occupiers' liability is concerned with the duty owed by occupiers of land or premises towards visitors, whether invited or uninvited, whose presence is lawful or unlawful, who suffer injury during the course of their visit.

101.2 Parts of the Wrongs Act which are relevant to Water Corporations

101.2.1 Section 14B(3) of the Wrongs Act requires occupiers to take such care as, in all the circumstances, is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of premises.

101.2.2 In determining whether the duty of care has been discharged, consideration shall be given to the following:

(a) The gravity and likelihood of the probable injury (section 14B(4)(a)).

(b) The circumstance of the entry onto the premises (section 14B(4)(b)).

(c) The nature of the premises (section 14B(4)(c)).

(d) The knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises (section 14B(4)(d)).

(e) The age of the person entering the premises (section 14B(4)(e)).

(f) The ability of the person entering the premises to appreciate the danger (section 14B(4)(f)).

(g) Whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication (section 14B(4)(fa)).

(h) Whether the person entering the premises is engaged in an illegal activity (section 14B(4)(fb)).

(i) The burden on the occupier in eliminating the danger or protecting the person entering the premises from the danger, as compared to the risk of the danger to the person (section 14B(4)(g)).



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102 MEMBER LIABILITY

102.1 General

102.1.1 At law, members of the Board of a Water Corporation occupy a special relationship with the entity (similar to that of a trustee), including duties of loyalty and good faith.

102.1.2 In general terms, the duties fall into four overlapping categories:

(a) The duty to act in good faith in the interests of the entity as a whole.

(b) The duty to exercise powers for the purpose for which they are conferred (and not for any other collateral or improper purpose).

(c) The duty not to fetter the future exercise of directors' or members' powers.

(d) The duty to avoid being placed in a position of conflict of interest.

102.1.3 Clearly the position of Board members is one that involves the exercise of certain skills and discretions. Members are responsible for the management and affairs of the business and are continually called upon to make commercial decisions.

102.1.4 Whilst courts will not usually interfere with the members' rights to manage the affairs of the company as they see fit, the courts will intervene if the standard of care or conduct of the members falls below that expected of a member in accordance with his or her duties. The courts are not concerned whether the member has made the "best decision", but rather "whether an intelligent and honest person in the position of a member of the company concerned could, in the whole of the existing circumstances, have reasonably believed that the transactions were for the benefit of the company".

102.1.5 Where a member acts in breach of these general duties, the member can be personally liable to the body corporate for the loss or damage suffered by the body corporate as a consequence, and/or to account to the body corporate for any personal gain or benefit which he or she may have derived by virtue of the member’s position.

102.1.6 The care and skill expected is an objective one. The courts generally assume that "a director or member need not exhibit in the performance of their duties a greater degree of skill than may reasonably be expected from a person of their knowledge and experience". If the member does have special knowledge or skills in relation to the business, the member is required to give the corporation the benefit of that knowledge or skill.

102.1.7 A member is obliged to at least obtain a general understanding of the business operation, and the effect of surrounding circumstances, including a changing economy, on the business. A member is required to bring an informed and independent judgment to bear on the various matters before them.



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102.1.8 A member is not required to give continuous attention to the affairs of the corporation. A member's duties are of an intermittent nature, to be performed at periodical meetings of the Board or Committees. A member is not bound to attend all meetings, although they should attend whenever, in the circumstances, it is reasonable to do so.

102.1.9 Members may rely on the special skills or obligations of others to some extent. Obviously, much of the day-to-day operations of the corporation are carried out by the Managing Director and executive staff. The courts recognise that a member is "in the absence of grounds for suspicion, justified in trusting other officials to perform their duties honestly".

102.1.10 There is however an obligation for members and the Board as a whole to set the parameters, guidelines, and policies under which the Managing Director and other executive staff may operate, particularly where they have any delegated authority from the Board.

103 STATUTORY OBLIGATIONS

103.1 Water Act - Implication for officers and Board members of Water Corporations

103.1.1 Board members of Water Corporations are subject to the Public Administration Act 2004 and may be removed from office by the Minister during their term.

103.1.2 In relation to immunity of Water Corporations, see Schedule 16 clause 3 of the Water Act and Part 1 section 27.2 of this Manual.

103.2 Section 108 of the Water Act

103.2.1 A member or an officer of a Water Corporation must not make improper use of information acquired by virtue of that person's position as a member or an officer to gain, directly or indirectly, an advantage for himself or herself, or for any other person, or to cause detriment to the Water Corporation.

103.2.2 Section 108, if breached, can result in fines.

103.2.3 A member who has a pecuniary interest in any matter is required to disclose the nature of the interest either before the meeting of the Board or any of its committees at which the matter is to be considered, or immediately before consideration of the matter. Whilst the member may stay in the meeting during any consideration of the matter and may take part in discussion, he/she must leave the meeting while any vote is taken on a question relating to the matter. Such disclosure must be recorded in the minutes of the meeting (section 109).

103.2.4 A member does not have a pecuniary interest in relation to a matter if that member's interest in the matter is as a person to whom the Water Corporation offers, or proposes to offer, goods and services which are, or are proposed to be, offered generally by the Water Corporation on the same terms and condition as that to the member (section 110). The interest of a member's spouse or domestic partner must, if known to the member, be taken to be an interest of the member for the purposes of



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this section. A member of a Water Corporation who is convicted of an offence against section 109 is not capable of being or continuing to be a member of a Water Corporation for 7 years after that conviction (section 112). There is an appeal for this provision.

103.2.5 It is strongly recommended that Water Corporations maintain adequate directors', members' and officers' liability insurance, with the relevant component of the premium paid by the individual directors or members, to the extent that it may otherwise cover wilful breach of duty or breach of trust.

103.3 Register of interests

103.3.1 Water Corporation members, and officers nominated by a Water Corporation, must submit a "Primary Return" within 30 days of appointment or nomination. Thereafter, ordinary returns must be submitted on or before 31 July each year (see sections 113, 114 of the Water Act).

103.3.2 It would be safe and appropriate practice for the Water Corporation to nominate its Managing Director and senior personnel (at least) to comply with these disclosure requirements.

103.3.3 A sample of the type of Primary or Ordinary Return to be lodged follows. Please note that the forms are pursuant to the Water (Register of Interests) Regulations 2010 but these Regulations have not been amended. The forms are therefore samples only to take into consideration the amendments to the Water Act.



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PRIMARY RETURN FORM REGISTER OF INTERESTS

Water Act 1989, section 113 Water (Register of Interests) Regulations 2010, Schedule 1 Regulation 5

Primary Return

Notes: Please Read

1. Interests which you are required to register are prescribed in section 113 of the Water Act 1989.

2. If there is not sufficient space on this form for all of the information you are required to register, you may attach additional papers for that purpose. Each paper is to be signed and witnessed in the same manner as this return.

3. Please complete this form by typewriter or block capitals.

……………………………………………………………………………………………….(Surname)

…………………………………………………………………………………(First or other names)

Authority:

Details of Registrable Interests:

1. The name of any company or other body, corporate or unincorporate, in which you hold any office whether as director or otherwise at the date of this return.

…………………………………………………………………………………………………………....

…………………………………………………………………………………………………………....

2. The name or description of any company, partnership, association or other body in which you hold a beneficial interest exceeding $2000 in value.

…………………………………………………………………………………………………………....

…………………………………………………………………………………………………………....

3. The address or description of any land in the district of the Water Corporation or in a district which adjoins that Water Corporation's district in which you hold any beneficial interest (other than by way of security for any debt).

…………………………………………………………………………………………………………....

…………………………………………………………………………………………………………....



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4. A concise description of any trust in which you hold a beneficial interest or of which you are trustee and in which a person related to you by blood or marriage holds a beneficial interest.

…………………………………………………………………………………………………………....

…………………………………………………………………………………………………………....

5. Any other substantial interest (whether of a pecuniary nature or not) of yours or of a person related to you by blood or marriage, of which you are aware and which you ought reasonably to consider might appear to raise a material conflict between your private interest and your public duty as a member or nominated officer (as the case may be).

…………………………………………………………………………………………………………....

………………………………………………………………………………………………………….... Signature of person making return: ……………………………………………………………………… Signature of witness: ……………………………………………………………………… Date: ………………………………………..



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ORDINARY RETURN FORM REGISTER OF INTERESTS

Water Act 1989, section 114 Water (Register of Interests) Regulations 2010, Schedule 2 Regulation 6

Ordinary Return

Notes: Please Read

1. Interests which you are required to register are prescribed in section 114 of the Water Act 1989.

2. Information disclosed in a previous return, if still accurate, is not required to be repeated.

3. If there is not sufficient space on this form for all of the information you are required to register, you may attach additional papers for that purpose. Each paper is to be signed, dated and witnessed in the same manner as this return.

4. Please complete this form by typewriter or block capitals.

……………………………………………………………………………………………….(Surname)

…………………………………………………………………………………(First or other names)

Authority:

Details of Registrable Interests in relation to the return period:

1. The name of any company or other body, corporate or unincorporated, in which you held an office as director or otherwise.

…………………………………………………………………………………………………………....

…………………………………………………………………………………………………………....

2. The name or description of any company, partnership, association or other body in which you hold a beneficial interest exceeding $2000 in value.

…………………………………………………………………………………………………………....

…………………………………………………………………………………………………………....

3. The address or description of any land in the district of the Water Corporation or in a district which adjoins that Water Corporation’s district in which you hold any beneficial interest (other than by way of security for any debt).

…………………………………………………………………………………………………………....

…………………………………………………………………………………………………………....



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4. A concise description of any trust in which you hold a beneficial interest or of which you are trustee and in which a person related to you by blood or marriage holds a beneficial interest.

…………………………………………………………………………………………………………....

…………………………………………………………………………………………………………....

5. Particulars of any gift of $2000 or more in value received by you from a person other than a person related to you by blood or marriage.

…………………………………………………………………………………………………………....

…………………………………………………………………………………………………………....

6. Any other substantial interest (whether of a pecuniary nature or not) of yours or of a person related to you by blood or marriage, of which you are aware and which you ought reasonably to consider might appear to raise a material conflict between your private interest and your public duty as a member or nominated officer (as the case may be).

…………………………………………………………………………………………………………....

…………………………………………………………………………………………………………....

Signature of person making return: ………………………………………………………………………

Signature of witness: ………………………………………………………………………

Date: ………………………………………..

"Return period" in relation to the ordinary return of a member of a Water Corporation or a nominated officer means:

a. if the last return of the member or nominated officer was a primary return, the period between the date of that primary return and the next 30 June; or

b. if the last return of the member of nominated officer was an ordinary return the period between the date of that ordinary return and the next 30 June.



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104 CRIMINAL LIABILITY

An individual director or member will be responsible for any negligent or criminal acts or omissions committed by them personally.

Ordinarily, a member is not personally liable for the negligence or criminal acts of a corporation or authority. However, some legislation may make an individual member or officer of an authority personally liable for either civil or criminal conduct. For example:

The OH&S Act provides for liability of officers of employers under many sections of the OH&S Act;

Other legislation may contain provisions for liability where a member or officer aids, abets, counsels, or procures the commission of an offence by the authority.

Usually, in these cases, some direct action of the officer personally must to be shown, and the intention of the officer may be relevant.



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PART 9 - DOCUMENT CONTROL AND MANAGEMENT

105 PUBLIC RECORDS ACT 1973

105.1 General

105.1.1 The Public Records Act 1973 (“PR Act”) establishes a public records office for the better preservation, management and utilisation of the public records of the State (section 3). A public record is any record made or received by a public officer in the course of his or her duties (section 2(1)) and any record received or made by a court or person acting judicially in Victoria.

105.1.2 Section 19 of the PR Act makes it an offence for any person to remove, sell, damage or destroy a public record. Consequently, officers or members of Water Corporations should be careful of what they write.

105.2 Operation

105.2.1 The obligation under the PR Act is to transfer to the custody of the Public Record Office a public record in possession which has been in existence for 25 years and has ceased to be required to be readily available for use. Otherwise:

(a) sensitive documents containing private or personal information may be declared by the appropriate Minister not to be available for public inspection for a period specified in a declaration (section 9(1) PR Act);

(b) the Minister may declare that any specific record or records of a specified class may not be available for public inspection for a period specified in a declaration being a period of not more than 30 years after the date of their transfer to the Public Record Office (section 10 PR Act);

(c) the keeper of public records must provide reasonable facilities for the public inspecting and obtaining copies of these public records (section 11(1) PR Act); and

(d) the author of any of these public records who might otherwise be subject to defamation or breach of confidence allegations are specifically protected by the Act if access is granted to the public (section 20A PR Act).

105.2.2 The Keeper of the Public Records issues standards under section 12 of the PR Act. In conjunction with these standards, the Public Records Office prepares Authorities to guide public officers and authorities on the retention and disposal of public documents. The relevant Standard and Authority for Water Corporations is the Public Record Office Standard PROS 00/01 and the General Retention and Disposal Authority for Records of Water Authority Functions” Version 2010.



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106 EVIDENCE ACT 2008

106.1 General

106.1.1 The Evidence Act 2008 replaces the Evidence Act 1958. The legislation provides a structure for how evidence is made available, established and produced under Victorian law. If an officer of a Water Corporation has an issue arising under this legislation, legal advice is best obtained.

106.1.2 The Evidence Act 2008 introduced changes to the law of evidence in Victoria based on a model adopted by the Commonwealth and NSW. The Evidence Act 2008 commenced on the 1 January 2010.

106.2 Potential application

106.2.1 The Evidence Act 2008 sets out who is qualified to witness statutory declarations/affidavits. It includes a long list for the purposes of statutory declarations and a shorter and more qualified (in a legal sense) list for other documents.

106.2.2 A Water Corporation or its officers may be summoned to give evidence or produce documents in court. Most courts and tribunals are able to issue subpoenas and summonses to witness calling for a person to give oral evidence and/or to produce documents in his or her possession or control. Failure to comply with a subpoena or summons potentially renders the person liable to be dealt with by the relevant court for contempt. Further, a person who might be present in a trial or enquiry may be called to give evidence and if he or she declines to do so may be treated as if he or she was served with a subpoena.

107 LIMITATIONS OF ACTIONS ACT 1958

107.1 General

107.1.1 The Limitations of Actions Act 1958 (“LA Act”) creates periods within which legal action must be taken by or against persons in relation to particular actions.

107.1.2 In some cases the courts have jurisdiction to increase these relevant periods. Also different pieces of legislation, specific to an area, have different time limits. A Water Corporation should act quickly to obtain advice in relation to any particular issue to ensure limitation periods are not exceeded.

107.2 Operation

The following periods of limitation under the LA Act may be relevant:

107.2.1 2 years

An action to recover any penalty or forfeiture recoverable by a virtue of any enactment. The penalty does not include a fine to which a person is



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liable on conviction of a criminal offence (sections 5(5)(a) and (b) LA Act).

107.2.2 6 years

(a) Actions in contract and actions to recover any sum recoverable by a virtue of enactment (other than penalty or forfeiture) (section 5(1)(a) LA Act).

(b) An action for damages for negligence, nuisance or breach of duty (section 5(1A)). For personal injury actions that relate to the death of or personal injury to a person refer to Part IIA of the LA Act to see if this Part applies.

(c) A claim for conversion or detention of goods (section 6 LA Act).

107.2.3 15 years

(a) An action upon any judgment (section 5(4) LA Act) or an action for recovery of any land (section 8 LA Act).

(b) An action on a speciality (a form of deed). Notably, execution of documents/contracts under seal as a deed may therefore extend the time for action (section 5(3) LA Act).

107.3 Adverse possession

107.3.1 Section 7AB of the LA Act provides that adverse possession can no longer be claimed against an Authority within the meaning of the Water Act. This section was inserted into the LA Act by the Water (Governance) Act 2006 and is applicable from 18 October 2006.

108 FREEDOM OF INFORMATION ACT 1982

108.1 Introduction

108.1.1 The Freedom of Information Act 1982 (“FOI Act”) imposes obligations on Water Corporations that are extensive. The information that follows is divided between "Practical Procedures" and strict "Legislative Requirements".

108.1.2 It should be noted that the Minister is a separate agency unrelated to Water Corporations.

108.1.3 The term “document” includes any information however stored; eg, on disk, in a computer, on film etc.

108.2 Controlling legislation

108.2.1 The controlling legislation in Victoria in relation to allowing access to public documents is the FOI Act, the Freedom of Information Regulations 2009 (“FOI Regs”) and, to a lesser degree, the Public Records Act 1973 and the Health Records Act 2001.



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108.2.2 Water Corporations are prescribed authorities and agencies for the purpose of the FOI Act.

108.3 FOI Commissioner

108.3.1 On 6 March 2012, the Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012 (“FOI Commissioner Act”) was assented to.

108.3.2 The FOI Commissioner Act makes substantial changes to the FOI Act including to establish a Freedom of Information Commissioner.

108.3.3 The FOI Commissioner is due to commence on 1 December 2012 unless proclaimed earlier. The function of the FOI Commissioner is to:

(a) conduct reviews of decisions by agencies;

(b) receive and handle complaints; and

(c) monitor compliance by agencies with professional standards.

108.4 Water Corporation professional standards

108.4.1 The FOI Commissioner Act inserts Part IB into the FOI Act, which:

(a) provides that the Minister may develop professional standards relating to the conduct of agencies in performing functions under the FOI Act and for the administration of the FOI Act;

(b) requires principal officers and any officer or employee of an agency concerned in the operation of the FOI Act, to comply with these professional standards - (as at October 2012 no professional standards have been drafted).

108.4.2 The FOI Commissioner Act does not change any of the substantive grounds for giving or refusing access to documents.

108.4.3 The FOI Commissioner Act does, however, abolish the internal review process.

108.5 Practical procedures and processing requests

108.5.1 Accepting an application

The FOI Manager should ensure that staff who deal with members of the public at first instance, when making an FOI application, are conversant with the fundamental FOI process. The process is described at www.foi.vic.gov.au. The application must be in writing or can be lodged electronically (see website above). The FOI Act makes it incumbent upon the Water Corporation to assist an applicant to make a valid application and to identify the type of document to which access is required (refer Legislative Requirements). It is recommended that a standard form of application be kept at reception (available on website above).

http://www.foi.vic.gov.au/



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108.5.2 Considering a request

(a) The Water Corporation should establish an appropriate system for processing all FOI applications. This will involve a distribution system and timelines. Applications must be processed as soon as is reasonably possible.

(b) The FOI Manager should maintain a register to record all applications (refer Legislative Requirements).

108.5.3 Identifying a document or information sought

(a) After receiving a FOI request, the FOI Manager should consider what category or categories of document is/are being sought. Generally, what will be sought is access to a document or documents or access to other relevant information which has been electronically stored.

(b) The Water Corporation is under an obligation to create documents from electronically stored information (section 19 FOI Act). In addition, an agency may negotiate with an applicant for the creation of a meaningful document as a means to compromise the request even where it does not otherwise exist in a separate document. The type of access to be given such information must, therefore, be considered (refer Legislative Requirements). Further, the FOI Manager should consider what documents it is reasonable to provide having regard to the difficulty of locating and collating documents and, if necessary, refuse the request (refer Legislative Requirements). This is a difficult area; do not refuse requests without appropriate legal advice.

(c) It is reasonable to refuse access to documents if such access would unreasonably interfere with the normal working operation of the Water Corporation. There is a need to be careful in making that decision because the FOI Commissioner (replacing the Ombudsman) has power to consider whether the decision was reasonable. There are many factors to consider (section 25A FOI Act).

108.5.4 Liaising with other officers

In forming a decision as to whether to grant access to documents or other information, the FOI Manager should liaise with other relevant officers. In particular, it is important that he or she liaise with the Electronic Data Processing (“EDP”) Manager regarding the type of information and the form of access to information contained in an electronically stored manner.

108.6 To grant access or to refuse access

108.6.1 The FOI Officer, after due consideration, will need to make a decision as to the granting of access to documents. The decision will range from a grant of total access and provision of documents or document parts; a



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decision to defer or transfer to another agency; or a decision to refuse in total.

108.6.2 In relation to the decision to grant access:

(a) The FOI Manager must determine in what form access will be granted to EDP information or in what form the documents will be provided (refer Legislative Requirements). If the EDP information is capable of being reproduced in written form, that is required.

(b) The applicant should be notified of the decision, the form of access and the charge for such access (refer Legislative Requirements). This information should be recorded on the FOI register.

(c) The decision to grant access must be notified to the applicant within 45 days of receiving the request or there is a deemed refusal of the request.

108.6.3 The Water Corporation can provide documents with certain deletions if such deletions relate to information for which an exemption is claimed or which is irrelevant to the request (refer Legislative Requirements).

108.6.4 In certain very narrow circumstances, access may be deferred (section 24 FOI Act). The applicant should be notified of the period of deferment within 45 days of the application (refer Legislative Requirements).

108.7 Charges where access is granted

108.7.1 Where access is granted to documents or to EDP information, an initial decision must be made as to the level of charges, whether they should be reduced or waived (refer Legislative Requirements). The process of raising charges is so complicated it is often more sensible to waive charges except where the volume of documents is large.

108.7.2 In general, charges must be reasonable and in accordance with the Freedom of Information (Access Charges) Regulations 2004 (“FOI Access Regs”). However, there is no maximum charges designated for access to EDP information (refer Legislative Requirements). Deposits can be required in some cases (refer Legislative Requirements).

108.7.3 Charges may be reduced or waived where the documents are provided pursuant to a routine request, where they are made available in the general public's interest; where an applicant is impecunious; where the documents are made available to another government instrumentality; or where the documents made available contain information relating to the personal affairs of the applicant (refer Legislative Requirements).

108.8 Level of charges

108.8.1 A Water Corporation can charge for written transcripts, mailing costs, copying costs, supervision and time spent. All multi requests are to be treated as one request (refer Legislative Requirements).



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108.8.2 The applicant must be notified in writing of the charge and of the right to withdraw the application if the charge is greater than the standard amount prescribed by the FOI Access Regs.

108.9 Decision to refuse access and other relevant matters

108.9.1 Specific exemptions to the right to access are set out in sections 14 and 28 to 38A of the FOI Act. For specific discussion regarding exempt documents, refer Legislative Requirements.

108.9.2 The Terrorism (Community Protection) Act 2003 has added an exemption for documents affecting national security, defence or international relations.

108.9.3 The decision to refuse access must be notified to the applicant within 45 days of the date of receipt of the FOI application, but must be notified as soon as possible after the request. If the decision is to refuse access to any document/s, the Water Corporation must notify the applicant of its decision, the basis for the decision, the identity of the decision maker and the right of review (refer Legislative Requirements).

108.9.4 The FOI Manager can transfer a request to other agencies where he/she can identify that the document requested is in the possession of the other relevant agency and the request is more closely related to the other agency’s affairs (refer Legislative Requirements). The transfer must be effected within 14 days of the receipt of the request.

108.9.5 In relation to the correction of or amendment to personal records:

(a) personal records which relate to the personal affairs of the applicant can be amended by altering information contained in the record, changing records, adding other records, adding applicant's amendments or by adding a notation (refer Legislative Requirements) the form of request is contained in the Legislative Requirements; and

(b) if the request to correct or amend a personal record is refused, the Water Corporation must provide a written statement giving reasons, findings of fact and identity of the decision maker and any rights of review and appeal within 30 days from the date of receiving the request (refer Legislative Requirements). These details should be recorded in the Register.

108.10 Legislative requirements

108.10.1 Obligations of Water Corporations

(a) A Water Corporation is required to comply with the provisions of the FOI Act by virtue of section 5(1) of the FOI Act. Pursuant to this section, the Water Corporation is a “Prescribed Authority” for the purposes of the FOI Act.



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(b) The obligations of Water Corporations are set out in the FOI Act and the guidelines provided pursuant to the provisions of the FOI Act and the FOI Regs.

108.11 Handling requests for access

108.11.1 Who may apply?

Any person may, without any particular reason, apply for access to documents or other information, eg, information stored on computer, tape etc (section 19 FOI Act). However, some documents, because of age or because they are in the public domain already, are not accessible.

108.11.2 What constitutes an accessible document or other information

The definition of the term “document” is very broad (section 5(1) FOI Act). In many circumstances, documents held by subcontractors/consultants to the agency are captured by a request.

108.11.3 Decision making and policy

The decision to grant access to documents or access to other information by a Water Corporation effectively vests in the Principal Officer or person(s) delegated by the Principal Officer to make the decision (section 26 FOI Act).

108.11.4 Exempt documents

(a) The right of access by a member of the public is a general one under section 13 of the FOI Act, but it is subject to the specific exemptions set out in section 14 of the FOI Act (eg, a document available to public access) and set out in Part IV of the FOI Act, ie, cabinet documents, documents containing matters communicated by another State; internal working documents; law enforcement documents; documents subject to legal professional privilege; documents affecting personal privacy, documents relating to trade secrets; documents containing information obtained in confidence; certain documents arising out of Companies and Securities' Legislation and documents to which secrecy provisions apply.

(b) Pursuant to section 67 of the FOI Act, any documents relating to personal affairs of the applicant himself/herself will be accessible notwithstanding that they came into existence prior to the commencement of the FOI Act.

108.11.5 The Water Corporations duties

(a) Sections 13 to 27 and 51 of the FOI Act establish the rights and obligations of the Water Corporation.

(b) Water Corporations must assist an applicant to make a proper request; to locate documents; to transfer a request promptly if necessary; to give access; to notify reasons for a decision; to give



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access in the particular form sought where possible; to ensure that only authorised persons make the decisions.

(c) Where access is denied or deferred, it must notify its findings, identify the decision maker and notify the right of review.

108.11.6 Form of request

(a) Section 17 of the FOI Act establishes the criteria for making a request.

(b) That request must be in writing and provide sufficient information to identify the document or documents required. However, sections 17(3) and 17(4) of the FOI Act, place a duty on the Water Corporation to assist with all requests which do not comply with the FOI Act. For example, requests unaccompanied by the fee, or requests that ask for answers to questions rather than access to documents. In addition, it is the spirit of the legislation that full assistance should be given to an applicant in relation to a request, even a valid request which may be unclear or too wide. Care should be taken to clarify all requests.

(c) Although there is no requirement for a standard form of request, it is recommended that the Water Corporation should develop a standard request form and make it available at reception (available on www.foi.vic.gov.au).

108.11.7 Routine requests

Pursuant to section 22(1)(g) of the FOI Act, where a document is available as part of the normal course of administration of the Water Corporation, a request should be treated as a routine request registered as such and the charge otherwise assessable, waived.

108.11.8 Protection from defamation proceedings

The Water Corporation and its representatives are protected from defamation proceedings and/or breach of confidence when providing documents requested under the legislation (section 62 FOI Act).

108.11.9 Register to be kept

The Water Corporations have an obligation to record each and every request for a document requested under FOI Act and a register should be established for this purpose.

108.11.10 Form of access

(a) Section 23 of the FOI Act states in what form access to a document must be given (eg, inspection, provision of copy document etc).

(b) It will be necessary for the delegated officer to identify whether a specific request is generic, eg, a broad request for all documents.

http://www.foi.vic.gov.au/



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In this event, the Water Corporation should consider what is reasonable to provide. Consideration should be given to whether the documents can be easily identified having regard to the difficulty to locate and collate such documents.

(c) Section 23(3) of the FOI Act provides that it is reasonable to refuse access if it unreasonably interferes with operations. In this event it may be appropriate to arrange inspection of such documents by the applicant.

108.11.11 Notification to external persons/entities

Pursuant to sections 33 and 34 of the FOI Act, a request for documents which relate to personal privacy or business of Government (including documents of a business nature received from an external commercial entity) cannot be accessed (they may be exempt documents) unless the relevant commercial entity or Government instrumentality is first notified in order to provide, the opportunity of objecting to the request being granted and setting out the grounds for the objection.

108.11.12 Transfer to other agencies

In certain circumstances, the request for access can be transferred to another agency (section 18 FOI Act). The Water Corporation can transfer the request to another agency where a particular document is not in the possession of the Water Corporation but the Water Corporation can identify that such document may be in the possession of the other relevant Agency. A transfer of the request to another Agency must be effected within 14 days of the receipt of the request. The receiving Agency must then respond to the applicant within 45 days of its receipt of the request.

108.11.13 Time limits

(a) The general rule in section 21 is that the Water Corporation must respond to a request as soon as possible (but no later than 45 days) of receiving the request.

(b) Where the request relates to the amending or correcting of the personal affairs of the applicant under section 39 of the FOI Act the reply must be given within 30 days.

108.11.14 Deferred access

Pursuant to section 24 of the FOI Act, access may be deferred in certain very limited circumstances, eg, the documents are prepared for presentation to Parliament. In this situation, the Water Corporation should advise the applicant within 45 days of the decision but, even if the decision is positive, access can be deferred. Where possible, the Water Corporation should inform the applicant of the likely period of deferment.



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108.11.15 Granting of access

(a) Where access is granted under the provisions of the FOI Act, such decision should be noted in the Register. The Applicant should be notified:

(1) of the decision (section 21 FOI Act);

(2) of the form of access (section 23 FOI Act); and

(3) of the charge for such access (section 22 FOI Act).

(b) If the charge is likely to be greater than the charge prescribed by the FOI Regs, then the Water Corporation should enquire as to whether the applicant desires to proceed with the request (section 22(3) FOI Act).

108.11.16 Deletion

Pursuant to section 25 of the FOI Act, the Water Corporation is able to provide documents with certain deletions. Such deletions may be effected to a page of the document or if the document consists of many pages, some of the pages themselves may be deleted. Such deletions would relate to information contained in documents which are claimed to be exempt or contain material irrelevant to the request.

108.12 Handling requests involving use of computers

108.12.1 Electronically stored information

(a) Essentially, the same law that applies to access of documents, applies to access to electronically stored information.

(b) Section 19 of the FOI Act provides that in cases of EDP, documents are to be created from the information stored. This departs from the general rule that a Water Corporation is not required to create documents for the purpose of access.

108.12.2 Access types

Pursuant to section 23(3), a Water Corporation may refuse documents in written form but may provide access in another form, such as on computer terminal or VDU.

108.12.3 Charges

(a) There is no maximum charge designated for access to EDP information. If the information is available at low cost, that method should be used. Section 22(1)(d) allows for reasonable costs to be charged and this should be taken into account.

(b) In calculating the relevant charges, it is necessary to establish a charge structure which is similar to the Government Computing Service. It is clearly important that the FOI Manager forms a close



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working relationship with the EDP Manager so that the FOI Manager can discuss, in appropriate circumstances, the form of access, the appropriate charges etc.

(c) It is important to note that in the case of EDP, a document is generated from the information and therefore access is given to information.

108.13 Charges for access

108.13.1 Waiver or reduction of charges

Generally, charges are calculated in accordance with the provisions of section 22 of the FOI Act. Charges may be reduced or waived in certain circumstances:

(a) where the document is provided pursuant to a routine request eg, where the documents are normally made available in the course of the Water Corporation's normal business (section 22(1)(g) FOI Act);

(b) where the document is made available in the general public's interest or benefit (section 22(1)(h)(i) FOI Act);

(c) where an applicant is impecunious eg, health care card holders and the request is for access to a document containing information relating to the personal affairs of the applicant (section 22(1)(i) FOI Act);

(d) where the applicant is a member of the Legislative Assembly or of the Legislative Council of Victoria (section 22(1)(h)(ii) FOI Act); or

(e) where the document is made available containing information relating to the personal affairs of the applicant (section 22(1)(h)(iii) FOI Act).

108.13.2 Level of charges

(a) Pursuant to the guidelines, a Water Corporation can charge for written transcripts, mailing costs, copying costs, supervision and time spent.

(b) All multi requests from an applicant must be charged and treated as one request.

(c) Generally, there is a need to itemise identifiable costs, supervision and other costs.

(d) No charge can be made in respect of determining whether or not to grant access but a charge can be made for retrieving a document, copying it etc.



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108.13.3 EDP charges

(a) The FOI Manager should determine, in conjunction with the EDP Manager, the reasonable costs for supplying access.

(b) Deposits can be applied in some cases (section 22(4) FOI Act). In these cases, the requirement to respond within 45 days of the request does not commence until the deposit has been paid by the applicant (section 22(5) FOI Act).

108.13.4 What the applicant must be told regarding charges

(a) Notification of the charge must be in writing (section 22(2) FOI Act).

(b) If the charge is to be in excess of the standard amount prescribed by the FOI Regs, the applicant must be notified in writing so that the applicant has the chance to withdraw the application (section 22(3) FOI Act). In this circumstance, the applicant must be notified of the name of the person who calculated the charge and also, the applicant's right of appeal.

(c) If the applicant is to pay a deposit, the applicant may discuss with the Water Corporation practical alternatives (section 22(6) FOI Act).

108.13.5 Refunds

There are no specific provisions to provide refunds, but pursuant to the guidelines, refunds should be made where a deposit has been paid and documents have not been provided or where the applicant pays a deposit and subsequently negotiates a withdrawal or reduction of the charges.

108.14 Water Corporation correction or amendment to personal records

108.14.1 Who can request amendment?

(a) Generally, personal records are those which relate to the personal affairs of that person.

(b) Pursuant to section 39, where a document containing personal information is released to the person who is the subject of that information, that person is entitled to request the correction or amendment of information which is inaccurate, incomplete, out of date, or where it would give a misleading impression. In the case of a deceased person, that person's next of kin can make such a request.

108.14.2 Form of request

(a) A request must be made in writing, must specify the incorrect information that the person wants corrected or amended, must specify what amendments or corrections are sought, must provide



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particulars of the matters which are relied upon for the correction or the amendment to be effected and must provide an address for correspondence (section 40 FOI Act).

(b) In these cases, a response must be given by the Water Corporation within 30 days instead of the normal 45 day period (section 43 FOI Act).

108.14.3 Types of amendments

(a) A Water Corporation may, in its discretion, make an amendment to the records by either altering the record or by adding an appropriate notation on the record (section 41 FOI Act).

(b) Amendment is made either by altering, changing records, adding other records, adding the applicant's amendments or by adding a notation.

(c) Pursuant to the Guidelines, the decision whether to amend or correct any personal record should be determined by the nature of the information and the evidence available. There are two types of relevant information:

(1) factual, routine information; and

(2) opinion and evaluative type information.

(d) Records should always be kept.

108.14.4 Refusal

If the Water Corporation refuses to correct or amend a personal record, it must provide a written statement giving its reasons, findings of fact, identity of the decision maker and any rights in respect of review and appeal (section 45 FOI Act).

108.15 Publication requirements: Part II statement

108.15.1 Publication

(a) Pursuant to section 7(1) of the FOI Act, a responsible Minister or agency (ie, the Water Minister) has the responsibility to publish certain statements annually, as follows:

(1) A statement which sets out the particulars of the organisation and functions of the Water Corporation including decision making powers and other powers affecting members of the public.

(2) A statement of categories of documents that are maintained by the Water Corporation.



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(3) A statement of material that has been prepared by the agency for publication for inspection by members of the public.

(4) A statement of literature available by way of subscription.

(5) A statement establishing the Freedom of Information procedures including designations of the officer(s) responsible.

(6) A statement which lists all relevant bodies that have been established to advise the Water Corporation.

(7) A statement as to whether the Water Corporation maintains a library or reading room that is available to the public.

(b) The section does not require publication of any information which would otherwise be exempt pursuant to the Act (section 7(3) FOI Act). A Water Corporation must include the published information in its annual report (section 7(4) FOI Act).

108.15.2 Documents available for inspection and purchase

(a) Pursuant to section 8(2) of the FOI Act, a Water Corporation shall publish a list of all documents which the Water Corporation uses to make decisions or recommendations or to provide advice with respect to rights, privileges or benefits or obligations, penalties or other detriment and have the same available for inspection and for purchase by members of the public. Further, a Water Corporation must publish on an annual basis, the relevant statement specifying the documents that are available.

(b) Documents which contain exempt matters are not required to be made available provided that where practicable, a document altered to the extent necessary to exclude the exempt matter may be prepared.

108.15.3 Public not to suffer detriment for unpublished document

Pursuant to section 9 of the FOI Act, a member of the public shall not suffer detriment in relation to a failure to observe any rule, policy, guideline or practice of the Water Corporation, if the relevant documents setting out such rule, policy, guideline or practice had not been made available or had not been included in the relevant statement required under section 8 of the FOI Act at the relevant time.

108.15.4 Statement of documents to be published

(a) Pursuant to section 11 of the FOI Act, the Water Corporation shall publish annually a statement essentially specifying relevant documents relating to reports received by the Water Corporation detailing advice and recommendations from bodies from within and outside the Water Corporation. Such documents and reports may



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relate to such things as studies, technical matters, environmental matters.

(b) The purpose of this section is to allow members of the public to ascertain the process that the Water Corporation uses in developing policies and operating practices. The types of documents required to be listed in a section 11 statement are:

(1) documents prepared outside the agency for consideration by the Minister;

(2) documents prepared outside the agency for consideration by the Water Corporation;

(3) documents prepared within the Water Corporation for consideration by the Minister; and

(4) documents prepared within the Water Corporation for consideration by the Water Corporation.

(c) Those reports falling into categories (1) and (3) are the more substantial reports. Such documents containing exempt matter are not required to be published (section 11(3) FOI Act).

108.15.5 Statements required to be published

(a) Statement 1 - Organisations and functions where these affect the public.

(b) Statement 2 - Categories of documents - referring to the recording system of the agency.

(c) Statement 3 - Publicity services - referring to how the agency handles requests under the FOI Act.

(d) Statement 4 - FOI arrangements - referring to material generally available from the agency.

(e) Statement 5 - Procedures and guidelines - referring to policy manuals and documents interpreting statutes.

(f) Statement 6 - Report literature - referring to final reports, statements or submissions prepared by or for the Water Corporation.

108.15.6 A person's right to request specification of a document

(a) Section 12 of the FOI Act establishes the right of a person to provide a notice specifying a document which should have been included pursuant to sections 8 and 11 of the FOI Act.

(b) The Principal Officer shall notify the person within 21 days of receiving the notice whether the document will be specified in the next statement (section 12(2) of the FOI Act) and if adverse to the



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person's claim, such notice shall state the finding and reasons. It shall inform the person of the right to apply to VCAT for review and details regarding the same (section 12(3)(b)).

108.16 Statistical reporting

108.16.1 Report to parliament by Water Corporation and ministers

(a) In order to comply with section 64 of the FOI Act, which compels the Minister administering the FOI Act to prepare a report on an annual basis regarding the operation of the FOI Act to be submitted to Parliament, a Water Corporation should maintain proper records of its operations in relation to the area of FOI.

108.16.2 Statistics to be collected.

(a) A two tier approach to the collection of information has been adopted. Accordingly, there are two types of forms:

(1) The individual request form - which is a separate form to be completed for each request and returned when all action on a request is completed.

(2) The annual return form - which is a separate form to be completed once a year to collect the qualitative information required by the Attorney General and the Public Service Board.

(b) All completed forms are to be returned to the FOI Policy Branch, Law Department on the appropriate dates.

108.17 Review of decisions

108.17.1 The new FOI Commissioner Act substantially changes the rights of review under the FOI Act. Under the new regime:

(a) Internal reviews have been abolished.

(b) The Victorian Ombudsman will no longer have jurisdiction to deal with complaints under the FOI Act.

(c) The new FOI Commissioner will have power to review:

(1) decisions by agencies refusing to grant access to documents in accordance with a request;

(2) decisions by agencies to defer providing access to documents;

(3) decisions by agencies not to waive or reduce an application fee; and

(4) decisions of an agency not to amend a document containing information relating to the personal affairs of a person.



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(d) The new FOI Commissioner is unable to review the following decisions:

(1) decisions made by a Minister or principal officer of an agency; and

(2) decisions by a agency refusing to grant access to cabinet documents (section 28) or documents affecting national security (section 29A).

108.17.2 Applications for review

An applicant may apply to VCAT for a review of a decision:

(a) of a principal officer or a Minister refusing access to a document;

(b) of the FOI Commissioner refusing to grant access to a document;

(c) of the FOI Commissioner deferring the provisional access to a document;

(d) of an agency refusing to grant access to a document if the FOI Commissioner has made a determination under section 49G(1);

(e) of an agency refusing to grant access to cabinet documents (section 28) or documents about national security (section 29A);

(f) by a principal officer deferring the provision of access; or

(g) about access charges;

108.17.3 Right of appeal of Water Corporation

(a) Where a Water Corporation seeks leave to appeal to the Supreme Court from an order of VCAT, the Minister responsible for the Water Corporation must publish in the Victoria Government Gazette and table in Parliament a statement of reasons for seeking leave to appeal pursuant to section 65AB of the FOI Act. The Minister is required to publish the reasons within 10 days and table them within 7 sitting days from when the summons for leave to appeal is filed with the Supreme Court pursuant to section 65AB(2).

(b) Where a Water Corporation decides to seek leave to appeal, it must provide its reasons for doing so in writing to the Minister responsible for the Water Corporation as soon as practicable after it makes the decision, and no later than the day on which the summons for leave to appeal is filed with the Court, according to sections 65AB(3) and (4) of the Act.

108.18 Non communication of decision

108.18.1 Where a Principal Officer has not notified an applicant of the decision to grant access within the relevant time stipulated, then the applicant may



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make an application to VCAT under section 50 of the FOI Act after the last day of the relevant time period that the decision has lapsed (section 53(1)).

108.18.2 A Water Corporation may apply to VCAT for an extension of time to consider a request (section 53(6)).

108.18.3 The onus appears to rest with the Water Corporation in establishing that the refusal of a request is justified (section 55).

108.19 Exemptions

108.19.1 Documents affecting personal privacy

(a) This exemption is meant to protect the privacy of the personal information of individuals. Pursuant to section 33(2) however, the exemption does not extend to an applicant who is the subject of the application. This in turn however, is subject to provisions governing the disclosures of medical or psychiatric information previously referred to. It should be noted that personal information relating to a person’s occupation is not personal information as protected by section 33; eg, a Water Corporation Officer’s salary or entitlements.

(b) If a Water Corporation decides to release personal information, the effected person can object to its disclosure. The procedure is that the Water Corporation must notify the person affected of the decision and the right of review at VCAT.

(c) Where a Water Corporation refuses to grant access to a document because it involves the unreasonable disclosure of information relating to the personal affairs of any person and an application has been made to VCAT for review of the decision, the Water Corporation must (if practicable) give written notice to the person to whom the information relates as soon as practicable after being notified of the application, according to section 53A of the FOI Act. The written notice must inform the person to whom it is directed of their right to intervene in the review and request the person to inform VCAT within 21 days whether the person intends to intervene. The right to intervene is also pursuant to section 29A of the Victorian Civil and Administrative Tribunal Act 1998.

(d) The test to be used pursuant to section 33(1) of the FOI Act is whether disclosure would involve "an unreasonable disclosure of information relating to the personal affairs of a person". This test will always involve a subjective value judgment. There are significant factors to be taken into account including:

(1) the nature of the information;

(2) the likely consequences of disclosure including physical harm; and



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(3) whether there are any over-riding public interest considerations.

(e) When considering whether disclosure of information relating to the personal affairs of any person would be reasonable, a Water Corporation must also take into account whether disclosure would (or would be reasonably likely to) endanger the life or physical safety of any person according to section 33(2A). “Information relating to the personal affairs of any person” includes information from which any person can be identified, including their names and addresses pursuant to section 33(9).

(f) In appropriate circumstances, the personal affairs of an individual may be deleted so that the balance of the document may be made available.

108.19.2 Exemption for internal working documents

(a) Section 30 of the FOI Act makes exempt documents concerning the decision making and policy making processes of a Water Corporation, where that disclosure is contrary to the public interest. The exemption does not apply to the record of a final decision or to purely factual material (section 30(3) FOI Act).

(b) Section 30 is not limited to documents in the final form. It may also include draft documents (section 30(4) FOI Act).

(c) There are four categories of documents excluded from the operation of section 30:

(1) Documents used for the purpose of making decisions or recommendations within the terms of section 8(1) eg, documents used in making decisions to persons outside the agency, such as manuals (section 30(2) FOI Act).

(2) Documents used in enforcing enactments or schemes within the terms of section 8(1) eg, handbooks.

(3) Documents which only qualify for an exemption based on purely factual material (section 30(3) FOI Act)l.

(4) Documents which are records of final decisions, orders or rulings given in the exercise of adjudicative functions (section 30(4) FOI Act).

108.19.3 Documents containing matter communicated by other governments

Pursuant to section 29 of the FOI Act, documents relating to the dealings with, or information supplied by, other governments may be exempt. Under this provision, exemption would apply if disclosure would be contrary to the public interest and would prejudice relations between State and Commonwealth or any other State or Territory or would reveal information communicated in confidence by another government.



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108.19.4 Cabinet documents

Pursuant to section 28 of the FOI Act, a class of document rather than the material contained in the document may be exempt. Such documents are Cabinet documents. Examples of Cabinet documents are the Cabinet Record or Cabinet Committee Minutes. If one of the purposes of a document is for the submission to Cabinet, then it is included as an exempt document (section 28(1)(b)).

108.19.5 Law enforcement documents

Pursuant to section 31 of the FOI Act, law enforcement documents may be exempt if they are likely, if released, to prejudice the administration of justice including disclosing confidential information sources.

108.19.6 Information of a business, commercial or financial nature

(a) Pursuant to section 34(1) of the FOI Act, documents acquired by a Water Corporation from a business, commercial or financial entity which would disclose information about the entity may be exempt. The exemption will apply where the document or information relates to trade secrets, other matters of a business, commercial or financial in nature, and disclosure would be likely to expose the entity unreasonably to disadvantage.

(b) In deciding whether the disclosure of information would expose an entity unreasonably to disadvantage for the purpose of section 34(1) the Water Corporation should take the following into account (amongst other things):

(1) whether the information is generally available to competitors;

(2) whether the information could be disclosed without substantially harming the competitive position of the entity; or

(3) whether the public interest favours the disclosure of the information.

(c) The Water Corporation may hold information about an ‘agency’ which is defined in the FOI Act as a department, council or a prescribed authority. Where the information relates to certain matters set out in section 34(4) of the FOI Act, it is exempt. That information includes trade secrets, business, commercial or financial information of a trading agency, the disclosure of which would expose the agency unreasonably to disadvantage. It also includes certain scientific and technical research undertaken by an agency and certain examination papers.

108.19.7 Confidential information

Information received by an agency confidentially (not being information of the nature in section 34) is exempt if it is reasonably likely to impair the ability of the agency to receive similar information in the future. An example is a document identifying a water cheat.



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109 INFORMATION PRIVACY

109.1 General

109.1.1 There are three statutes that govern the privacy of information in Victoria, namely:

(a) the Privacy Act 1988 (Cth) (“Commonwealth Privacy Act”);

(b) the Information Privacy Act 2000 (Victoria) (“Victorian Privacy Act”); and

(c) the Health Records Act 2001 (Victoria).

109.1.2 The Health Records Act applies only to health service providers (public or private sector). The Victorian Privacy Act applies only to the Victorian public sector, the Commonwealth Privacy Act applies to Commonwealth agencies and private sector organisations. Previously, former licensees would have been captured by both Acts, but now they are incorporated in the Water Act, the Victorian Privacy Act would apply.

109.1.3 The main focus of the Victorian Privacy Act is to ensure that the public sector behaves in a certain manner when collecting and storing and using information. The central object of the legislation is to “promote the responsible and transparent handling of personal information in the public sector” (see section 5(c)).

109.1.4 Water Corporations should develop and implement information management policies to ensure that they meet the requirements of the Victorian Privacy Act.

109.2 What does the information privacy legislation seek to achieve?

109.2.1 Section 1 of the Victorian Privacy Act states that the legislation aims to:

(a) establish a regime for the responsible collection and handling of personal information in the Victorian public sector;

(b) provide individuals with rights of access to information about them held by organisations, including information held by contracted service providers;

(c) provide individuals with the right to require an organisation to correct information about them held by the organisation, including information held by contracted service providers;

(d) provide remedies for interferences with the information privacy of an individual; and

(e) provide for the appointment of a Privacy Commissioner.

109.2.2 The preamble to the Commonwealth Privacy Act provides that:

(a) as a result of Australia’s entry into the International Covenant on Civil and Political Rights, Australia has undertaken to adopt



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legislative measures to give effect to the right of persons not to be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence; and

(b) as a result of Australia’s membership of the Organisation for Economic Co-operation and Development (“OECD”), Australia has informed the OECD that Australia will take into account in its domestic legislation, principles concerning the protection of privacy and individual liberties set forth in the OECD’s Guidelines.

109.3 Who does the information privacy legislation apply to?

109.3.1 Section 9 of the Victorian Privacy Act notes that the Act applies to:

(a) a Minister;

(b) a Parliamentary Secretary, including the Parliamentary Secretary of the Cabinet;

(c) a public sector agency;

(d) a municipal council;

(e) a body established or appointed for a public purpose by or under an Act;

(f) a body established or appointed for a public purpose by the Governor in Council, or by a Minister, otherwise than under an Act;

(g) a person holding an office or position established by or under an Act (other than the office of member of the Parliament of Victoria) or to which he or she was appointed by the Governor in Council, or by a Minister, otherwise than under an Act;

(h) a court or tribunal;

(i) the Victorian Police Force;

(j) a contracted service provider, but only in relation to its provision of services under a State contract which contains a provision of a kind referred to in section 17(2);

(k) any other body that is declared, or to the extent that it is declared, by an order of the Governor in Council and Gazetted; and

(l) any service provider who has contracted with any of the above and has agreed to comply with the Information Privacy Principals (“IPPs”).

109.3.2 There are exemptions (see Division 2). These relate to the judiciary, quasi-judicial bodies and law enforcement agencies.



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109.3.3 The Commonwealth Privacy Act applies to an individual, body corporate, partnership, any other incorporated association or a trust with an annual turnover exceeding $3 million per year, or which:

(a) discloses personal information about another individual to anyone else for a benefit, service or advantage;

(b) provides a benefit, service or advantage to collect personal information about another individual from anyone else;

(c) is a contracted service provider for a Commonwealth contract; or

(d) is related to a company with an annual turnover of more than $3 million.

109.4 What is the timeline for the application of the legislation?

109.4.1 The Victorian Privacy Act was enacted on 1 September 2001. Compliance was required from 1 September 2002.

109.4.2 The Commonwealth Privacy Act required compliance from 21 December 2001.

109.5 What information is protected?

109.5.1 Both the Commonwealth and Victorian Privacy Acts protect “personal information”.

109.5.2 The Victorian Privacy Act defines “personal information” as information or an opinion, regardless of whether part of a database, about an individual whose identity is clear or can be reasonably ascertained from the information or opinion, recorded in any form and whether true or not.

109.5.3 “Sensitive information” under the Victorian Privacy Act means information or opinion about an individual’s racial or ethnic origin, political opinions, membership of a political, professional or trade association, religious or philosophical beliefs, membership of a trade union, sexual preferences, or criminal record that is also personal information. It excludes information protected under the Health Records Act 2001, which relate to the health and health services provided to an individual.

109.5.4 The Commonwealth Privacy Act defines “personal information” as information or opinion, regardless of whether recorded in a database, its truth and its recording medium about an individual whose identity is clear or can be reasonably ascertained from the information or opinion.

109.5.5 The Commonwealth Privacy Act also protects “sensitive information” which means information or opinion, which is personal information, about an individual’s racial origin, political opinions, membership of any political, trade or professional association or trade union, religious or philosophical beliefs, sexual preferences or criminal record.



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109.5.6 The Commonwealth Privacy Act contains:

(a) Information Privacy Principles (“IPPs”) which Australian and ACT Government agencies need to comply with; and

(b) National Privacy Principles (“NPPs”) which some private sector organisations need to comply with,

in relation to personal information they hold.

109.5.7 Water Corporations created under the Water Act are not an “agency”, nor are they private sector organisations for the purpose of the Commonwealth Privacy Act. However, while the Commonwealth Privacy Act should not apply to Water Corporations, the information about the IPPs and NPPs have been retained in this Manual for completion.



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109.6 What needs to be complied with?

Privacy Principle

Victoria Commonwealth

1 - Collection An organisation must not collect personal information unless it is necessary for one or more of its functions or activities.

Information can only be collected by lawful and fair means that are not unreasonably intrusive.

An organisation must not collect personal information unless it is necessary for one or more of its functions or activities.

Information can only be collected by lawful and fair means that are not unreasonably obtrusive.

The organisation must take reasonable steps to ensure that the individual is aware of the organisation’s identity and contact details, ability to access the information, to whom the organisation usually discloses information, any legal requirement to collect information, and what happens if information is not collected.

2 - Use and disclosure

An organisation should not use or disclose personal information about an individual for a purpose other than the primary purpose of collection unless specific circumstances apply, including where the individual has consented to such use or disclosure

An organisation should not use or disclose personal information about an individual for a purpose other than the primary purpose of collection unless specific circumstances apply, including where the individual has consented to such use or disclosure

3 - Data quality

An organisation must take reasonable steps to ensure that the personal information collected, used or disclosed is accurate, complete and up to date.

An organisation must take reasonable steps to ensure that the personal information collected, used or disclosed is accurate, complete and up to date.

4 - Data security

An organisation must take reasonable steps to protect the information it holds from misuse and loss and from unauthorised access, modification or disclosure.

An organisation must take reasonable steps to destroy or permanently de-identify personal information if it is no longer needed.

An organisation must take reasonable steps to protect the information it holds from misuse and loss and from unauthorised access, modification or disclosure.

An organisation must take reasonable steps to destroy or permanently de-identify personal information if it is no longer needed.



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Privacy Principle


5 - Openness An organisation must set out in a document clearly expressed policies on management of personal information, which is to be made available to anyone who asks for it.

An organisation must take reasonable steps to let the person know, generally, what sort of personal information it holds, for what purposes, and how it collects, holds, uses and discloses that information, upon request by a person.

An organisation must set out in a document clearly expressed policies on management of personal information, which is to be made available to anyone who asks for it.

An organisation must take reasonable steps to let the person know, generally, what sort of personal information it holds, for what purposes, and how it collects, holds, uses and discloses that information, upon request by a person.

6 - Access and Correction

If an organisation holds personal information about an individual, it must provide access to the information upon request by that individual, unless specific circumstances apply to exempt the organisation’s requirement to provide such access.

If an organisation holds personal information about an individual, it must provide access to the information upon request by that individual, unless specific circumstances apply to exempt the organisation’s requirement to provide such access.

7 - Unique identifiers

An organisation must not assign unique identifiers to individuals unless to do so is necessary to enable the organisation to carry out any of its functions efficiently.

An organisation must not adopt as its own unique identifier a unique identifier assigned by another organisation, unless it is necessary to enable the organisation to carry out any of its functions efficiently, it has obtained the individual’s consent, or it is an outsourcing organisation adopting the identifier created by a contracted service provider in the performance of its obligations to the organisation under a State contract.

An organisation must not assign unique identifiers to individuals unless to do so is necessary to enable the organisation to carry out any of its functions efficiently.

However, an organisation may adopt a “prescribed identifier” in prescribed circumstances.

An Australian Business Number or an individual’s name is not an “identifier” for the purpose of this Principle.



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Privacy Principle


8 - Anonymity Wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering transactions with an organisation.

Wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering transactions with an organisation.

9 - Transborder data flows

An organisation may transfer personal information about an individual to someone (other than the organisation or individual) who is outside Victoria only if:

(a) the organisation reasonably believes that the recipient of the information is subject to a law, binding scheme or contract which effectively upholds principles for fair handling of the information that are substantially similar to the IPPs; or

An organisation may transfer personal information about an individual to someone (other than the organisation or individual) who is in a foreign country only if:

(a) the organisation reasonably believes that the recipient of the information is subject to a law, binding scheme or contract which effectively upholds principles for fair handling of information that are substantially similar to the National Privacy Principles (“NPPs”); or

(b) the individual consents to the transfer; or

(c) the transfer is necessary for the performance of a contract between the individual and the organisation; or

(d) the transfer is necessary for the conclusion or performance of a contract concluded in the individual’s interest between the organisation and a third party; or

(b) the individual consents to the transfer; or

(c) the transfer is necessary for the performance of a contract between the individual and the organisation; or

(d) the transfer is necessary for the conclusion of a contract in the individual’s interest between the organisation and a third party; or

(e) if it is not practicable to obtain consent, but if it were, the individual would be likely to give it; or

(f) the organisation has taken reasonable steps to ensure that the information which it has transferred will not be held, used or disclosed by the recipient inconsistently with the IPPs.

(e) it is impracticable to obtain the individual’s consent but if it were, the individual would be likely to give it; or

(f) the organisation has taken reasonable steps to ensure that the information which it has transferred will not be held, used or disclosed by the recipient of the information inconsistently with the NPPs.



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Privacy Principle


10 - Sensitive information

An organisation must not collect sensitive information about an individual unless the individual has consented, the collection is required by law, or the collection is necessary to prevent or lessen a serious and imminent threat to the life or health of any individual where the individual whom the information concerns is physically or legally incapable of giving consent or cannot physically communicate consent to the collection.

An organisation must not collect sensitive information about an individual unless the individual has consented, the collection is required by law, or the collection is necessary to prevent or lessen a serious and imminent threat to the life or health of any individual where the individual whom the information concerns is physically or legally incapable of giving consent or cannot physically communicate consent to the collection.

109.7 Consequences of non-compliance

109.7.1 The penalties for non-compliance may be significant. Under the Victorian Privacy Act, the Victorian Privacy Commissioner has the power to issue compliance notices to organisations found to have acted in contravention of the IPPs, section 44. It is an offence for an organisation to fail to comply with such a compliance notice, and fines of up to $300,000 apply to bodies corporate (section 48). The decision of the Privacy Commissioner to issue a compliance notice is reviewable by VCAT (section 49).

109.7.2 Under the Commonwealth Privacy Act, the Commonwealth Privacy Commissioner has the power to investigate complaints concerning breaches of the NPPs and has the power to make determinations based on the outcome of the investigation, which may include declaration upholding the complaint and awarding compensation for the loss or damage suffered as a result of the breach of the NPPs (section 52).

109.8 Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth)

109.8.1 This Bill seeks to amend the Commonwealth Privacy Act to implement the Government’s response to the Australian Law Reform Commission’s report titled “For your Information: Australian Privacy Law and Practice”.

109.8.2 The Bill will amend the Commonwealth Privacy Act to:

(a) create Australian Privacy Principles replacing the IPPs for the public sector and the NPPs for the private sector;

(b) introduce more comprehensive credit reporting with improved privacy protections;

(c) introduce new provisions on privacy codes and credit reporting code; and



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(d) introduce additional safeguards for protection of privacy, enhanced notification, quality and dispute resolution.

109.8.3 As at the publication of this updated Manual, the Bill had not received Royal Assent.

110 ADMINISTRATIVE LAW - REVIEW OF AUTHORITY DECISIONS

110.1 General

110.1.1 Persons affected by a decision of a Water Corporation may have a legal right to have the decision reviewed by a judicial body. Generally, this right only arises when the public authority acts without power, beyond its power or in abuse of the power, duty or discretion entrusted to it. Powers, duties and discretions held by Water Corporations are fettered by certain legal principles. The abuse of those principles give rise to rights of review.

110.1.2 Typical abuses of power include acting for a purpose other than that with which the Water Corporation has been charged, acting unreasonably, taking into account irrelevant considerations or failing to take into account relevant considerations, failing to afford a hearing when required to do so or acting with bias. These overarching principles may apply to a Water Corporation even though they are not specified in any Act.

110.1.3 Often, more than one right of review or remedy exists. Sometimes, the aggrieved person must make a choice between the remedies or rights of review. In other circumstances, multiple remedies can be pursued simultaneously.

110.1.4 There are generally five ways in which an aggrieved person can seek to challenge the decision of a Water Corporation:

(a) He or she can seek the intervention of a third person, eg, the relevant Minister or the Ombudsman, to direct the Water Corporation how to act. The Minister does not in all cases have power to so direct. The Ombudsman does not have that power. This however is not a form of legal review, but rather a common, practical approach.

(b) He or she can ask the Water Corporation to revisit the decision. This is often pursued especially if new evidence can be produced.

110.1.5 The remaining three forms of review are legal avenues of redress.

110.2 Judicial review by way of issuing a common law writ

Legal proceedings can be issued in the traditional way, seeking one or more remedies including injunctions (restraining the Water Corporation from acting in a particular way), or writs of certiorari (quashing a decision), prohibition (preventing implementation of a decision), writ of mandamus (ordering that the Water Corporation carry out its duty) or declarations (declaring the state of the law). These remedies ask the court to review the decision of the Water Corporation. The court



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will not substitute its view for the decisions of the Water Corporation, but may direct that the Water Corporation review the matter based on a certain process. This form of legal redress is not often pursued as it is costly and time consuming. The procedures are steeped in history and modern judicial process has produced more robust solutions.

110.3 Appeal to VCAT

110.3.1 Various matters under the Water Act are subject to such an appeal. VCAT hears the matter completely afresh and re-decides the matter as if it were the initial decision maker.

110.3.2 Section 45 of the Victorian Civil and Administrative Tribunal Act 1998, entitles a person affected by a decision to apply to the decision maker for written reasons as a precursor to making an application to VCAT for review of the decision. The structure and content of the written reasons become very important documents should the matter later proceed to VCAT. VCAT has all the powers of the original decision maker and consequently VCAT is not restricted to hearing the same evidence that the decision maker considered. VCAT effectively rehears the matter anew.

110.3.3 Hearings before VCAT are not conducted under strict rules of evidence and are conducted, as far as possible or appropriate, in an informal manner.

110.3.4 The decision of VCAT may be subject to appeal to the Supreme Court but only on the grounds of an error of law. There is no right of appeal because the party disagrees generally with VCAT's decision.

110.4 Review under the Administrative Law Act 1978

110.4.1 The common law procedures for judicial review became so convoluted that in 1978 the Victorian Government passed legislation to streamline procedures for judicial review. There is some debate as to whether this Act applies to Water Corporations and even on a more expansive view, will only apply in particular cases or types of decisions and not generally. Under the Administrative Law Act (“AL Act”), review of a Water Corporation’s decision can be processed much more speedily and cheaply than under traditional common law methods of redress.

110.4.2 If the AL Act does apply in a particular case to a Water Corporation then:

(a) the Water Corporation is obliged to provide written reasons for its decision upon request made within 30 days of the decision being communicated;

(b) the person affected may then, within 30 days of receiving the written reasons, apply to the Supreme Court for review of the decision. The Court will only entertain the application if it can be shown that, on balance, there is likely to have been an error of law committed by the Water Corporation. The Court will undertake a preliminary assessment of the situation and if on balance is satisfied that there is a real prospect that an error of law occurred,



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will take such steps as are necessary to preserve the person's rights until full hearing of the matter can be undertaken. Until the final hearing, which may take some time, the Water Corporation may be prevented from implementing its decision.

111 INTELLECTUAL PROPERTY

The term "intellectual property" is one that you often hear. In a legal sense it means rights in things which cannot be seen or felt - "intangible assets". These rights protect inventiveness or creativity, together with the endeavour expended. They fall into several well established categories which are generally recognised world-wide - copyright, patents, trademarks, registered designs, circuit layouts, plant breeders rights, the right to protect confidential information and trade secrets and the right to prevent "passing off". A brief summary of each of these rights and their most important features follow.

112 COPYRIGHT ACT

112.1 Main features

Copyright is created and regulated by the Copyright Act 1968 (Cth). The main features of copyright in Australia are set out below:

112.1.1 Copyright subsists in literary, artistic, dramatic and musical works (section 32), as well as other subject matter such as films (including video), sound recordings and radio and television broadcasts (sections 89-92). Performances are also protected to a limited degree.

112.1.2 Computer programs are classed as "literary works" (section 10(1)) and original computer programs are protected by copyright. This protection extends not only to the source code, but also compiled and machine-readable versions.

112.1.3 Copyright is a collection of exclusive rights which are granted to the copyright owner (sections 31 and 85-88). These include the right to:

(a) reproduce a literary, dramatic, musical or artistic work (section 31, section 10(1)). This includes making an adaptation, a translation or derivative work;

(b) make a direct copy of a film or video (section 86), sound recording (section 85) or radio or television broadcast (section 87);

(c) first publish a literary, dramatic, musical or artistic work (section 29);

(d) perform a work in public (section 27), and to communicate the work to the public (section 31 and definition of “communicate” in section 10).

112.1.4 Hire out a recording of a literary, musical or dramatic work, or a copy of a computer program (section 38).

112.1.5 Registration is not necessary to create copyright. In fact, there is no registration system in Australia.



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112.1.6 Copyright lasts for various periods, depending on the nature of the subject matter. Copyright in literary, dramatic and musical works and artistic works (other than photographs) lasts for the life of the creator, plus 70 years (section 33). Copyright in other subject matter, lasts 70 years from the date of first publication. For works that have not been published, copyright is perpetual until they are published, at which time copyright will last for another 70 years after the date of first publication (section 33).

112.1.7 Copyright subsists in a work or other subject matter that is “original”. This is not tested against any subjective judgment about the artistic merits of the work. Rather, the author of the work must have exercised some skill and labour and must not have copied the work from someone else.

112.2 What things will attract copyright?

112.2.1 Copyright protects the expression of ideas. Therefore, anything reduced to material form, provided it is original and substantial, is likely to be protected by copyright. Virtually every document, photograph, drawing, sound recording and film which it deals with will be the subject of copyright. More common items could include:

(a) maps;

(b) plans, blueprints and sketches;

(c) buildings (these are classified as artistic works);

(d) computer software;

(e) databases;

(f) advertisements;

(g) marketing materials; and

(h) internal memoranda.

112.2.2 Sound recordings, television or radio broadcasts and films will often embody other works protected by copyright. For example, a sound recording of a song will embody both a musical work (the melody) and a literary work (the lyrics) comprising the song in the sound recording. Similarly, a film will embody a number of underlying works which are also protected by copyright, including the script (a literary work), any artistic works that might appear in the film and musical works (the film’s score).

112.3 When is copyright infringed?

112.3.1 Copyright in an original work or other subject-matter is infringed where any person, other than the owner of copyright, exercises any of the owner’s exclusive rights, or authorises any other person to exercise those rights, without the consent of the copyright owner (sections 36 and



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101). When a copyright owner publishes a copy of a work without any express prohibition or restriction on copying, this should not be taken to be a consent.

112.3.2 However, copyright is not a complete monopoly right. For infringement to occur, the work or other subject matter must have actually been "copied" by the other person. This means that the infringer must have used or have had some sort of access to the copyright work when creating a new work. This may be established through evidence of the defendant’s access to the plaintiff’s protected work. In the absence of such evidence, such causal connection may be inferred from the objective similarity between the plaintiff’s and defendant’s works or, at least, in relation to a substantial part of the copyrighted work or other subject matter.

112.3.3 Whether what the infringer copied is a substantial part of the copyright owner’s protected work is assessed on a qualitative basis having regard to all the circumstances (particularly in relation to the copyright owner’s work or other subject matter). For example, if what the infringer took was an unoriginal part of the copyright owner’s work, then it is less likely that the part taken was a substantial part of the copyright owner’s work.

112.3.4 In the absence of direct evidence of copying, the objective similarity between the works may permit a court to infer that the infringer copied the copyright owner’s work, a presumption to be rebutted by the infringer through evidence of independent creation.

112.3.5 Sometimes, it has been proved that even though the infringer was not consciously aware of the work, he or she had access to that work and had subconsciously used it in producing the infringing copy. This is fairly typical in cases involving breach of copyright in music.

112.3.6 The Copyright Act also provides certain specific defences to infringement. These defences include fair dealing for the purpose of reporting news, the purpose of criticism and review, the purpose of research and study, and for the purpose of parody and satire.

112.3.7 Other defences are specific to particular works, such as computer programs, and may also affect the rights of the copyright owner.

112.4 What is protected?

112.4.1 There is a fundamental principle that copyright does not protect ideas alone, but merely the way in which those ideas are expressed. Anyone can create another work using the same ideas without breaching copyright, but cannot copy the actual words, pictures or sounds which were used.

112.4.2 By the same token, it would be easy to avoid breaching copyright if it only protected against slavish copying. Consequently, copyright is breached not only by copying the whole of a work, but also copying a "substantial part" of the work. This trick here is that the law judges what is a "substantial part" not by its quantity but by its quality (section 14). In some cases, only a very small part of a copyright work has been taken,



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yet it has been considered to be substantial (eg, a few lines of a computer program which were critical to its operation, a few highly recognised bars of a melody).

112.4.3 For literary, dramatic and musical works, copyright is also infringed by the making of an "adaptation" of the work (section 10). There are numerous cases arguing over the difference between taking the idea behind a work and creating a different version of the way in which those ideas were expressed in the work. Often this involves the misappropriation of screen plays, music and poetry and other forms, including parodies.

112.4.4 As noted above, copyright does not protect ideas alone. Nor does copyright protect facts and information. Copyright may subsist in a database of factual information. However, whether the copyright is infringed will depend on whether the part that was copied is a substantial part of the copyright-protected database. What constitutes a “substantial part” of the database will be assessed against the originality of what was copied. Therefore, where the manner in which information can be conveyed by the authors to the readers is limited, the limited manner of expression means that what was copied may not be a substantial part of the database. Hence, the copyright owner’s copyright may not be infringed.

112.5 Ownership of copyright

112.5.1 The first owner of any copyright in most works is the author (section 35(2)) or joint authors of the works (section 78). For films, sound recordings and broadcasts and other similar subject matter, the copyright owner is generally the producer. For photographs the owner is the photographer. For computer programs it is the programmer.

112.5.2 This principle can be varied in the following ways:

(a) Where works are created by an employee in the course of that person's employment, the copyright belongs to the employer (section 35(6)).

(b) There can be an agreement which provides that the copyright in the works, once created, will belong to another person (section 35(5)).

(c) Copyright can be assigned or licensed to another person. An assignment must be in writing and must be signed by the owner of the copyright. A non-exclusive licence need not be in writing, but can be implied from another arrangement, such as a contract, to produce the work for payment (section 10). However, an exclusive licence must be in writing signed by the owner authorising the person, to the exclusion of all others, to do an act that, by virtue of the Copyright Act, the owner would, but for the licence, have the exclusive right to do.

(d) Where a person has commissioned another person to make a film or a sound recording and pays the other person to do so, and the



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other person makes the film or sound recording, then the first person will own the copyright subsisting in the film, sound recording or broadcast (sections 97(3) and 98(3),

112.5.3 Copyright can be "divided up" so that only some, but not all, of the rights can be owned by or licensed to another person. It can also be divided up in terms of time and geographical area.

112.5.4 Importantly, when an independent contractor is engaged to create any work in which copyright will subsist, Water Corporations will not own that copyright, unless an agreement provides to the contrary, or there is an assignment in writing in favour of the Water Corporations. It is important that these aspects always be dealt with in the agreement, otherwise you may be forced later on to try to construct implied licences and other arrangements where these issues have not really been properly considered by the parties in the first place. Alternatively, the copyright owner may demand extra consideration for the assignment or licence. Obviously, it is better to avoid these doubts at the outset.

112.6 International aspects of copyright

112.6.1 Australia's Copyright Act is really no more than an enactment of its obligations under two international conventions to which it is a party. These are the Berne Convention and the Universal Copyright Convention.

112.6.2 Most nations are parties to either one or both of these Conventions. Both create the principle of "national treatment". Essentially, this means that:

(a) any work in which copyright subsists in Australia will also subsist in the other countries to the convention;

(b) any work in which copyright subsists in any other country to the Conventions will also subsist in Australia;

(c) issues of infringement and enforcement of copyright are dealt with under the law of the country where the alleged infringement takes place; and

(d) if there are any formalities required for the existence of copyright in another country (such as the United States where registration is required), in order to enforce copyright against an infringer in another country, it is necessary to comply with those formalities.

112.7 The copyright notice ""

112.7.1 This often-encountered symbol is not needed to create copyright in Australia. However, the Copyright Act provides that where a copy of a work or other subject matter, or its packaging or container, bears a label or mark asserting ownership of copyright at a particular time, it is presumed that this person was the copyright owner at that time, unless evidence to the contrary is presented.



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112.7.2 Under the Universal Copyright Convention, it is a prerequisite to international protection to have the following form of copyright notice on a work:

" [name of author] [year of first publication]"

112.8 Licences of copyright

112.8.1 The Copyright Act permits the copyright owner to license any of the rights to a third party.

112.8.2 A licence may be exclusive or non-exclusive. An exclusive licence must be in writing, signed by or on behalf of the owner or prospective owner of copyright and it must authorise the licensee , to the exclusion of all other persons (including the copyright owner) to do an act that, by virtue of the Copyright Act, the owner of copyright would, but for the licence, have the exclusive right to do.

112.8.3 The licence may be revocable or it may be irrevocable. It may be worldwide, or it may be limited in geographic area. The licence may be perpetual or it may be limited in the length of time the licence is granted. Further, the licence may stipulate whether or not the licensee is able to grant sub-licences of the rights licensed to the licensee and if so, on what terms the sub-licences may be granted.

112.9 Groundless threats of copyright infringement

The Copyright Act provides that persons aggrieved by unjustified threat of copyright infringement may apply to a court for remedies including damages and injunctions restraining the further threat of infringement.

112.10 Moral rights

112.10.1 The Copyright Act provides that moral rights subsist in a literary work, a dramatic work, a musical work, an artistic work or a cinematograph film (“work”). They do not subsist in a sound recording or a television or radio broadcast. These rights are separate from the copyright. Further, these rights are not economic rights but are personal rights of the author(s) of the work or other subject matter. Only individuals, not corporations, are conferred moral rights.

112.10.2 Moral rights comprise the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, being the right not to have the work or other subject matter subjected to “derogatory treatment”.

112.10.3 An author has a right of attribution in a literary, dramatic or musical work if the work is reproduced in material form, published, performed in public, communicated to the public. The author of an artistic work has the right of attribution in the work if the work is reproduced in material form, published, exhibited to the public or communicated to the public. The maker of a film has the right of attribution of authorship of the film if a copy of the film is made, the film is exhibited to the public or the film is communicated to the public.



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112.10.4 The author of the work may be identified by any reasonable form of identification unless the author has made it known that the author wishes to be identified in any particular way. The identification must be clear and reasonably prominent.

112.10.5 The author of a work has a right not to have authorship of the work falsely attributed. The Copyright Act defines in great detail the concept of “false attribution of authorship”. Essentially, false attribution of authorship includes the false implication that a person is the author of the work when that person is not the author of the work and to deal with the work knowing that the attributed person has been falsely attributed as the author.

112.10.6 The author of a work has the right of integrity of authorship in respect of the work, which is the right not to have the work subjected to “derogatory treatment”. The Copyright Act defines in great detail what amounts to “derogatory treatment”. Essentially, it comprises the doing of anything in relation to a work which results in a material distortion of, the destruction or mutilation of, or a material alteration to the work that is prejudicial to the author’s honour or reputation or the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation.

112.10.7 A person infringes the author’s moral rights if that person does an act which is contrary to statutory requirements in relation to each moral right. However, the right of attribution of authorship is not infringed if it was reasonable to not identify the author in the circumstances. The right of integrity of authorship is not infringed if it was reasonable in all the circumstances to subject the work to the treatment that would otherwise be derogatory of the work.

112.10.8 An author is entitled to several remedies, including an injunction restraining further acts that would otherwise infringe the author’s moral rights, damages for loss resulting from the infringement and an order that the infringing person makes a public apology for the infringement.

112.10.9 Moral rights are not capable of assignment. The author may consent to acts or omissions that would otherwise infringe the author’s moral rights. An employee may give consent for the benefit of his/her employer in relation to all works made or to be made by the employee in the course of employment. The consent must not be made under duress or as a result of any false or misleading statements.

113 PATENTS

113.1 Legislation

113.1.1 Patents are created by the Patents Act 1990 (Cth). They relate only to certain types of inventions which are determined by the application of old principles of English law.

113.1.2 An invention is capable of being protected by a patent if:

(a) it relates to a manner of manufacture. This means it must be something which creates an artificial state of affairs and has some



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basic ability to be commercially used. So things such as mere scientific discoveries or principles and things that have no immediate commercial utility are not patentable; and

(b) when compared to the technology which is known or published as at the date of the patent application, it is:

(1) "novel", which means that the invention or any other invention which is essentially equivalent to it has not been used or disclosed in public by any other person before that date (section 18(1)(b)). This includes use and disclosure even by the inventor if it has not been done under circumstances of confidentiality;

(2) "inventive", which means that it is not obvious to a person who is skilled in the same field;

(3) "useful", which means it must be capable of commercial exploitation; and

(4) it has not already been commercially exploited by the applicant or any other person. This does not include confidential disclosure for this such as research and development purposes.

113.1.3 The tests of patentability are complicated. However, the most important aspect to note is that if you were considering the possibility of applying for a patent for an invention, you must not make any public disclosure of that invention or any use of the invention before you apply for the patent. Otherwise, you will lose your rights.

113.2 Types of patents

113.2.1 There are two types of patents in Australia - standard patents and innovation patents.

113.2.2 A standard patent lasts for up to 20 years from the date the application was filed, whereas an innovation patent lasts for 8 years from the date the application was filed.

113.2.3 A standard patent can claim any number of monopolies in the features of an invention, whereas an innovation patent requires a lesser standard of inventiveness.

113.2.4 For these reasons innovation patents are often used for less complex or less important inventions. They are generally obtained more cheaply and quickly than standard patents.

113.3 How do you apply for a patent?

Applying for a patent is a complex process and can only be done by the owner of the patent or the inventor, or a patent attorney acting on their behalf. It is frequently preceded by a search to determine whether there are any other patents which would prevent the patentability of the relevant invention, or which may be infringed by the



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invention. For that reason we recommend that a patent attorney be consulted in this process. Only patent attorneys, not solicitors, can make patent applications on behalf of an inventor or a patent owner.

113.4 What rights are granted by a patent?

113.4.1 A patent gives the patentee the exclusive rights to "exploit" the invention and to authorise others to exploit the invention in Australia (section 13(1)). The exclusive rights are personal property of the patentee and may be mortgaged or assigned.

113.4.2 The word "exploit" generally means any form of commercial exploitation, however it is defined to include (Schedule 1):

(a) where the invention is a product - make, hire, sell or otherwise dispose of the product, offer to make, hire, sell or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or

(b) where the invention is a method or process - use the method or process or do any act mentioned in paragraph 6 in respect of a product resulting from such use.

113.4.3 Anyone who performs any of these acts in relation to a validly claimed invention in the patent without the consent of the patent owner infringes the patent.

113.4.4 Unlike copyright, the patent right is a "monopoly" and is not dependent upon actual copying by the infringer. Even if the infringer has never seen the patented invention or process, and is not aware that the patent exists, infringement will still occur.

113.5 Ownership of patents

113.5.1 Because patents are registered rights, the owner is the person who applies for registration.

113.5.2 The first person who is entitled to apply for registration is the inventor (section 15(1)(a)). However, where an invention has been created by an employee in the course of performing his/her duties of employment, the employer is entitled to become the owner.

113.5.3 In any other circumstances, the inventor must assign his or her right to another person. This assignment must be in writing and signed by the inventor.

113.5.4 Consequently, there may be difficulties where:

(a) the inventor is not an employee but an independent contractor or consultant;

(b) the employee creates an invention "after hours" in his or her own time, but which invention actually does relate to the employee's



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employment. In these situations, is the invention created in the course of that employment? or

(c) the employee has been engaged to fulfil a duty the employee owes to the employer to undertake research for the employer but without a positive duty to invent for the benefit of the employer.

113.5.5 It is important to deal with these issues in contracts. For that reason it is typical to find a clause in an employment contract which assigns all rights to apply for patents to the employer, whether or not the invention is created during the normal hours of employment.

113.5.6 In independent contractor agreements, and in joint venture development agreements, the parties should consider at the outset who will own any patents arising out of the development and if so, who will pay for those applications and to maintain the patents.

113.6 Infringement

113.6.1 A patent is only infringed where someone else exploits a product or a process which embodies all of the "essential integers" of the invention which is described in the patent application. Where an allegedly infringing patent or process does not adopt all of those integers identically, but adopts mere equivalents, it may still be deemed to be an infringement.

113.6.2 This will often involve difficult and complex questions. For this reason, patent litigation is often extremely expensive and lengthy.

113.6.3 Under certain circumstances, it may also be an infringement of a patent to supply articles to another person where the use of the article would infringe the patent.

113.7 Threat of legal action

A person who thinks that his/her rights under a patent have been infringed should be careful not to make groundless threats of legal action against the alleged infringer. Any person aggrieved by such a threat can take action against the person making the threat under section 128.

113.8 International aspects

113.8.1 Unlike copyright, patent rights do not automatically exist in other countries. It is necessary to register a patent in every country in which you are seeking protection.

113.8.2 Australia is a party to international conventions - the Paris Union and the Patent Co-operation Treaty. Each of these conventions gives a person who has filed a patent application in one country, 12 months in which to file the same application in another country without losing priority. However, the application must be examined in each country on its own merits. Whether it can be registered will depend on the particular laws of that country and also, whether the invention is considered to be novel and inventive in that country.



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114 DESIGNS

114.1 Legislation

114.1.1 There is a limited form of protection for the physical appearance of products under the Designs Act 2003 (Cth), which repealed and replaced the Designs Act 1906 (Cth).

114.1.2 A "design" in relation to a product means the overall appearance of the product resulting from one or more visual features of the product (section 5). A “product” is a thing that is manufactured or handmade. Further, a component part of a “complex product” may be a product for the purposes of the Designs Act if it is made separately from the product (section 6). A “visual feature”, in relation to a product, includes the shape, configuration, pattern and ornamentation of the product and excludes the product’s feel and materials used in the product (section 7).

114.1.3 Important features of design protection are:

(a) design protection is obtained only by registration;

(b) the maximum period of protection is 10 years from the filing date of application for registration, provided that the registration of the protected design is renewed 5 years after the filing date of the design;

(c) typically, design protection is obtained for articles of everyday use, but it can be obtained for any form of manufactured item in two or three dimensions. This can even extend to the pattern of fabrics and everyday items such as chairs and kitchen utensils.

114.1.4 The design regime protects only features which are:

(a) visible to the naked eye (so, for example, integrated circuits are not protected); and

(b) visible externally when looking at a product (so, for example, internal features are not capable of being protected).

114.1.5 Protection extends only to the whole of a product or article, and any part of that product or article, if it is made separately. Therefore, it is possible to protect the internal workings of a product where the internal components are separately manufactured.

114.1.6 Design protection will not extend to articles which are purely functional, ie, their appearance is dictated solely by their function. However, there are very few articles that are in this category.

114.1.7 Registration is available only if a design is new and distinctive when compared to the prior art base (section 15(1)). The prior art base for a design consists of:

(a) designs publicly used in Australia;



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(b) designs published in a document within or outside Australia; and

(c) designs disclosed in an application filed before the first-mentioned design, and the documents disclosing the design are published before the application for the first-mentioned design.

114.1.8 Accordingly, it is essential to ensure that no public use or publication is made in Australia or overseas of the product to which the design relates before the application is filed.

114.2 Ownership of designs

114.2.1 The first owner of a design is the designer (section 13(1)). This is the person who actually creates the final design of the product itself, not anyone who contributed to the concept. Usually, this will be the person who drew the final drawings.

114.2.2 Typically, the author of a design will be an independent artist who has been engaged to do the drawings, or an employee of someone else. The Designs Act provides that where the author has been commissioned or the design is created in the course of employment, the owner will be the commissioner or the employer as the case may be (sections 13(2) and 13(3)).

114.2.3 Designs can be assigned, but the assignment must be in writing and signed by the assignor and assignee (section 11). The assignment should (but does not need to be) recorded on the Register of Designs (section 114(1)) by being lodged with the Registrar of Designs (via IP Australia).

114.3 Application, registration and examination

114.3.1 Under the Designs Act, if an application for registration is filed, it is checked for compliance with formalities. If the application complies, the design is registered. However, exclusive rights cannot be enforced until the design is examined to determine whether it is valid, including whether the design is new and distinctive when compared to the prior art base.

114.3.2 For the purpose of the Designs Act, the “prior art base” for the design (the “designated design”) consists of:

(a) designs publicly used in Australia;

(b) designs published in a document within or outside Australia:

(c) designs in relation to which each of the following criteria is satisfied:

(1) the design is disclosed in a design application;

(2) the design has an earlier priority date than the designated design; and



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(3) the first time documents disclosing the design are made available for public inspection under the Designs Act is on or after the priority date of the designated design.

114.3.3 An examination may be requested by the owner of the registered design or any interested person. Evidence as to the newness and distinctiveness of the design or the owner’s right to title may be filed and will be considered during the examination. Such evidence might take the form of photographs of the product in respect of which the design has been registered appearing at trade fairs or in promotional brochures.

114.3.4 If the design is valid, it is certified, and the owner may enforce its rights. Otherwise, the design will be removed from the Register.

114.4 Infringement

114.4.1 Unlike copyright, designs are a monopoly right and will be infringed whether the infringer actually copies the design or not (section 71(1)). In some cases the infringer may not even be aware that the design or the article to which it is applied exists.

114.4.2 A registered design is infringed if, during the term of registration and without the owner’s authority or licence, a person makes or offers to make a product, in relation to which the design is registered, which embodies a design that is identical to, or substantially similar in overall impression to, the registered design.

114.4.3 However, it can be difficult to establish infringement because the owner must show that the defendant’s product embodies a design that is identical to, or substantially similar in overall impression to the registered design.

114.4.4 To determine whether the allegedly infringing design is substantially similar in overall impression to the registered design, the two designs are compared in the context of their whole appearance. Greater weight is given to distinctive features than to other parts of the design (in the context of the whole of the appearance) and to similarities between the designs than to differences between them (section 19(1)).

114.4.5 The comparison is made on the basis of the court looking through the eyes of the so-called “informed user” to consider:

(a) the state of development of the prior art base;

(b) the owner’s statement of newness and distinctiveness submitted to the Registrar of Designs in the owner’s application that identifies particular features of the design as being new and distinctive;

(c) where only part of a design is substantially similar to another design, the amount, quality and importance of that part in the context of the design as a whole; and

(d) the freedom of the creator of the design to innovate.



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114.4.6 An “informed user” is a person who is familiar with the product to which the design in question relates and should also be a user of the class of product in question. Therefore, a designer or manufacturer is not likely to be an informed user merely because they design or manufacture the product. Similarly, the informed user is unlikely to be an ordinary consumer.


114.5.1 A person who thinks that his/her monopoly in a design has been infringed should be careful not to make groundless threats of legal action against the alleged infringer. Any person aggrieved by such a threat can take action against the person making the threat under section 77.

114.5.2 A threat of infringement may be unjustified where the owner claims infringement before the design has been certified as having been examined.


Like patents, designs must be registered in every country in order to obtain protection in that country. Under the Paris Union, to which Australia is a party, an applicant for registration in one country has 12 months in which to apply for registration in another member country without losing priority. However, the application must be processed and judged in accordance with the laws of the country, and in light of the existing registered designs in that country.

114.7 Overlap between copyright and designs

114.7.1 Often there is an overlap between copyright and designs because many designs rely on underlying drawings to give expression to the designs. Original drawings which embody designs are protected by copyright as artistic works.

114.7.2 The Copyright Act 1968 (Cth) contains several provisions that reflect Parliament’s desire to require designers to register their designs and rely solely on rights conferred by the Designs Act than on copyright in the underlying drawings.

114.7.3 Where copyright subsists in an artistic work (other than a building, model of a building or a work of artistic craftsmanship) which is reproduced in material form for the purpose of applying a design corresponding to the artistic work industrially to products and those products are sold, let for hire or offered for sale or hire, whether in Australia or elsewhere, and the design is either not registrable under the Designs Act or has not been registered under that Act or the Designs Act 1906 (Cth), then the copyright in the artistic work is not infringed by reproducing the artistic work on or after the day on which the products made to the corresponding design were first sold, let for hire or offered for sale or hire by embodying that corresponding design in a product.

114.7.4 The overlap provisions do not apply to a “work of artistic craftsmanship”. Whether a work is one of artistic craftsmanship will be determined objectively by the court, assisted by admissible evidence. The evidence



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of the person who created the work will be considered as but one of the factors that will determine the question.

114.7.5 An assessment of the aesthetic appeal of the work or assessing any harmony between the work’s visual appeal and its utility is not relevant to determining whether the work is one of artistic craftsmanship.

114.7.6 The determination relies on an assessment of the extent to which the work’s artistic expression, in its form, is unconstrained by functional considerations. Accordingly, the more unconstrained by functional considerations, the more likely the work will be one of artistic craftsmanship and therefore exempted from the copyright-design overlap provisions. Conversely, the more constrained the work was by functional considerations, the less likely it will be exempted from the copyright-design overlap provisions.

115 TRADE MARKS

115.1 Legislation

115.1.1 In Australia, unregistered and registered trademarks may be protected at common law under the principles of "passing off". The use of a trade mark (registered or unregistered) without the owner’s authority may be misleading or deceptive conduct under the Consumer Law. Registered trademarks are protected by the Trade Marks Act 1995 (Cth). This section deals with registered trademarks.

115.1.2 Water Corporations have developed, and will continue to develop, brands and logos and other similar devices to distinguish their goods and services. Because parts of their operation have a commercial aspect, they will be regarded as "trade" for the purposes of the Trade Marks Act and so some of these devices may be capable of registration under the Trade Marks Act.

115.1.3 Under the Trade Marks Act a trade mark is a “sign” used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person (section 17). Therefore, a trade mark denotes the owner of the trade mark as the source of the goods and/or services offered under the trade mark.

115.2 What can be registered?

The following types, or any combination thereof, of "signs" (section 6) can be registered as trademarks (section 6):

115.2.1 Letters, words, names, numerals.

115.2.2 Signatures.

115.2.3 Devices, brands, logos.

115.2.4 Mastheads and headings.



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115.2.5 Labels, tickets and aspects of packaging.

115.2.6 Shapes.

115.2.7 Colours, sounds and scents.

115.3 Information required in application

An application to register a trade mark should contain the following information:

115.3.1 Applicant’s name, ABN and address.

115.3.2 Applicant’s address for service.

115.3.3 Representation of the trade mark.

115.3.4 Type of trade mark.

115.3.5 Details of the series of trade marks (if applicable).

115.3.6 If a shape, sound, scent or colour mark, a description of the trade mark.

115.3.7 Specification of goods and/or services, classified in the appropriate class(es).

115.4 Eligibility for registration

115.4.1 In order to be capable of registration, a trade mark must be capable of distinguishing the applicant's goods or services (section 41(2)). Trademarks that are inherently capable of distinguishing the applicant’s goods or services satisfy this criterion (section 41(3)). Trade marks which are merely descriptive or have a direct reference to the character or quality of the goods or services, will not be capable of being registered, unless the applicant has evidence of use of the trade mark that establishes that the trade mark is in fact capable of distinguishing the owner’s goods and/or services (sections 41(5) and 41(6)).

115.4.2 The applicant’s trade mark must not be likely to cause deception or confusion by its very nature, eg, a mark which includes the word "Australian Made" when it is in fact used on imported goods, or "Leather" when it is used on garments which are not necessarily made of leather (section 43).

115.4.3 The applicant’s trade mark must not be substantially identical with or deceptively similar to another trade mark which has already been registered or for which someone has already applied for registration in respect of the same goods or services or goods or services which are closely related to them, or of the same general type (section 44). Accordingly, it is often useful to search the Trade Marks Register to determine whether the trade mark conflicts with registered or pending trademarks, before the application is made.



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115.5 Oppositions to registration

115.5.1 Once an application to register a trade mark is accepted, it is advertised in the Official Journal of Trade Marks. This triggers a 3 month window of opportunity for members of the public to oppose the registration on grounds specified in the Trade Marks Act.

115.5.2 If an opposition is filed, the application is suspended pending the outcome of the opposition. If the opposition fails, the trade mark is registered; otherwise, it is rejected.

115.6 Who owns a trade mark?

115.6.1 Ownership is based on being the first person to use the trade mark or where the mark has not been used, the first to conceive of it and apply for its registration (section 27(1)).

115.6.2 In the case of employees and independent contractors, often they will not be the owner of the mark, even though they had some hand in devising it, because they were not the first person to use it. However, where a non-employee creates a trade mark, it is worthwhile obtaining an assignment of the right to apply for the mark and also, where the mark consists of a logo or a literary work or some other work which might attract copyright, an assignment of that person's copyright in the mark.

115.7 Rights given by registration

115.7.1 Registration gives the owner of the mark the exclusive right to use it in Australia, in the course of trade, in connection with the goods or services for which it is registered. The owner may authorise others to use the mark (section 20). Registered trademarks are personal property and may be assigned with or without the corresponding goodwill.

115.7.2 However, for the right to continue, it is essential that the owner or an authorised user keep using the mark in the course of trade. If a mark is not used for a continuous period of 3 years, another person may have it removed from the Register and effectively "take" the mark for themselves.

115.8 How long do trade mark rights last?

A trade mark will be registered for 10 years from the date the application was filed (section 72), but can be renewed for successive periods of 10 years indefinitely, provided that renewal fees are paid (sections 75 and 77). As long as the mark remains distinctive and as long as it is used by the owner or an authorised user, it can remain registered.



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115.9 Infringement

115.9.1 A registered trade mark is infringed by another person who uses that or a mark which is substantially identical or deceptively similar to it in the course of trade in respect of:

(a) the goods and/or services for which the trade mark is registered (section 120(1)); or

(b) goods and/or services which are closely related or of the same general character as the goods and/or services for which the trade mark was registered (section 120(2)), unless the defendant shows that the use was not likely to deceive or confuse.

115.9.2 For trademarks which are well known in Australia, it is possible to infringe by using that trade mark or a substantially identical or deceptively similar trade mark, even if the infringing trade mark is used in respect of unrelated goods or services and because the trade mark is well known, the public are likely to connect the goods and/or services with the trade mark’s owner (section 120(3)). So for example, you could not use "McDonalds" or "Coca Cola" as a brand name for shoes. It is up to a court to decide under the circumstances whether a mark is well-known in Australia for these purposes.

115.9.3 However, for a mark to be infringed, the allegedly infringing trade mark must actually be used as a trade mark, ie, in order to distinguish someone else's goods or services. A good example of where a trade mark is not infringed is in comparative advertising. The statement that "my hamburgers are better than McDonalds" would not be an infringement of the McDonald's mark.

115.9.4 Often the issue of whether a mark is substantially identical or deceptively similar is difficult to determine. A court will look at not only the visual appearances of a mark, but for words, how they are pronounced.


A person who thinks that his or her trade mark has been infringed should be very careful not to make groundless threats of legal action against the alleged infringer. Any such person aggrieved by such a threat can take action against the person making the threat under section 129.

115.11 The "TM" and "®" symbols

115.11.1 The use of these symbols is often misunderstood. It is not necessary to use either symbol in order to protect a trade mark, and neither has a legally defined meaning in Australia.

115.11.2 Despite this, the symbols are generally accepted as meaning the following:

(a) "TM" means that a particular sign or logo is being used as a trade mark but it is not a registered trade mark. It is often worthwhile to use this symbol where registration has been applied for but not yet



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obtained, or simply where you wish to indicate that the particular symbol is to be regarded as distinctive and not just a general description; and "®" means that the trade mark is registered.

(b) Be wary of using the “®” symbol where a trade mark is not registered, because it is an offence in Australia to represent that a mark is registered in Australia where it is not. This can create problems where the symbol appears on packaging of products which are imported from overseas. Often the trade mark may be registered in the country where the products were manufactured, but not in Australia.

116 CIRCUIT LAYOUTS

116.1 Legislation

116.1.1 The Circuit Layouts Act 1989 (Cth) creates protection for the layout of integrated circuits (not integrated circuits themselves). Typically, these are things such as mask diagrams. It was enacted as a result of pressure brought by the United States on Australia following its Semi-Conductor Chip Protection Act, but it is not identical to that Act.

116.1.2 It is worthwhile being aware of this Act if a party creates its own hardwired electronic technology or engages other persons to do so, or enters into some arrangement to licence that type of technology.


116.2.1 There is no relevant international treaty. However, under the Circuit Layouts Act, a layout is capable of protection if it is made by an Australian or a resident of an "Eligible Foreign Country" or where the layout was first commercially exploited in Australia or an eligible foreign country. The Regulations list eligible foreign countries which are countries with similar legislation to Australia. These include the USA, the UK, China, New Zealand, Canada, Germany, France and most European countries.

116.2.2 However, this does not automatically mean that circuit layouts created in Australia will have protection under the laws of those other countries, although this is likely to be the case. It will depend on exactly what the laws of those other countries provide.

117 CONFIDENTIAL INFORMATION

117.1 Law

117.1.1 Often, trade secrets and other confidential information will not be easily protected by one of the recognised categories of intellectual property protection. For example, a trade secret may be valuable but may not be a patentable invention. Alternatively, because patents involve publication of the way in which an invention works (as a trade off for the monopoly protection granted under the patent system) it is often not desirable to obtain a patent, but it is better to keep the information secret. In these situations, copyright protection is inadequate because it



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protects only the way in which those secrets are expressed in a particular document, not the ideas and concepts behind the secrets themselves.

117.1.2 This gap is filled to some extent by laws which prevent the unlawful disclosure of confidential information or grant compensation where that has already happened.

117.2 What is protected?

117.2.1 In order to be protected as confidential information, that information must:

(a) be genuinely confidential, ie, not already in the public domain or readily obtainable without much effort from publicly available information;

(b) be disclosed only in circumstances where the person receiving the information knows or ought to know that it is confidential and is not to be used for unauthorised purposes; and

(c) be disclosed without authorisation and in a way which causes or is likely to cause damage.

117.3 When can information no longer be protected?

117.3.1 There is no specific time limit on the ability to protect information, so long as it remains secret.

117.3.2 If after a period of time, the confidential information genuinely falls into the public domain, it is no longer capable of protection. For this reason it is imperative that all persons who are made privy to the information are bound by obligations of confidentiality.

117.3.3 Where those persons are employees, the obligation is implied into the employment relationship and survives, to a certain extent, the termination of the relationship.

117.3.4 However, where there are independent contractors or other parties involved, it is often difficult to establish that they were made aware of the confidentiality of the information and that it was imparted to them for limited purposes only.

117.3.5 Under these conditions you should carefully consider the confidentiality agreement or undertaking being signed by the recipient. At the very least, there should be some sort of written memorandum addressed to the recipient, receipt of which is acknowledged by the recipient and which:

(a) clearly identifies the relevant information;

(b) clearly states that the information is being imparted in circumstances of confidence and is not to be disclosed without permission;



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(c) clearly defines the purpose for which the information is to be used and states that it must not be used for any other purpose; and

(d) provides that when that purpose has been met, all documents which embody any of the information should be returned or destroyed. This should include all computer discs and forms of electronic storage.

117.3.6 If the courts are asked to stop unlawful disclosure, they will inevitably look at:

(a) whether the information genuinely confidential; and

(b) what steps has the person who claims the information to be confidential taken in the past to protect it.

117.3.7 For that reason it is essential that organisations which create confidential information have a policy which enables that information to be readily identified and ensures that it is kept confidential. This includes not only having confidentiality agreements with outsiders, but also:

(a) conducting continuous audits to identify and isolate confidential information;

(b) marking all such confidential information and copies of documents which embody it as "confidential";

(c) ensuring not all documents are marked confidential as a matter of course, without giving proper consideration to this issue;

(d) ensuring that confidential information is disclosed only to employees and contractors on a need to know basis; and

(e) ensuring the more sensitive information is only disclosed to the more senior employees.

117.4 Departing employees

117.4.1 Unless there is anything in the employment agreement to the contrary, all confidential information which is disclosed or created by employees during the course of their employment, belongs to the employer. That confidential information must not be used by the employee for any purposes other than his or her employment by that employer.

117.4.2 Consequently, when an employee departs, he or she is not able to use any confidential information for the benefit of a competitor. However, in practical terms, it is often difficult to distinguish what is genuinely confidential information from the skill or knowledge which that person has during the period of their employment. Unless there is specific restraint imposed on an employee from competing with an employer after termination of the employment (which must be reasonable), it is not possible to stop the employee from using this type of information where it forms part of their skill base.



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117.4.3 The lessons for employers are:

(a) as discussed under the previous heading, it is imperative to separate all information which is genuinely confidential and a trade secret from general business;

(b) it is imperative to ensure all employees understand when they receive confidential information that it must only be used for the purposes of their employment and must be returned to the employer on termination; and

(c) there must be comprehensive and effective debriefing procedures in place whereby departing employees:

(1) are made aware of their obligations;

(2) return all copies of documents belonging to the company; and

(3) sign an acknowledgment confirming that they are aware of their obligations and have returned those documents.

118 PASSING OFF

118.1 Law

The Trade Marks Act is not the only way of protecting brand names and goodwill. The common law has developed a set of principles which prevent one trader from "passing off" that trader's goods or services as those of another trader. This law operates Australia-wide and is not found in any Act of Parliament.

118.2 What types of conduct are we talking about?

Passing off is generally concerned with conduct by one trader which misrepresents goods or services of that trader as those of another. Typically this involves:

118.2.1 the use of a deceptively similar trade mark or trade name;

118.2.2 the use of similar packaging or "getup"; or

118.2.3 falsely representing that a person or another trader has endorsed a product. This often involves the use of photographs of famous people on billboards associated with a product or an organisation.

118.3 What is required to establish passing off?

118.3.1 A plaintiff must establish three elements. These are:

(a) goodwill or reputation in the plaintiff’s specific trade or business;

(b) a misrepresentation by the defendant of a connection between the defendant or the defendant’s goods or services or business and the plaintiff or the plaintiff’s business; and



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(c) damage, or the threat of it, as a result of the misrepresentation, eg, diversion of custom, lost sponsorship fees or tarnished reputation.

118.3.2 The basic principle behind passing off is that it prevents someone else from "trading off" or "free-riding" on another person's reputation which has already been established.

118.3.3 In court it is often more difficult to establish passing off than infringement of a registered trade mark. This is because it is necessary to prove that there has been a misrepresentation made. This often involves complex evidence of deception and confusion in the market place, which can be very expensive. This issue is rarely raised in cases for infringement of registered trademarks, which usually revolve around the similarity of the two marks in question and the similarity of the goods and services in respect of which the marks are applied under the Trade Marks Act.

119 COMPETITION, CONSUMER AND FAIR TRADING OVERVIEW

119.1 General

119.1.1 The Competition and Consumer Act 2010 (Cth) (“CCA”) (incorporating the Australian Consumer Law (“ACL”)) is a Commonwealth Act. This was formerly the Trade Practices Act 1974. It applies principally to corporations.

119.1.2 The Australian Consumer Law and Fair Trading Act 2012 (Vic) is a Victorian Act which adopts the Australian Consumer Law as Victorian law and includes additional specific provisions which apply only in Victoria.

119.1.3 These Acts apply to Water Corporations.

119.2 Australian Consumer Law and Fair Trading Act 2012

The Australian Consumer Law and Fair Trading Act 2012 applies to all corporations, individuals and other entities. Its content was formerly in the Fair Trading Act 1999 but has been reorganised in light of changes to Commonwealth laws. Water Corporations are not exempt.

119.3 Competition Policy Reform (Victoria) Act 1995 (Cth)

The Competition Policy Reform (Victoria) Act 1995 (Cth) was enacted to comply with Victoria’s obligations under the Competition Code (in Schedule 1 of the CCA). This is an agreement between the Commonwealth and all States whereby competition law provisions are extended to all persons and corporations carrying on business in the States. One of the specific objectives of this legislation was to make State Government instrumentalities, public utilities and other similar organisations subject to competition laws.

119.4 Competition and Consumer Act 2010 (Cth)

119.4.1 The CCA and ACL replace the Trade Practice Act 1974. The CCA and ACL applies to corporations and natural persons, including Water Corporations.



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119.4.2 When a Water Corporation engages in any form of commercial activity it will be governed by the CCA. This may include buying and selling goods and services, entering into any contracts with outside parties, and leasing its facilities.

119.4.3 When a Water Corporation provides, or offers to provide, goods or services to a consumer, or a consumer pays, or attempts to pay, for purchases from a Water Corporation, the CCA (incorporating the ACL) will specifically govern those activities.

119.4.4 The following sections of the Manual will refer to provisions of the CCA and ACL which is in Schedule 2 of the CCA. The most relevant provisions of the CCA and ACL are:

(a) Part IIIA of the CCA – the access to services regime;

(b) Part IV of the CCA – restrictive trade practices;

(c) Chapter 2 of the ACL:

(1) misleading and deceptive conduct;

(2) unconscionable conduct; and

(3) unfair contract terms; and

119.4.5 Chapter 3 of the ACL – Specific protections (for example, guarantees for consumer transactions).

119.5 Liability

119.5.1 Any person who:

(a) breaches the CCA or the ACL;

(b) attempts to breach the CCA or the ACL;

(c) assists someone to breach the CCA or the ACL;

(d) induces someone to breach the CCA or the ACL; or

(e) is a party to the contravention,

is liable under either the CCA or ACL.

119.5.2 Liability may not only attach to a company but also to an individual. Individual liability is not restricted to directors and secretaries or official officers or Board members. It may extend to employees as well.

119.6 How could Water Corporations be caught by the CCA/ACL?

Simply, by doing any of the things which are prohibited by the CCA or ACL. However, Water Corporations may also be liable because of the acts or omissions of:



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119.6.1 a Board member;

119.6.2 an employee;

119.6.3 an authorised agent; or

119.6.4 any other person who acts at the direction of a Board member or employee or agent, where the person is acting with authority from the Water Corporation (this includes independent contractors and consultants).

119.7 Penalties

119.7.1 In competition law cases, a penalty of up to $10 million for companies, and $500,000 for individuals, per offence, may be imposed (section 76 of the CCA). In some cases, the court can set the penalty at up to 10% of the offending company’s annual turnover.

119.7.2 In consumer law cases, a penalty of up to $1.1 million for companies, and up to $220,000 for individuals, per offence, may be imposed (see section 224 of the ACL).

119.8 Other remedies

119.8.1 Damages

A person who suffers loss or damage because of another’s breach of the CCA or ACL may recover that loss or damage from the offender (section 82 of the CCA and section 236 of the ACL).

119.8.2 Injunctions

An injunction is an order of a court to refrain from certain conduct. One example is an order that restrains a company from engaging in anti-competitive conduct. It can be obtained by the Australian Competition and Consumer Commission (“ACCC”) and any other party who is directly affected by that conduct (section 80 of the CCA and sections 232-235 of the ACL).

119.8.3 Other orders

Under the CCA and ACL, a court may make additional orders to compensate any person for loss or damage.

120 COMPETITION LAW

120.1 Access to services (Part IIIA of the CCA)

120.1.1 This part of the CCA first came into force on 1 July 1995 in response to the Hilmer Report which concluded that existing laws did not adequately protect the position of a trader who is unable to compete effectively because another person has control of access to an essential facility. Although primarily intended to apply to commercial competition, these



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provisions might readily be applied to infrastructure and other facilities owned or controlled.

120.1.2 The access process operates in two parts — the declaration process and the access arrangements.

120.1.3 The declaration process

(a) Any State or Territory Minister or any other interested person may apply to the National Competition Council (“Council”) (formerly the Trade Practices Tribunal) for a declaration that any facility is to be declared an essential facility (section 44F of the CCA).

(b) The Council must consider the application according to certain criteria (section 44G of the CCA). These include:

(1) whether it would be uneconomical for anyone else to develop another similar facility;

(2) that the facility is of national significance, having regard to its size and importance to trade or commerce and the national economy;

(3) that access to the facility can be provided without undue risk to human health or safety; and

(4) that access to the service would not be contrary to the public interest.

(c) If the Council decides that these criteria are met, it makes a recommendation to the designated minister (section 44F of the CCA).

(d) The designated minister must then decide whether or not to declare the facility an essential facility (section 44H of the CCA).

120.1.4 Access arrangements

(a) If the facility is declared an essential facility, it is up to the person seeking access, and the organisation which controls the facility, to come to an arrangement. If they fail to do so, either person can ask the ACCC to arbitrate.

(b) To our knowledge, the Council has not received any applications relating to Victorian water services. However, on 13 August 2009, the Commonwealth Minister for Competition Policy and Consumer Affairs decided that the NSW access regime for water industry infrastructure services is an effective access regime (pursuant to what is now section 44N of the CCA). This decision will remain in force for 10 years. The Council recommended certification of the NSW access regime to the Minister.

(c) In March 2004, an application was made to the Trade Practice Tribunal (the Council’s predecessor) to declare sewage



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transmission and interconnecting services as essential services under the Trade Practices Act 1974. The Trade Practice Tribunal recommended that the services be so declared for 50 years. The NSW Premier did not make a decision on the application within the stipulated timeframe and was taken not to have declared the services. The applicant sought review of the decision by the Australian Competition Tribunal and in December 2005, the Australian Competition Tribunal decided to set aside the Premier’s decision and declare the services pursuant to the Trade Practices Act 1974 (Cth). This decision has been revoked as a consequence of the August 2009 decision described above.

(d) To our knowledge, no water facility owners have approached the ACCC with a voluntary undertaking on access to water facilities under Part IIIA of the CCA.

(e) The provisions are very complex. Given the requirements relating to health and safety and public interest, it is difficult to predict the outcome of any application for a declaration under the CCA. There may be other facilities owned and operated by Water Corporations which could conceivably be subject to this part of the CCA. This would be consistent with the Victorian Government’s Competitive Neutrality policy.

120.2 Restrictive trade practices (Part IV of the CCA)

120.2.1 What are restrictive trade practices?

(a) Restrictive trade practices are concerned with:

(1) conduct, agreements and arrangements that affect competition, such as boycotts, cartel or monopolistic behaviour; and

(2) exclusive dealing, including third line forcing.

(b) It is possible that a Water Corporation may enter into or become involved in transactions which, while making perfect sense commercially, unwittingly breaches the CCA.

120.2.2 Agreements and arrangements affecting competition

Some types of contracts, arrangements and understandings between companies may infringe the CCA where they have the purpose or effect of substantially lessening competition.

120.2.3 Primary boycotts

These are contracts, arrangements or understandings between competitive companies designed to exclude or limit dealings with a particular person. For example, a number of developers may agree not to deal with a particular builder. They are prohibited outright by the CCA from doing this.



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120.2.4 Exclusive dealing

Exclusive dealing includes situations where a supplier:

(a) supplies goods or services on the condition that the purchaser will not acquire other goods and services from a competitor of the supplier;

(b) supplies goods or services on the condition that the purchaser will not re-supply the goods or services to certain classes of persons or in certain places; or

(c) refuses to supply goods or services because the purchaser has not complied with or refuses to comply with either of the above.

120.2.5 Is exclusive dealing prohibited outright?

Most exclusive dealing practices are prohibited only if they have the purpose or effect of substantially lessening competition in a relevant market.

120.2.6 Third line forcing

(a) One aspect of exclusive dealing, commonly known as “third line forcing” is prohibited outright regardless of its effect on competition. This is where a company supplies or purchases goods or services, conditional on the purchaser acquiring other goods or services from another person.

(b) An example of this could be where access to a particular facility (for example, a quarry site) is provided on the condition that the person being given access uses equipment which is supplied by a particular person.

(c) In these situations, the arrangement might be justified in another way, such as:

(1) related goods or services could be sold as “a package”, for example, a house and land package; or

(2) the use of the prescribed equipment could be justified on grounds such as safety standards or essential features which are necessary to perform the required task properly. In these situations, the equipment should not be referred to by its brand name or its manufacturer, but by reference to the relevant standards.

120.2.7 Misuse of market power

Most elements of competition law involve arrangements between at least two people. However, where an organisation has a substantial degree of power in a market for the supply of a particular type of service or good, it is prevented from engaging in conduct which is intended to eliminate or substantially damage a competitor, prevent a competitor



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from entering into the market, or deterring or preventing a competitor from carrying on business effectively in that market.

120.2.8 Price fixing

(a) Any contract, arrangement or understanding which has the purpose of or is likely to have the effect of fixing, controlling or maintaining the price for goods and services, or any discount, allowance, rebate or credit is illegal. It does not matter whether or not the conduct has any effect on competition.

(b) This usually refers to some sort of arrangement between competitors to control prices.

120.2.9 Resale price maintenance

Any conduct which is aimed at controlling the resale price of goods or services is illegal. This accounts for why you see the words “recommended retail price”. Mere recommendation of a price is permitted, but it is not permissible to go beyond this.

120.2.10 Cartels

(a) A cartel is an anti-competitive arrangement between two or more competing businesses. Common forms of illegal cartel conduct include:

(1) price fixing;

(2) market sharing (agreements between competitors that divide the market up so that the participants are sheltered from competition);

(3) bid rigging (two or more competitors agree that they will not compete genuinely with each other for particular tenders, allowing one of the participants in the agreement to win the tender); and

(4) output controls agreed on between competitors in the form of production or sales quota arrangements to limit the volume of particular goods or services available on the market in order to inflate market prices.

(b) The CCA prohibits a corporation from making a contract, arrangement or understanding that contains a “cartel provision”. A “cartel provision” includes provisions in the contract, arrangement or understanding between two or more parties who are, or are likely to be, in competition with each other concerning four types of cartel conduct, namely, price fixing, output controls, market sharing and bid rigging.

(c) A corporation will have contravened the civil prohibition if it makes a contract, arrangement or understanding containing a cartel



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provision with its competitor or if it gives effect to the cartel provision.

(d) The Commonwealth Criminal Code makes it a criminal offence to engage in cartel conduct. The elements of the offence, to be proven beyond a reasonable doubt, are as follows:

(1) an individual or corporation intended to enter into a contract, arrangement or understanding and that he/she or it knew or believed that the contract, etc., contained a cartel provision; and

(2) the individual or corporation knew or believed a contract, etc., contained a cartel provision and that he, she or it intended to give effect to that cartel provision.

120.3 Industry codes (Part IVB of the CCA)

This part of the CCA strengthens the legal rights available to consumers against unfair business conduct. Specifically, this part allows industry designed codes of practice, in full or in part, to be prescribed as mandatory or voluntary codes and enforced under the CCA.

121 CONSUMER AND FAIR TRADING LAW (ACL)

121.1 Misleading and deceptive conduct (Part 2-1 of the ACL)

121.1.1 Section 18(1) of the ACL states as follows:

“A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

121.1.2 This was formerly section 52 of the Trade Practices Act 1974 (Cth).

121.1.3 There have been literally hundreds of disputes and cases concerning conduct that was alleged to be misleading or deceptive. Any person who is in any way involved in commercial activity must be aware that the courts have interpreted the section as an absolute prohibition on all forms of conduct which are misleading or deceptive, or likely to mislead or deceive.

121.1.4 Importantly:

(a) it is not necessary that there be actual deception or confusion. It is sufficient that there is a real possibility that someone will be misled or deceived by the conduct;

(b) on the other hand, a mere possibility of confusion is not sufficient. There must be a real probability;

(c) the term “engaging in conduct” has been very broadly interpreted. Under section 4(2) of the CCA it includes:

(1) doing or refusing to do any act;



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(2) giving effect to a provision of a contract or arrangement; or

(3) arriving at or giving effect to an understanding.

121.1.5 Points to note

(a) Misleading or deceptive conduct is conduct which is likely to confuse a consumer or lead a consumer into error.

(b) It does not matter whether the offending company or person intended to engage in misleading or deceptive conduct or if the conduct was in fact misleading or deceptive.

(c) Conduct includes the making of statements, and may include silence.

(d) Silence may be misleading when taking into account all the circumstances or where there is a duty to reveal relevant facts.

(e) Predictions are deemed to be misleading unless they were reasonable at the time they were made.

(f) An expression of opinion or gratuitous advice may be misleading or deceptive, particularly if it is expressed as being made by an expert.

(g) Disclaimers are not always effective in curing misleading and deceptive conduct. They will only be treated as a factor in assessing the overall impact of the conduct on the ordinary and reasonable person targeted by the conduct.

121.1.6 Some examples

(a) A builder who purchased land at auction was successful in claiming damages when it was discovered that the extent of fill on the land had not been fully disclosed in the auction information.

(b) A finance company subdivided land in the foothills of the Mt Lofty Ranges, part of which abutted on an area zoned for preservation. The agents prepared a brochure which incorrectly identified the location of the preserved area. This was a breach and fines were imposed on the developer and the agent.

(c) Television advertisements for the sale of land near Newcastle contained the words “a wonderful place to live” and various pictures of the land, including some showing houses. In fact, the land was zoned “non-urban” and houses could not be built without special approval of the local council. This was held to be in breach of the equivalent provisions of the ACL and CCA which replaced the Trade Practices Act 1974 (Cth).

121.2 Unconscionable conduct (Part 2-2 of the ACL)

121.2.1 This is regulated by both the ACL and common law principles.



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121.2.2 Unconscionable conduct exists in circumstances where:

(a) a party to a transaction is under a special disability which causes an unreasonable degree of inequality between the parties; and

(b) that disability was sufficiently evident to the stronger party to make it unfair that the stronger party procure, or accept, the weaker party’s consent to the deal.

121.2.3 Where such circumstances are shown to have existed, an onus is placed on the stronger party to show that the transaction was fair, just and reasonable.

121.2.4 Examples of special disabilities could be:

(a) illness;

(b) impaired faculties;

(c) age;

(d) sex;

(e) ignorance;

(f) inexperience;

(g) illiteracy;

(h) lack of education;

(i) lack of business experience;

(j) lack of understanding of English; and

(k) lack of assistance or explanation where that assistance or explanation is necessary.

121.2.5 Section 21 of the ACL applies to the supply or possible supply of goods or services by a person (the supplier) to another person (the customer). Section 22 extends the unconscionable conduct provisions to “business transactions” which do not involve listed public companies.

121.2.6 Under section 21, the Court may take into account a range of circumstances in determining whether a customer has been subject to unconscionable conduct. It may consider the parties’ relative commercial strengths, whether undue influence was exerted, whether the conditions of the contract exceeded what was reasonably necessary for the legitimate interest of the supplier, the amount of the transaction and the consumer’s ability to understand the transaction.

121.2.7 Under section 22, the Court may additionally take into account applicable industry codes, the consistency of the supplier’s conduct in comparable transactions and whether there was evidence of disclosure, good faith and willingness to negotiate.



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121.2.8 Examples of unfair tactics are:

(a) failure to give the customer an opportunity to consider the contract;

(b) failure to give the customer an opportunity to consider alternatives;

(c) failure to explain the terms and nature of the contract; and

(d) the use of surprise (for example, production of the contract for immediate signature).

121.3 Unfair contract terms (Part 2-3 of the ACL)

121.3.1 What is an unfair contract term?

A term of a consumer contract is unfair if the contract is a standard form contract and the term:

(a) causes a significant imbalance in the parties’ rights and obligations;

(b) is not necessary to protect the interests of the party who is advantaged by the term; and

(c) causes detriment to the other party.

121.3.2 What is a consumer contract?

A consumer contract is a contract to supply goods, services or an interest in land wholly or predominantly for personal, domestic or household use or consumption. It does not include contracts for the supply of goods, services or an interest in land for commercial purposes.

121.3.3 What is a standard form contract?

A standard form contract is one that is prepared by one party generally for a large range of its customers in final form where there is no opportunity for the customer to negotiate the terms of the contract. In determining whether a contract is a standard form contract a Court must take into account:

(a) whether there is an imbalance in bargaining power;

(b) whether the contract was prepared by one party prior to any discussion with the customer;

(c) whether the customer was given an opportunity to negotiate the terms of the contract; and

(d) whether the terms of the contract take into account the specific characteristics of the customer or transaction.



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121.3.4 Examples

Some examples of unfair terms provided for in the ACL are terms that:

(a) permit the supplier but not the consumer to avoid or limit the contract’s performance;

(b) permit the supplier but not the consumer to terminate the contract;

(c) penalise the consumer but not the supplier for a breach or termination of the contract;

(d) permit the supplier but not the consumer to renew or not renew the contract;

(e) permit the supplier to determine the price without the consumer having a right to terminate the contract;

(f) permit the supplier unilaterally to vary the characteristics of the goods or services to be supplied under the contract;

(g) permit one party to interpret the meaning of the contract;

(h) limit one party’s liability for the conduct of its agents;

(i) permit one party to assign the contract without consent to the other’s detriment; and

(j) limit the right of one party to sue the other.

121.3.5 What is the effect of an unfair contract term?

Section 23(1) of the ACL provides:

(a) an unfair contract term in a consumer contract is void (ie., treated as never having existed); and

(b) the contract will continue to bind the parties if it is capable of existing without the term in question.

121.4 Unfair practices (Part 3-1 of the ACL)

Section 18(1) of the ACL is supplemented by other provisions in the ACL that are intended to protect the consumer. These include the following:

121.4.1 false or misleading representations concerning:

(a) the standard, quality, value, style, composition, model or grade of goods;

(b) the standard, quality, value or grade of services;

(c) whether goods are new;

(d) the price of goods or services;



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(e) the country of origin of goods; and

(f) the existence or extent of warranties or guarantees;

121.4.2 representations that a person has a sponsorship, approval or affiliation it does not have;

121.4.3 false or misleading representations concerning:

(a) the price payable for land;

(b) the location of land;

(c) the characteristics of land;

(d) the use to which land is capable of being put;

(e) the existence or availability of facilities associated with land;

121.4.4 offering gifts, prizes or other free items with the intention of not providing them or of not providing them as offered;

121.4.5 certain pyramid scheme arrangements;

121.4.6 failing to comply with safety standards;

121.4.7 attempting to exclude guarantees and conditions which are implied by law into the sale of goods or the provision of services; and

121.4.8 failing to specify in a prominent way and as a single figure, the single price for goods or services offered for personal, domestic or household consumption or use.

121.5 Consumer guarantees (Part 3-2 of the ACL)

121.5.1 Part 3-2, Division 1 of the ACL implies into all contracts for the supply of goods or services to consumers certain non-excludable guarantees.

121.5.2 These include in relation to goods guaranteed as to:

(a) title (section 51);

(b) undisturbed possession (section 52);

(c) being free from encumbrance (section 53);

(d) quality (section 54);

(e) fitness for any disclosed purpose (section 55);

(f) description (ie where goods are supplied by description the supplied goods must correspond with the description given) (section 56); and



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(g) sample (ie goods supplied by sample must correspond with the sample) (section 57).

121.5.3 They also include in relation to services guarantees that:

(a) the services will be rendered with due care and skill (section 60);

(b) any goods supplied with the services will be fit for the purpose for which the service is required (section 61); and

(c) services will be supplied within a reasonable time if not specified in the contract (section 62).

121.5.4 Although these consumer guarantees are non-excludable and any provision in a contract that purports to do so is void, liability for breach may be limited, as follows:

(a) in the case of goods, any one or more of the following:

(1) the replacement of the goods or the supply of equivalent goods;

(2) the repair of goods;

(3) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(4) the payment of the costs of having the goods repaired; or

(b) in the case of services:

(1) the re-supply of the services; or

(2) the payment of the cost of having the services supplied again.

121.5.5 A person may not however, limit liability in this fashion if it is not fair or reasonable to do so, having regard to all the circumstances and in particular:

(a) the relative strength of the parties’ bargaining positions;

(b) whether the consumer was induced to agree to the term or could have purchased the goods or services from another source that did not include that term;

(c) whether the consumer knew or ought reasonably to have known of the existence and extent of the term; and

(d) whether the goods were manufactured, processed or adopted to the customer’s special order.



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121.5.6 The ACL defines “consumer” for the purpose of the ACL as a person (including a corporation) in relation to particular goods if:

(a) the goods are priced at $40,000 or less; or

(b) the goods are priced at more than $40,000 but are of a kind ordinarily acquired for personal, domestic or household use or consumption,

and they are not purchased for either:

(c) resupply; or

(d) using them up or transferring them in business in the course of the process of production or manufacture, or in the course of repairing or treating other goods or repairing or treating fixtures (section 3(2)(b) of the ACL).

121.5.7 A person (including a corporation) will be a consumer in relation to particular services if:

(a) the services cost $40,000 or less; or

(b) the cost of the services exceeds $40,000 but the services are of a kind ordinarily acquired for personal, cosmetic or household use or consumption (section 3(3) of the ACL).

121.6 Liability for manufactured goods with safety defects (Part 3-5 of the ACL)

121.6.1 Common law and statutory codes

Issues of product liability are also dealt with under the common law of negligence. Part 3-5 of the ACL operates in addition to the common law by creating a statutory code for dealing with goods with safety defects, etc. These provisions can be relevant because:

(a) under certain circumstances, Water Corporations could import goods for the purposes of selling or hiring those goods out to other persons; and

(b) Water Corporations will obviously be purchasing goods, some of which may have safety defects.

121.6.2 What is a safety defect?

For the purposes of the ACL, goods have a safety defect if their safety is not as persons generally are entitled to expect. In determining the extent of safety of goods, regard is to be given to all relevant circumstances including the following factors:

(a) The manner in which and the purposes for which goods are being marketed.

(b) The packaging of the goods.



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(c) The use of any mark in relation to them.

(d) Instructions or warnings given with respect to the use of the goods.

(e) What might reasonably be expected to be done with the goods;

(f) How old they are by the time they are used.

121.6.3 Who is liable?

The “manufacturer” is liable for goods supplied by it with safety defects. However, where the manufacturer cannot be identified, the supplier can be deemed to be the manufacturer where it does not disclose the manufacturer’s identity within a specific time. It is therefore critical to keep a careful record of the manufacturer of goods supplied by Water Corporations, particularly where goods are imported.

121.6.4 Liable for what?

The manufacturer or deemed manufacturer of goods with safety defects may be liable for the following loss or damage arising from the use of those goods:

(a) Personal injury or death.

(b) Injury or death of another person.

(c) Damage to or destruction of someone’s domestic or household goods (this excludes commercial equipment).

(d) Damage to private dwellings or fixtures (this does not apply to commercial premises).

121.6.5 What defences are available?

The manufacturer or deemed manufacturer will not be liable where it establishes that:

(a) the defect did not exist at the time the goods were supplied;

(b) the defect arose as a result of compliance with a mandatory product standard;

(c) the defect could not have been discovered at the time because of technological limitations;

(d) if the defect is in finished goods, the defect is attributable to the design of the finished goods, the markings on them or instructions given with them; or

(e) the proper disclaimers and warnings were supplied but ignored by the user.



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122 DESTRUCTION OF EVIDENCE

122.1 Amendments to Crimes Act 1958 (Vic)

Taking effect from 1 September 2006, the Victorian Crimes Act 1958 was amended to make the destruction of evidence known to be, or likely to be, required as evidence in a legal proceeding of a crime, an offence.

122.2 Elements of the offence

122.2.1 A person who:

(a) knows that a document is or is reasonably likely to be required in evidence in legal proceedings;

(b) either destroys, conceals or renders the document illegible, undesirable or incapable of identification or expressly, tacitly or impliedly authorises another to do so; and

(c) acts as described with the intention of preventing the document from being used as evidence,

is guilty of an offence and liable to five years maximum imprisonment, a fine of up to $84,504 (if the person is an individual) or $422,520 (if the person is a body corporate) or both (section 254).

122.2.2 The offence is committed regardless of whether the proceeding has commenced or is to be, or may be, commenced in the future.

122.2.3 A body corporate is automatically criminally responsible for the actions of its officers, Board of Directors or associates (section 255).

122.2.4 However, if a body corporate can prove it exercised due diligence to prevent an officer’s contravention of section 254, it will have a defence to the charge (section 255(3)).

122.2.5 Authorising a person to destroy a document is an offence. Authorisation includes:

(a) authorisation (express, tacit or implied) by an officer or the Board of Directors of the body corporate; or

(b) a “corporate culture” existed that directed, encouraged, tolerated or led to the relevant conduct.

122.3 Documents

The offence applies to a broad range of documents, including both paper and electronic documents (such as emails).

122.4 Seven year rule

Often documents are routinely destroyed after 7 years. However, the offence is not limited by statute. Therefore, any decision to destroy a document should only be



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made after careful consideration as to whether the document is likely to be required in any legal proceedings.



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PART 10 - OTHER LEGISLATION

120 COUNTRY FIRE AUTHORITY ACT 1958

120.1 General

Responsibility for fire management within the inner and middle suburbs of the Melbourne Metropolitan area rests with the Metropolitan Fire Brigade pursuant to the Metropolitan Fire Brigades Act 1958. For the outer suburbs and the rest of Victoria responsibility rests with the Country Fire Authority (“CFA”) pursuant to the Country Fire Authority Act 1958 (“CFA Act”) and for state forests, national parks and protected public land by the Secretary to DSE pursuant to the Forests Act 1958.

120.2 Duties on Public Authorities

120.2.1 Pursuant to section 43 of the CFA Act, there is an express duty on public authorities (including Water Corporations) to take all practicable steps (including burning) to prevent the occurrence of fires on and minimise the danger of the spread of fires on and from:

(a) any land vested in it or under its control or management; and

(b) any road under its care and management.

120.2.2 A public authority may acquire any equipment; do anything; or expend from its funds any amount that is necessary or expedient for the purpose of fulfilling its duty under section 43(1) of the CFA Act.

120.2.3 If the cost of maintenance of a road is apportioned between municipal councils or public authorities or both, the cost of fulfilling the duty imposed by section 43(1) must be apportioned in the same manner.

120.3 Penalties

120.3.1 There are a number of offences set out in the CFA Act. Some of the offences include that in the country areas of Victoria a person:

(a) shall not drive or operate a vehicle propelled by internal combustion so that the vehicle is in contact with any crop, grass, stubble, weeds, undergrowth or other vegetation, unless the vehicle is fitted with an efficient silencing device so constructed that all the exhaust from the engine of the vehicle passes from the silencing machine;

(b) must not drive or operate a tractor or a self-propelled farm machine or a traction engine or an earth-moving, excavating or road-making machine propelled by or incorporating a heat-engine within nine metres of or in contact with any crop, grass, stubble, weeds, undergrowth, or vegetation unless the tractor, traction engine or machine is free from faults and mechanical defects which would tend to cause an outbreak of fire; and is fitted with a spark arrestor and carries the prescribed fire suppression equipment during a fire danger period.



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120.4 Attribution of liability

120.4.1 There are several circumstances in which liability will not be attributed to Water Corporations or its members and officers (section 94 CFA Act):

(a) A municipal council or public authority and a fire prevention officer of a municipal council, public authority or administrative unit shall not be liable in respect of any loss or damage sustained by any person as the result of the doing of any act matter or thing pursuant to any direction given or permit granted by any such officer pursuant to the CFA Act if such direction was given or granted in good faith.

(b) No municipal council or public authority and no member servant agent or workman thereof and no officer or member of any brigade shall be liable in respect of any loss or damage sustained by any other person as the result of the doing of any act matter or thing in order to comply with section 43 of the CFA Act unless such loss or damage caused by the negligence or wilful deceit.

(c) No municipal council or public authority and no member thereof shall be liable in respect of any loss or damage sustained by any other person as the result of doing of any act matter or thing pursuant to the CFA Act by the members of any brigade and the request or with the consent of the said municipal council or public authority.

120.4.2 Any person complying in good faith with any direction given under the CFA Act or any person requesting or consenting to any act by the members of a brigade is not personally liable for anything done or omitted to be done in accordance with the direction or in the exercise of a power or discharge of a duty under the CFA Act or its associated regulation (section 95 CFA Act).

120.5 Water supply to fires

120.5.1 Section 32(1) of the CFA Act creates a positive obligation on a “water supply authority" for the area to attend any fire with "... all possible speed ..." and assist to ensure there is a copious supply and pressure of water.

120.5.2 Section 96 of the CFA Act provides that the CFA, the chief officer, any officer exercising the powers of the chief officer and all officers and members of any brigade, shall have the use free of charge of all water mains, water plugs, valves, pipes and works of water supply vested in or under the management or control of any water supply authority, public authority or body whatsoever and of all water therein and of all water in any well or tank belonging to any person whatsoever, for the purpose of extinguishing any fire or for the purpose of drills, competitions and practices conducted by or with the permission of the CFA.



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121 METROPOLITAN FIRE BRIGADES ACT 1958

121.1 General

121.1.1 The Metropolitan Fire Brigades Act 1958 (“MFB Act”) establishes the Metropolitan Fire and Emergency Services Board (“Board”) for the purpose of carrying out the provisions of the MFB Act.

121.1.2 The metropolitan fire district covers Melbourne's inner and middle suburbs described in Schedule 2 of the MFB Act.

121.1.3 The Governor in Council, by proclamation in the Victoria Government Gazette, may include any river or waterway which are designated as being within a fire district.

121.2 Powers of the chief officer

121.2.1 Section 32 of the MFB Act says that, within the metropolitan district, the Chief Officer of the Metropolitan Fire and Emergency Services Board (“CO”) or any person authorised for the purpose by the CO, shall at all reasonable times have free access to any land, building, premises or other place for the purposes of ascertaining whether the MFB Act and its regulations, and any other laws relating to:

(a) the storage of explosives;

(b) the storage of radioactive substances;

(c) the storage of inflammable liquids or substances; and

(d) the prevention of fire or the protection of life or property in the case of life or property in the case or fire;

are being complied with.

121.2.2 Section 32C of the MFB Act says that, if a fire has been recently extinguished, the CO may cause any building or structure:

(a) which has been damaged by the fire; and

(b) which the CO reasonably believes is or may become dangerous to life or property because of that damage,

to be shored up, pulled down or otherwise destroyed or removed.

121.3 Powers of fire brigade officers

121.3.1 A member of any unit or a member of the police force may order any person who is not a member of a unit to withdraw from any premises then burning, or which are threatened by fire.

121.3.2 If such person neglects of refuses to so withdraw, he or she may be forcibly removed by order of any such member.



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121.3.3 Nothing herein contained shall authorise the removal from any such premises of any person having any pecuniary interest therein or in any goods or valuables whatsoever thereon.

121.4 Right to water

121.4.1 The Board, its operational staff and any unit registered under the MFB Act shall have the use of all water mains, water plugs, valves or pipes vested in, or belonging to, Melbourne Water or any public or municipal council or for the purpose of drill competitions and practice conducted under the authority of the Board (section 59 MFB Act).

121.4.2 The Board may enter into an agreement with any person to provide any other property protection or loss mitigation service for the protection of or to deal with the effects of any emergency or hazard (section 55C MFB Act).

121.5 Duties and powers of public authorities in relation to fire

121.5.1 Pursuant to section 5(1) of the MFB Act, in the metropolitan district, it is the duty of every municipal council and public authority to take all practicable steps (including burning) to prevent the occurrence of fires on and minimise the danger of the spread of fires on, and minimise the danger of the spread of fires on and from:

(a) any land vested in it or under its control or management; and

(b) any road under its care and management.

121.5.2 To achieve this, a municipal council or public authority may acquire any equipment; do anything; expend from its funds any amount that is necessary or expedient for the purpose of fulfilling its duty under section 5(1) of the MFB Act.

121.5.3 If the cost of maintenance of a road is apportioned between municipal councils or public authorities or both, the cost of fulfilling the duty imposed by section 5(1) of the MFB Act must be apportioned in the same manner.

122 FORESTS ACT 1958

122.1 General

122.1.1 The Forests Act 1958 grants power to the Secretary of DSE to control and manage State forests, plantations, nurseries and forest produce.

122.1.2 It is the duty of the Secretary to protect State forests.

122.1.3 It is also the duty of the Secretary to establish, maintain, improve and renew forest plantations, tree nurseries and the distribution of trees there from and all tree planting on Crown land not vested in any corporation, trustees or not under the control or management of any council or committee of management or on public roads.



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122.2 Prevention of and protection from fire

122.2.1 The Governor in Council may by order, published in the Victoria Government Gazette, declare any land of the Crown, not being within a state forest or a national park, to be protected public land and may by a like order revoke or vary any order so made.

122.2.2 Pursuant to section 62C of the Forests Act, the Secretary may enter into an agreement or arrangement with any person or body in Victoria or elsewhere:

(a) for assistance in the prevention and suppression of fire;

(b) relating to research into the prevention and suppression of fire;

(c) for training in relation to the prevention and suppression of fire;

(d) for the supply of fire fighting equipment and apparatus and systems used in the prevention and suppression of fire; and

(e) for the provision by the Secretary of goods or services relating to the prevention and suppression of fire.

122.2.3 Provisions relating to the lighting of fires, burning off, fire prevention and safety are contained in sections 63 to 72 of the Forests Act.

123 VICTORIA STATE EMERGENCY SERVICE ACT 2005 AND EMERGENCY MANAGEMENT ACT 1986

123.1 The Victoria State Emergency Service Act 2005 establishes the Victoria State Emergency Service Authority (“VSES Authority”).

123.2 The main function of the VSES Authority is to prepare and help municipal councils prepare emergency management plans and responses in accordance with the Emergency Management Act 1986.

123.3 In relation to Water Corporations , it is an offence for any person to wilfully damage or interfere with any apparatus or other property of the VSES Authority or of a registered unit. Further, a person must not, during an emergency, obstruct, hinder or in any way interfere with a service member’s performing functions (sections 44 and 45 Victorian State Emergency Service Act).

123.4 The purpose of the Emergency Management Act 1986 is to provide for the organisation of emergency management in Victoria.

124 CODE OF PRACTICE FOR BUSHFIRE MANAGEMENT ON PUBLIC LAND

124.1 DSE has produced this Code as a framework for fire management procedure and practice on public land in Victoria. This Code replaces the Code of Practice for Fire Management in Public Land 2006.

124.2 The Code was updated in 2012 because fire management practices have changed since the 2009 bushfires and the 2009 Victorian Bushfires Royal Commission recommended changes to the Code. The Code provides the framework for



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integrated management of bushfire and fire related activities on public land in Victoria. The objectives of the Code are:

124.2.1 Minimise the impact of major bushfires on human life, communities, essential and community infrastructure, industries, the economy and the environment. Human life is to be accorded priority.

124.2.2 Maintain or improve the resilience of natural ecosystems and their ability to deliver services such as biodiversity, water, carbon storage and forest products.

124.3 The Code is a Code for the purposes of section 31(1) of the Conservation, Forests and Lands Act 1986.

124.4 Compliance with the Code is not required unless the Code of Practice is incorporated in or adopted by a relevant law or in a condition specified in an authority given under a reliant law (eg, a planning permit).

124.5 The Code applies to all public land in Victoria as defined in the document being, "All State forest, national park, and protected public land as defined under the Forests Act 1958".

124.6 Consequently, the Code could apply in certain circumstances to land owned or managed by Water Corporations. It is suggested that all land managers should become familiar with the Code as it contains some very useful material on fire management.

125 DANGEROUS GOODS ACT 1985

125.1 General

125.1.1 The purpose of the Dangerous Goods Act 1985 (“DG Act”) is to ensure that dangerous goods are packaged, stored, transported and otherwise dealt with in an appropriate and safe manner.

125.1.2 The term “dangerous goods” has the same meaning as it has in the Australian Code for the Transport of Dangerous Goods by Road and Rail (7th edition or a later prescribed edition) except that:

(a) class 1 dangerous goods in that Code are not dangerous goods for the purposes of the DG Act; and

(b) the following substances and articles are also dangerous goods:

(1) explosives;

(2) combustible liquids having a flashpoint higher than 61°C;

(3) high consequence dangerous goods; and

(4) any substance or article declared to be dangerous goods by an order in Council.

125.1.3 The Dangerous Goods Amendment (Transport) Act 2008 inserted a new section 9(ec) into the DG Act so that the DG Act does not apply to



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substances which are infectious to animals or plants, or to genetically modified organisms. In Victoria, control of such infectious substances is through the Department of Primary Industries with its administration of the Livestock Disease Control Act 1994 and the Plant Biosecurity Act 2010.

125.2 Licensing

The DG Act requires:

125.2.1 licensing if handling dangerous goods;

125.2.2 provision of details of what dangerous goods are kept on the premises provided at 3 month intervals (section 27 DG Act); and

125.2.3 keeping of a manifest of all dangerous goods (section 30 DG Act).

125.3 Labelling

The DG Act requires appropriate signage:

125.3.1 at all sites where dangerous goods are stored; and

125.3.2 on all vehicles transporting dangerous goods.

125.4 Quantities and class

Licensing and labelling for dangerous goods is dependent on quantities and class of goods.

125.5 Regulations

The following are regulations made pursuant to the DG Act and must be complied with by all Water Corporations dealing with dangerous goods.

125.5.1 Dangerous Goods (Explosives) Regulations 2011;

125.5.2 Dangerous Goods (HCDG) Regulations 2005;

125.5.3 Dangerous Goods (Storage and Handling) Interim Regulations 2011;

125.5.4 Dangerous Goods (Transported by Road or Rail) Regulations 2008; and

125.5.5 Occupational Health and Safety Regulations 2007.



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126 DRUGS, POISONS & CONTROLLED SUBSTANCES ACT 1981

126.1 Poison Baits - Offence unless authorised

126.1.1 Section 52(2) of the Drugs, Poisons & Controlled Substances Act 1981 (“DPCS Act”) makes it an offence to set poison baits, unless authorised to use a poison or controlled substance in or upon any road, street, drain, channel or land for the purposes of:

(a) destroying rats, mice or other vermin (not being wildlife within the meaning of the Wildlife Act 1975 commonly found in houses or pest animals within the meaning of the Catchment and Land Protection Act 1994);

(b) disinfecting, sterilising or cleansing;

(c) manuring or fertilising; or

(d) killing or destroying wildlife within the meaning of the Wildlife Act 1975, if the Council acts under accordance with an authority issued or granted under that Act.

126.1.2 Such a body which uses a poison or controlled substance of fluid or edible matter in such circumstances, is required to take or cause to be taken all reasonable precautions to prevent access to the poison or controlled substance or the fluid or edible matter by any domestic animal (section 52(2) DPCS Act).

127 PUBLIC HEALTH AND WELLBEING ACT 2008

127.1 General

The Public Health and Wellbeing Act 2008 (“PHW Act”) relates to public health.

127.2 Nuisances

127.2.1 Section 61 of the PHW Act creates a statutory offence of nuisance.

127.2.2 Pursuant to this section, a person must not:

(a) cause a nuisance; or

(b) knowingly allow a nuisance to exist on or emanate from any land owned or occupied by that person.

127.2.3 At common law, a nuisance is an unreasonable interference to the use and enjoyment of another person’s land. The statutory offence of nuisance is the PHW Act applies to such nuisances which are or are liable to be dangerous to health or offensive. Dangerous to health is not defined (has its ordinary meaning), however, “offensive” means noxious or injurious to personal comfort.

127.2.4 A nuisance action could be taken against a Water Corporation in its own right or against any officer or member of the Water Corporation, if it was that party that participated in the cause of the nuisance or knowingly



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allowed the nuisance to continue to exist on the property or emanate from the property under its charge, ownership or occupation. Two or more persons may be charged with the same offence.

127.3 Other offences

There are a number of other offences under other public health legislation, such as the Food Act 1984 and Drugs Poisons & Controlled Substances Act 1981 which could affect Water Corporations and their members and officers. Like any other entity, however, the potential for liability is not any higher than any other statutory authority or person, and these offences are not specific to water industry type issues.

127.4 Status of offences

Offences set out under the PHW Act are criminal offences and members and officers of Water Corporations would not be afforded any immunity offered by the Water Act.

128 HEALTH (FLUORIDATION) ACT 1973

128.1 Pursuant to the Health (Fluoridation) Act 1973 (“HF Act”) a water supply authority may, and when required by the Secretary of the Department of Human Services must add fluoride to any public water supply under its control in the manner determined by the Secretary pursuant to this Act for dental health purposes (section 5 HF Act).

128.2 The term “water supply authority” is defined in section 2(1) of the HF Act to mean:

128.2.1 an Authority within the meaning of the Water Act that has a water district; or

128.2.2 a council performing water supply functions under the Local Government Act 1989; or

128.2.3 Melbourne Water Corporation.

128.3 Before adding fluoride to any public water supply under its control a water supply authority shall (section 6 HF Act):

128.3.1 submit to the Secretary plans and specifications for the proposed scheme for fluoridation;

128.3.2 specify the public water supply and the district or districts in respect of which such scheme is intended to operate; and

128.3.3 furnish to the Secretary such further information as the Secretary in case may require.

128.4 Section 4 of the HF Act provides that no person has any right of action against the water supply authority, its members or agents, for putting fluoride into the water supply in accordance with the HF Act.



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129 MINERAL RESOURCES (SUSTAINABLE DEVELOPMENT) ACT 1990

129.1 General

129.1.1 The Mineral Resources (Sustainable Development) Act 1990 ("MR(SD) Act") governs the legal framework to facilitate exploration for minerals and continuation of mining operations including the granting of licences and approvals.

129.1.2 The objectives of the MR(SD) Act are to encourage and facilitate the exploration for minerals and to foster the establishment and continuation of mining operations in Victoria.

129.1.3 The MR(SD) Act is administered by the Department of Primary Industries (“DPI”) which is empowered to grant rights for the exploration and mining of minerals, excluding water stone and petroleum.

129.1.4 DPI may grant licences for exploration and mining, miners' rights to search for minerals or tourist fossicking authorities. It is an offence for a person other than the Crown to search for minerals, or to do work without a licence or authority under the MR(SD) Act.

129.1.5 Ownership of minerals remains with the Crown until the minerals are separated from the land under a licence or other authority granted under the MR(SD)Act.

129.2 Licences and authority to commence work

129.2.1 A licence for exploration (section 13 MR(SD) Act) or mining (section 14 MR(SD) Act) can be granted in respect of private land without the owner's or occupier's consent. Notice of an application for a licence must be given to the owner or occupier and, if the land is agricultural, the owner can object to the granting of the licence if it can be established that there would be greater economic benefit for Victoria in using the land for agricultural purposes rather than for mining.

129.2.2 Compensation must be paid to an owner, or agreed upon, before an authority to commence work will be granted under the licence (Part 8 MR(SD) Act).

129.2.3 Where an application is made for a licence in respect of restricted Crown land, the Minister of the Department must consult with the Ministers under the Crown Land (Reserves) Act 1978 and the Forests Act 1958 and make recommendations as to the conditions which may apply to the licence (section 15(5A) MR(SD) Act). Similarly, these consultations must take place when a work plan is lodged before an authority order to commence work in respect of a licence.

129.2.4 If Crown land is particularly environmentally sensitive, it may be classified as restricted Crown land under Schedule 3 and the consent of the ministers under the Crown Land (Reserves) Act 1978 and the Forests Act 1958 is required before a licensee can commence any work under a licence. However, no consent is required to commence work



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under a licence affecting unrestricted Crown land provided the terms and conditions of the licence are abided by.

129.2.5 Where the approval of a work plan or the carrying out of any work under a licence, in relation to Crown land, has or will result in damage, the Minister can require the licensee to pay compensation for the loss or damage.

129.2.6 If a licensee proposes to commence work on land, the licensee must obtain the owner's consent and the owner must indicate its decision within 28 days (section 44(5) MR(SD) Act). Where the owner refuses consent it must, within 7 days after that decision, give the licensee a statement in writing of the reasons for its decision (section 44(7) MR(SD) Act).

129.2.7 A licensee who proposes to do work under the licence on land that is owned or vested in or managed or controlled by Melbourne Water under the Water Act, must obtain consent.

129.2.8 A licensee may only do work under the licence at a depth of more than 0.75m below any land that is within 100m of a waterway that is owned by, vested in, or managed or controlled by an Authority under the Water Act or any main drains, sewers, aqueducts, channels or pipelines of that Authority, after consultation with that Authority (section 44(8).

129.3 Miner's right

129.3.1 A miner's right entitles a holder to search for minerals using non-mechanical hand tools and without using explosives or removing any trees or shrubs on the land (section 58 MR(SD) Act).

129.3.2 A miner's right will only be granted in respect of private land with the consent of the owner or occupier of the land and may be granted in respect of Crown land, other than land exempted because it is environmentally sensitive.

129.4 Tourist fossicking authority

Similarly, a tourist fossicking authority allows the holder, or any employee or agent of the holder if the holder is not a natural person, to search for minerals using non-mechanical hand tools. It prohibits explosives or the removal or damage of trees or shrubs on the land (sections 59 and 62 of the MR(SD) Act). A tourist fossicking authority will only be granted with the consent of the owner/occupier of private land or Crown land other than exempt land under the MR(SD) Act (section 59 MR(SD) Act).

130 EXTRACTIVE INDUSTRIES DEVELOPMENT ACT 1995

130.1 Extracting Stone from land

130.1.1 The Resources Industry Legislation Amendment Act 2009 which commenced on 1 January 2010, repealed the Extractive Industries Development Act 1995 (“EID Act”) from this date and substantially re-enacted the provisions into Part 6A of the MR(SD) Act.



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130.1.2 The MR(SD) Act creates the legal framework for the approval and granting of permits and authorities for the extraction of stone from land.

130.1.3 The MR(SD) Act is intended to ensure that the extractive industry is carried out with safe operating standards and in a manner that ensures the rehabilitation of quarried land to a safe and stable landform.

130.1.4 The MR(SD) Act is administered by the DPI.

130.1.5 The MR(SD) Act makes it an offence to search for stone or carry out any extractive industry on Crown land or private land without a permit or work authority.

130.2 Permit to search for stone

130.2.1 Where land is privately owned, the consent of the owner of the land must be obtained before a search for stone is carried out. The MR(SD) Act gives a general authority to the DPI to enter upon private land and search for stone. However, the owner of the land must be compensated by the DPI for any damage caused to the land as a result of a search for stone.

130.2.2 Where the land is owned by, vested in or managed or controlled by an Authority under the Water Act, the Authority’s consent is required before work can commence. In the event of an application for consent, if the Authority does not consent or refused to consent, then consent is deemed to have been granted. Where land is within 100 metres of a waterway vested in an Authority under the Water Act or any main drain, sewers, aqueducts, channels or pipelines, work may only be done to a depth of more than 0.75 metres after consultation and the owner may specify conditions. Where refusing consent to commence work, a statement in writing of the reasons for its decision must be given within 7 days of the decision to refuse.

131 TERRORISM (COMMUNITY PROTECTION) ACT 2003

131.1 General

131.1.1 The main purpose of the Terrorism (Community Protection) Act 2003 (“T(CP) Act”) is to provide for new powers and obligations on the police and essential services relating to the prevention of, and the response to terrorist acts.

131.1.2 The T(CP) Act is due to expire on 1 December 2016.

131.2 Essential services

131.2.1 The Governor in Council may, on the recommendation of the Minister responsible for the essential service, with the approval of the Premier, give an authorisation for the exercise of special powers on any person in order to protect an essential service from a terrorist act, to mitigate the effects of a terrorist act or for the recovery of the essential service from a terrorist act (section 21F T(CP) Act).



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131.2.2 The term “essential service” is defined in section 26 to include water and sewerage.

131.2.3 The Chief Commissioner of Police for Victoria, may give a public entity, such as a Water Corporation, directions with respect to the powers or functions of that entity which must be complied with (section 21L T(CP) Act).

131.2.4 Part 4 of the T(CP) Act deals with mandatory reporting about prescribed chemicals and other substances. Section 22(1) states that an occupier of any premises, on becoming aware of a theft, attempted theft or unexplained loss from those premises of a quantity of prescribed chemicals or other prescribed substances, must inform a member of the police force. If the chemical or substance is prescribed to be high consequence dangerous goods, then they must also inform the Victorian WorkCover Authority. The fine for an individual is 10 penalty units and for a body corporate 120 penalty units.

131.2.5 The Terrorism (Community Protection) (Chemicals and Substances) Regulations 2006, sets out what the prescribed chemicals and substances are.

131.2.6 Part 6 of the T(CP) Act provides for the involvement of the operators of essential services in planning for the protection of those essential services from the effects of terrorist acts.

131.3 The operator of a declared essential service (which means an essential service that the Governor in Council has declared by order in the Victoria Government Gazette, to be an essential service for the purpose of this part) must prepare a risk management plan for that essential service (section 29 T(CP) Act), the specifications of which are set out in this part of the Act.

132 TERRORISM INSURANCE ACT 2003 (CTH)

132.1 The purpose of the Terrorism Insurance Act 2003 (“TI Act”) is to render terrorism exclusion clauses ineffective in relation to loss or liabilities arising from a terrorist incident affecting eligible property located in Australia.

132.2 The TI Act also establishes a scheme for replacement terrorism insurance coverage for commercial property and business interruptions.

132.3 The TI Act does not appear to apply to the Victorian Water Corporations.

132.4 It is generally thought that Water Corporations do not benefit from the provisions of the TI Act and that Water Corporations should therefore:

132.4.1 carefully check their individual insurance policies to discover whether, or not, terrorist acts are so excluded; and

132.4.2 if those acts are so excluded, proceed with this knowledge.



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133 BUILDING ACT 1993

133.1 General

133.1.1 The Building Act 1993 is the main piece of legislation in Victoria regulating:

(a) building work;

(b) plumbing work;

(c) building standards; and

(d) the registration and conduct of building practitioners and plumbers.

133.1.2 In relation to building work, the Building Code of Australia is a national building standards code that has been enacted in all Australian States and Territories. In Victoria, the Building Code applies pursuant to the Building Regulations 2006, made under the Building Act. The Building Code and the Building Regulations:

(a) control the design, construction and use of buildings and places of public entertainment;

(b) set out standards for the construction and demolition of buildings;

(c) set out standards of safety for places of public entertainment;

(d) regulate matters relating to the use and maintenance of buildings and places of public entertainment;

(e) set out standards and matters relating to the maintenance of fire safety and safety measures;

(f) set out requirements for the safety of swimming pools and spas;

(g) set out requirements for the registration of cooling tower systems; and

(h) set out qualifications required for the registration of building practitioners.

133.1.3 The Building Code sets out standards and requirements that apply to different classes of buildings, which depend on the use or intended use of a building. Different standards and requirements apply to different classes of buildings.

133.1.4 In relation to plumbing work, the Plumbing Code of Australia is a national plumbing standards code that has been enacted in all Australian States and Territories. In Victoria, the Plumbing Code applies pursuant to the Plumbing Regulations 2008 made under the Building Act.

133.1.5 The Plumbing Code sets out standards and requirements for plumbing work.



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133.1.6 The Building Commission is a statutory authority established under Division 2 of Part 12 of the Building Act, to oversee and administer the building control system in Victoria. Sitting alongside the Building Commission are the following four bodies:

(a) the Building Appeals Board, an independent statutory body established under Part 10 of the Building Act, which hears and determines disputes about the application of the Building Regulations, the Building Code and parts of the Building Act, such as disputes about the issue of building permits;

(b) the Building Practitioners Board, an independent statutory body established under Part 11 of the Building Act, which administers the registration and professional standards of building practitioners;

(c) the Building Advisory Council, established under Part 12 of the Building Act, which provides advice to the Minister for Planning on the administration of the Building Act and the Building Regulations; and

(d) the Building Regulations Advisory Committee, established under Part 12 of the Building Act, which provides advice to the Minister for Planning on proposed amendments to the Building Regulations and accredits building products, construction methods and components or systems that are used in connection with building work.

133.1.7 The Plumbing Industry Commission is a statutory authority established under Part 12A of the Building Act. The Plumbing Industry Commission administers the licensing and registration of plumbers and the enforcement of plumbing standards. The Plumbing Industry Advisory Council, also established under Part 12A of the Building Act, provides independent advice to the Plumbing Industry Commission and the Minister for Planning on matters relating to the plumbing industry.

133.1.8 If undertaking public construction works, consideration should also be had of the Project Development and Construction Management Act 1994 as set out in Part 1 section 50.6 of this Manual.

133.2 Building permits

133.2.1 Section 16 of the Building Act provides that, unless an exemption applies, a person must not carry out ‘building work’ unless a building permit has been issued and is in force, and the work is carried out in accordance with the Building Act, the Building Regulations and the building permit. A failure to comply is an offence carrying a maximum penalty of 500 penalty units for an individual (currently $70,420) and 2500 penalty units for a corporation (currently $352,100).

133.2.2 ‘Building work’ is defined in section 3 of the Building Act as meaning “work for or in connection with the construction, demolition or removal of a building”. A ‘building’ is defined to include a “structure, temporary building, temporary structure and any part of a building or structure”.



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133.2.3 A number of specific exemptions from the requirement for a building permit are listed in the table to Schedule 8 of the Building Regulations.

133.2.4 An application for a building permit is made in the prescribed form in the Building Regulations (Form 1) and may be made to a municipal building surveyor employed by a municipal council or to a private building surveyor appointed under Part 6 of the Building Act.

133.2.5 A building surveyor will decide whether to issue or refuse a building permit. A building permit will contain conditions and will generally require compliance with the applicable parts of the Building Regulations and the Building Code.

133.2.6 A building permit will specify whether an occupancy permit issued by the building surveyor is required upon satisfactory completion of the building work. An occupancy permit can be required for all or part of a building. Generally an occupancy permit will be required for all building work, except for building work that the building surveyor considers to be minor or building work that the building surveyor considers does not compromise the suitability of the building for occupation.

133.2.7 If an occupancy permit is required, the building cannot be occupied until the occupancy permit is issued.

133.2.8 The requirement for a building permit is in addition to any requirement for a planning permit under the provisions of the applicable planning scheme.

133.2.9 It is recommended that professional advice always be sought whenever building work is to be undertaken.

133.3 Inspection of building work

133.3.1 The building surveyor that issued a building permit is responsible for inspecting building work undertaken pursuant to the building permit.

133.3.2 A person in charge of carrying out building work is required to notify the relevant building surveyor upon the completion of each mandatory notification stage of the building work, to allow an inspection to take place.

133.3.3 Upon inspecting building work, the relevant building surveyor can make whatever directions as are appropriate in relation to the building work to ensure that the building work complies with the building permit, the Building Regulations and the Building Act.

133.3.4 Offences apply for failing to comply with a building permit.

133.4 Protection of adjoining property

133.4.1 Part 7 of the Building Act relates to the protection of adjoining property. Where the Building Regulations require protection work in respect of an adjoining property to be carried out, before commencing the building work, a notice must be served on the owner of the adjoining property



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and the relevant building surveyor advising of the proposed building work.

133.4.2 An adjoining owner is entitled within 14 days to agree or disagree to the proposed protection work.

133.4.3 In the event of disagreement, the relevant building surveyor must give the adjoining owner a right to be heard and then determine the issue. An appeal to the Building Appeals Board can be made for a determination in the event of further dispute.

133.5 Building enforcement: building notices and building orders

133.5.1 Every municipal council in Victoria must appoint, employ or nominate a person as its municipal building surveyor. In addition to the ability to issue and make decisions regarding building permits (as in the role of a private building surveyor), a municipal building surveyor has responsibility for administering and enforcing in the council’s municipal district, the provisions of the Building Act relating to building permits, the inspection of building work, places of public entertainment and the protection of adjoining property.

133.5.2 A municipal building surveyor is empowered to make an emergency order if the municipal building surveyor is of the opinion that the order is necessary because of a danger to life or property arising out of:

(a) the use or proposed use of a building;

(b) the land on which building work is being or is proposed to be carried out; or

(c) a place of public entertainment.

133.5.3 An emergency order can:

(a) require the evacuation of the building, land or place;

(b) require the cessation of public entertainment in a place of public entertainment;

(c) require the cessation of building work;

(d) require necessary work to be undertaken to make the building, land or place safe or to secure the building, land or place from access;

(e) prohibit the occupation of a building or place of public entertainment for a period not exceeding 48 hours; or

(f) prohibit the use of a building or place of public entertainment for a period not exceeding 48 hours.

133.5.4 A municipal building surveyor or a private building surveyor may cause a building notice under section 106 of the Building Act to be served on an



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owner of a building, land on which building work is being or is to be carried out or a place of public entertainment, if the relevant building surveyor is of the opinion that:

(a) building work has been carried out without a building permit, or in contravention of a building permit;

(b) the use of the building contravenes the Building Act or the Building Regulations;

(c) the building or place is unfit for occupation or use as a place of public entertainment; or

(d) the building, land or place is a danger to the life, safety or health of any member of the public or any person using the building, land or place or to any property.

133.5.5 A building notice will require the owner of the land to show cause within a specified period stated in the notice why:

(a) occupation of the building or place or its use for public entertainment should not be prohibited; or

(b) the owner should not either evacuate the building, land or place or carry out building work, protection work or work required by the Building Regulations in relation to the building, land or place.

133.5.6 A municipal building surveyor or a private building surveyor can make a building order under section 111 of the Building Act after the expiry of the time period for making representations in a building notice if the relevant building surveyor considers that it is appropriate to make such an order.

133.5.7 A building order issued under section 111 of the Building Act can:

(a) prohibit the occupation of a building;

(b) prohibit the occupation of a place of public entertainment for its use for public entertainment;

(c) require the owner of a building, land on which building work is or is proposed to be carried out or a place of public entertainment to:

(1) evacuate the building, land or place; or

(2) carry out building work, protection work or other work required by the Building Regulations or to carry out a program of work, as set out in the order.

133.5.8 A municipal building surveyor or a private building surveyor pursuant to section 112 of the Building Act can make a building order that requires an owner or other person to stop building work. A stop work order can be made if the relevant building surveyor is of the opinion that the building work:



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(a) contravenes the Building Act or the Building Regulations;

(b) is a danger to the life, safety or health of any member of the public or any person using the building, land or place or to any property; or

(c) affects the support of any adjoining property.

133.5.9 A stop work order under section 112 of the Building Act can be made without a building notice having first been served.

133.5.10 A municipal building surveyor or a private building surveyor can make a minor work building order pursuant to section 113 of the Building Act without having first served a building notice if the relevant building surveyor is of the opinion that work to be carried out is of a minor nature.

133.5.11 It is an offence to fail to comply with an emergency order or a building order. The maximum penalty for an individual is 500 penalty units (currently $70,420) and 2500 penalty units for a corporation (currently $352,100).

133.5.12 A private building surveyor must refer any contravention of a building order that that building surveyor has issued to the Building Commission for investigation and enforcement. A municipal building surveyor may either refer a contravention of an emergency order or a building order to the Building Commission or take enforcement action, as appropriate.

133.6 Plumbing work

133.6.1 Part 12A of the Building Act relates to plumbing work. This Part of the Building Act for the most part operates separately from the rest of the Building Act.

133.6.2 Section 221D of the Building Act provides that a person must not carry out any plumbing work of a particular class or type unless he or she is licensed or registered by the Plumbing Industry Commission to carry out plumbing work of that class or type.

133.6.3 ‘Plumbing work’ is defined in regulation 10(1) of the Plumbing Regulations as:

(a) backflow prevention work;

(b) drainage work;

(c) fire protection work;

(d) gasfitting work;

(e) irrigation (non-agricultural) work;

(f) mechanical services work;

(g) refrigerated air-conditioning work;



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(h) roofing (stormwater) work;

(i) sanitary work;

(j) type A appliance conversion work;

(k) type A appliance servicing work;

(l) type B gasfitting work;

(m) type B gasfitting advanced work; and

(n) water supply work.

133.6.4 Of importance to Water Corporations is that Regulation 10(2) of the Plumbing Regulations provides that the following is not plumbing work for the purposes of the Building Act:

(a) any work carried out in relation to a supply or discharge reticulation system or a treatment plant or any equipment, appliance, fixture or system associated with that system (other than any equipment, appliance, fixture or system used mainly for administrative or ablution purposes) owned, or exclusively vested in:

(1) a gas company; or

(2) a Water Corporation that has a water district or a sewerage district under the Water Act;

(b) the internal design, construction, installation, replacement, repair, alteration, maintenance, testing or commissioning of any integral part of an on-site wastewater management system device or an on-site liquid trade waste management system device;

(c) the opening or closing of inspection opening caps and covers in sewage, stormwater and waste pipes;

(d) the clearing of blockages, or closed circuit television inspection of sewage, stormwater and waste pipes, using existing inspection openings or removable grates;

(e) the connection for water use of hoses from appliances such as dishwashers and clothes washing machines to taps;

(f) the connection of hoses to taps for the purposes of activities that use water including cleaning or watering a garden;

(g) the connection of irrigation systems or devices to hose taps for the purposes of watering a garden or irrigation;

(h) the installation of a refrigerated package appliance; and



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(i) design work where that design work is carried out by a person in their capacity as-

(1) a building practitioner;

(2) an architect;

(3) a draftsperson;

(4) an engineer;

(5) a landscape architect; or

(6) a designer-

unless the design work is incidental to, or associated with, plumbing work (that is not design work) that is or will be carried out by that person.

133.6.5 Division 3 of Part 12A of the Building Act provides for the licensing and registration of plumbers. Under this Division, plumbers are registered with the Plumbing Industry Commission and are licensed to carry out particular classes of plumbing work.

133.6.6 Offences and penalties apply to persons who undertake plumbing work without being registered and licensed to undertake that particular type of plumbing work.

133.6.7 A plumber must issue a compliance certificate pursuant to section 221ZH of the Building Act in respect of:

(a) plumbing work that has a total value of $500 or more;

(b) any gasfitting work;

(c) the construction, installation or alteration of any below ground sanitary drain or associated gullies; and

(d) the construction, installation, alteration, relocation or replacement of a cooling tower or of any other part of a cooling tower system.

133.6.8 The Building Act and the Plumbing Regulations set out standards and requirements that a plumber must meet in order to become licensed and set out requirements in relation to specific plumbing work.

133.6.9 Of potential relevance to Water Corporations is section 221ZP of the Building Act, which provides that if a licensed plumber undertakes sanitary drainage work, the pipes or pipework must not be covered unless the licensed plumber has notified the Plumbing Industry Commission that the work will be available for inspection at a particular time; and:

(a) an authorised officer of the Plumbing Industry Commission has inspected the work and authorised it to be covered; or



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(b) an authorised officer of the Plumbing Industry Commission has not arrived to inspect the work at least half an hour after the time made available to inspect the work.

133.7 Enforcement and compliance: plumbing laws

133.7.1 The enforcement provisions in the Building Act relating to plumbing work concern compliance with the ‘plumbing laws’. The plumbing laws are the Building Act, the Plumbing Regulations, the Gas Safety Act 1997 and the Water Act.

133.7.2 A plumbing inspector or compliance auditor appointed by the Plumbing Industry Commission can serve a rectification notice pursuant to section 221ZW of the Building Act requiring the rectification of plumbing work that does not comply with any plumbing laws. Offences and penalties apply for failing to comply with a rectification notice. An application to the VCAT can be made to have a rectification notice set aside.

133.7.3 A plumbing inspector can issue a plumbing notice pursuant to section 221ZY of the Building Act if the plumbing inspector is of the opinion that plumbing work has been carried out on any land or in any building that:

(a) contravenes any plumbing laws;

(b) would contravene any plumbing laws if it were to be used; or

(c) may be a danger to the life, safety or health of any person or may pose a risk of damage to any property.

133.7.4 A plumbing inspector can issue a plumbing order to the owner or occupier of any land or building under section 221ZZB of the Building Act if the plumbing inspector has issued a plumbing notice and the plumbing inspector considers it appropriate to issue a plumbing order requiring compliance.

133.7.5 It is an offence to fail to comply with a plumbing order. The maximum penalty is 60 penalty units for an individual (currently $8,450.40) and 120 penalty units for a corporation (currently $16,900.80). A review of a plumbing order can be sought in VCAT.

133.7.6 A plumbing inspector can make an emergency plumbing order under section 221ZZF of the Building Act without first having issued a plumbing notice in situations of an immediate danger to the life, safety or health of any person or there is an immediate risk of significant damage to any property. An emergency plumbing order can require work to be undertaken and/or the evacuation of any land or building. An emergency plumbing order can prohibit the occupation or use of the land or building for a period of up to 48 hours.

133.8 Works on roads

133.8.1 The Road Management Act 2004 (“RM Act”) is the main Victorian legislation that deals with works on roads.



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133.8.2 Section 5 of the RM Act sets out how the RM Act should be interpreted and applied.

133.8.3 Section 5(5) of the RM Act states:

“The Building Act 1993 does not apply to, or in respect of, any infrastructure or structure on, over or under, land or a stratum that forms part of a road unless the infrastructure or structure –

(a) is installed or constructed on adjacent land and extends over, onto or under the road; or

(b) is a building on an ancillary area or roadside”.

133.8.4 An “ancillary area” is defined in section 3(1) of the RM Act to mean an area designated as an ancillary area by a coordinating road authority under section 18 of the RM Act. For example a “park and ride” carpark, rest stop or scenic lookout could be an ancillary area.

133.8.5 The “roadside” is essentially the nature strip. It is defined in section 3(1) of the RM Act as:

“any land that is within the boundaries of a road (other than the shoulders of the road) which is not a roadway or a pathway and includes the land on which any vehicle crossing or pathway which connects from a roadway or pathway on a road to other land has been constructed.”

133.8.6 Section 5(5) of the RM Act is unclear, however the examples for this section shed some light on it. Essentially the examples state that the Building act does not apply to:

(a) structures such as bridges, culverts and tunnels that form part of the road itself; or

(b) structures such as a hotel balcony or a shop verandah that extends over a footpath, a building that straddles a road or that is beneath an elevated road or bridge above a road tunnel.

133.8.7 Water Corporations would still need consents to conduct works on roads under the RM Act unless such works are exempt (see the next section 134. Whether the project also requires a building permit under the Building Act should be considered on a case by case basis.

133.9 Easements

133.9.1 Regulation 310 of the Building Regulations provides that the report and consent of a service authority must be obtained to an application for a building permit to construct a building over an easement vested in that service authority.

133.9.2 A service authority is defined to include a drainage authority, a sewerage authority and a water supply authority. Interestingly, the note to



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regulation 310 refers to section 148 of the Water Act (see Part 1 sections 5.2.11 and 13.15).

134 ROAD MANAGEMENT ACT 2004

134.1 General

134.1.1 The Road Management Act 2004 (“RM Act”) has rewritten the law in relation to infrastructure in, on, under and over road reserves.

134.1.2 Part 5 dealing with protection of roads and Schedules 5 and 7 of the RM Act are of the most importance to Water Corporations.

134.2 Conducting works and consents

134.2.1 Section 137 of the Water Act provides that a Water Corporation may enter upon any road for the purpose of carrying out any works that Water Corporation is empowered to carry out and that it can also close the road to traffic if necessary to do so to carry out those works.

134.2.2 However, section 137 of the Water Act makes it clear that this section is subject to the RM Act.

134.2.3 Section 63 of the RM Act provides that it is an offence to carry out works on roads without the consent of the coordinating road authority. The coordinating road authority will be:

(a) VicRoads for arterial roads and freeways;

(b) municipal councils for most other government roads and subdivisional roads; and

(c) DSE for other State roads such as roads through National Parks.

134.2.4 There are however, a number of to the requirement to obtain the consent to conduct works. These include:

(a) an exemption in the case of an emergency; and

(b) an exemption in accordance with the regulations.

134.2.5 Therefore, despite any other Act, including the Water Act, Water Corporations would prima facie, unless an exemption applies, require consent from either VicRoads, a municipal council, or DSE prior to installing any of its infrastructure in, on, over or under a road reserve.

134.2.6 A coordinating road authority has the ability to grant consent to do works on any reasonable conditions it thinks fit. There are however several limitations to this, which are set out in regulation 14 of the Road Management (Works and Infrastructure) Regulations 2005. The restrictions or limitations on what can be imposed on a consent should be consulted each time a consent is issued.

134.2.7 It may be that a coordinating road authority may, rather than grant a simple consent, require the Water Corporation to enter into a detailed



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works agreement pursuant to clause 18 of Schedule 7 of the RM Act. The restrictions on the conditions that can be imposed on consents, apply, in the authors’ view, to these works agreements.

134.2.8 There is no general right of appeal if a coordinating road authority refuses to grant consent to conduct works, or grants consents with onerous or unclear conditions. Negotiating before hand is therefore, most important.

134.3 Power to remove, relocate, replace or upgrade infrastructure

134.3.1 Clause 20 of Schedule 7 provides that a coordinating road authority may, for the purpose of improving the safety or efficient operation of a road, by notice require an infrastructure manager responsible for existing infrastructure on a road, to remove, relocate, replace or upgrade that infrastructure. For example, a council may ask a Water Corporation to remove a pipe from a road because the council wants to upgrade the road.

134.3.2 Any notice given to a Water Corporation for the purposes mentioned above must specify:

(a) the reason for requiring the removal, relocation, replacement or upgrade;

(b) the applicable standard to be met; and

(c) the period within which the removal, relocation, replacement or upgrade is to be completed.

134.3.3 The coordinating road authority must meet the costs reasonably incurred by the infrastructure manager in completing the removal, relocation, replacement or upgrade to the applicable standard.

134.4 Fixtures

Clause 10 of Schedule 5 of the RM Act provides that any infrastructure installed on a road reserve is the personal property of the person who installed it. This overcomes any legal argument in relation to the law of fixtures. In other words, notwithstanding that a pipe may be installed in the ground below the surface of the road, the pipe remains the property of the Water Corporation and the Water Corporation will be liable for any loss or damage caused by its infrastructure in the road reserve.

134.5 Duties on Water Corporations

134.5.1 Schedule 7 of the RM Act deals with installing the infrastructure and carrying out of works on road reserves. There are a number of specific duties imposed on infrastructure managers and works managers in this Schedule and this Schedule must be complied with by all Water Corporations and their contractors when dealing with road works.



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134.5.2 There are a number of regulations and Codes of Practice that also should be complied with when installing or removing infrastructure from roads.

134.5.3 Road law is complex and the RM Act does not make the law any easier, but in fact further complicates matters. Advice should be sought on individual projects on a case by case basis to determine whether road authorities can lawfully seek to impose conditions, or enter into agreements or even ask water businesses to remove infrastructure.

134.6 Regulations and Codes of Practice

134.6.1 Regulations

(a) Road Management (General) Regulations 2005.

(b) Road Management (Works and Infrastructure) Regulations 2005.

134.6.2 Codes of Practice

(a) Code of Practice for Operational Responsibility for Public Roads (2004) - this Code provides guidance in determining the physical limits of operational responsibility between road authorities for the different parts of elements within the road reserve of public roads.

(b) Code of Practice for Clearways on Declared Arterial Roads (2004) – this Code provides guidance to VicRoads in the establishment of proper management and consultation processes with regard to the implementation of clearways on declared arterial roads.

(c) Code of Practice for Road Management Plans (2004) this Code provides guidance to VicRoads in the making of a road management plan for the inspection, maintenance and repair of public roads.

(d) Code of Practice for Management of Infrastructure in Road Reserves (2008) – this Code provides guidance for road authorities and utilities in planning and managing their infrastructure in road reserves.

(e) Code of Practice for Worksite Safety – Traffic Management (2010) – this Code provides practical guidance to any person conducting, or proposing to conduct, any works on roads in Victoria.

135 CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006

The Charter of Human Rights and Responsibilities Act 2006 (“Charter”) commenced operation on 1 January 2007 and became fully operative on 1 January 2008.

135.1 What are the human rights protected?

The Charter aims to protect 20 civil and political rights which are derived from the International Covenant on Civil and Political Rights. These human rights can be remembered using the acronym ‘FREDA’:



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Freedom Movement, assembly and association, expressions, religion and belief, liberty, fair hearing

Respect Life, protection of families, cultural rights

Equality Non-discrimination, equal recognition

Dignity Torture and cruel treatment, privacy and reputation, humane treatment in detention

Autonomy Taking part in public life

135.2 What does the Charter mean for Water corporations?

135.2.1 The Charter:

(a) creates a positive obligation on public authorities (including a Water Corporation), to give “proper consideration” to human rights in “decision making processes”; and

(b) imposes a duty on public authorities to “act” compatibly with human rights (see section 38(1) of the Charter).

135.2.2 The Charter makes it unlawful for a public authority to act in a way that is incompatible with a human right, or, in making a decision, to fail to give proper consideration to a relevant human right.

135.2.3 An “Act” is defined in the Charter to include not just a positive act. but also a failure to act and a proposal to act (section 3 of the Charter). This is a substantive obligation. A failure to act compatibly with human rights is unlawful and beyond power and may entitle the person affected to seek injunctive or declaratory relief. Other jurisdictions with similar charters have considered such acts to be ultra vires.

135.2.4 Procedurally, a public authority must give proper consideration to human rights in their decision making processes.

135.2.5 The term “making a decision” is not defined in the Charter, however, it is our view that it could encompass the following:

(a) decisions regarding licence applications from applications to review (see Carwoode v Cardinia [2008] VCAT 1334);

(b) decisions to compulsorily acquire land;

(c) decisions of an administrative nature, such as hiring employees and contractors, entering into general contracts, and entering into contracts for the sale and purchase of land; and

(d) decisions and actions in the provision of social and community services and when undertaking prosecution or enforcement action.



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135.2.6 What is “proper consideration” has been held by courts to mean that more than cursory assessment is required.

135.3 Breach of the Charter

135.3.1 Specifically, section 38 of the Charter provides that, “it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right”. Such an action or decision will not be unlawful where the public authority “could not reasonably have acted differently or made a different decision” in accordance with the legislation (section 38(2) of the Charter). This exemption may apply to procedures or processes set out in legislation, but is unlikely to apply where the legislation provides discretion to a public authority.

135.3.2 While the terms of the Charter refer to “unlawful” actions in section 38, there is no penalty or damages available for an established breach. In other words, a breach of the Charter does not of itself give rise to an independent cause of action.

135.3.3 However, while the Charter does not create an automatic right of review, the wording of section 39 of the Charter suggests that where a person has a right of review arising from an unlawful act or decision of a public authority, then any unlawfulness arising from a breach of the Charter could be used as a ground in those proceedings.

135.3.4 Further, an act that may not have been unlawful but for the Charter, may become unlawful (eg, ultra vires) if the lawful act, was incompatible with a human right, as the Charter requires that a public authority act compatibly with human rights. The outcome of which could be a determination that the decision was beyond the power of public authority and the public authority will be required to reconsider the decision taking into account the Charter.

135.4 Conclusion

135.4.1 While general in nature, the Charter will have an impact on public authorities. We recommend that in making any decision, the public authority notes the words in section 38 of the Charter, and gives proper consideration to the relevant human right, if any, that may be impacted by its decision.

135.4.2 An annual review of the Charter (required by section 41(a) of the Charter), conducted by the VEOHRC is underway which includes consultation with municipal councils as to their experience with implementation of the Charter.

136 INTERNATIONAL TREATIES AND OBLIGATIONS

136.1 Introduction

136.1.1 Due to the external affairs power in the Commonwealth Constitution, the Commonwealth Government has the power to enter into international treaties. The legal force of such treaties is the subject of continued



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debate in this country. International treaties and conventions do not form part of domestic law in Australia unless specifically adopted. A treaty, convention or agreement is not binding unless an Act of an Australian Parliament (State or Commonwealth) incorporates its terms by enacting domestic legislation. Despite the non-binding nature of these agreements, governmental bodies, statutory corporations and the public in general are encouraged to assist in the fulfilment of Australia's obligations pursuant to them. For that reason Water Corporations should be aware of the international agreements outlined below.

136.1.2 Water Corporations should be aware that there is increasing support for State and Commonwealth environmental legislation to give statutory effect to treaties that Australia has entered into. Two important examples are the Flora and Fauna Guarantee Act 1988, (discussed at section 72 of this Manual) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”), (discussed at section 56 of this Manual). Such legislation is specifically linked to many of the treaties and they place obligations (such as obtaining a permit or undertaking an environmental impact assessment) on members in circumstances where a proposed activity may negatively impact upon an aspect of the environment protected under a treaty Australia has entered into.

136.2 The Ramsar Convention - The Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 1971

136.2.1 The Convention on Wetlands was signed in Ramsar, Iran in 1971 and is a treaty which provides the framework for the conservation of wetlands and their resources. There are presently 2056 wetland sites, totalling 193 million hectares, designated for inclusion in the Ramsar List of Wetlands of International Importance.

136.2.2 The International Union for the Conservation of Nature and Natural Resources is a world body charged with the responsibility of administrating the convention on an international level.

136.2.3 A list of RAMSAR Wetlands can be obtained from the Federal Government’s environment website: http://www.environment.gov.au/water/environmental/wetlands/ramsar/australia.html

136.2.4 In Australia there are currently 65 sites on the list, covering 8.1 million hectares. Eleven of these sites are in Victoria.

136.2.5 If at any time Water Corporations undertake any activities which may have an impact on a Ramsar Wetland, a referral should be made to the Federal Minister for Sustainability, Environment, Water, Population and Communities pursuant to the EPBC Act.

http://www.environment.gov.au/water/environmental/wetlands/ramsar/australia.html

http://www.environment.gov.au/water/environmental/wetlands/ramsar/australia.html



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136.3 The Bonn Convention - The Convention on the Conservation of Migratory Species of Wild Animals, 1979

136.3.1 The Bonn Convention seeks to protect species of wild animals that migrate across or outside national boundaries. Its emphasis is on conserving rare and threatened species.

136.3.2 If at any time Water Corporations undertake any activities which may have an impact on a migratory/threatened species, a referral should be made to the Federal Minister for Sustainability, Environment, Water, Population and Communities pursuant to the EPBC Act.

136.4 JAMBA - Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction and their Environment, 1974

136.4.1 JAMBA is a bilateral agreement between the Governments of Australia and Japan. It reinforces the terms of the Ramsar Convention. Australia's commitment to the protection of migratory birds, other than waterfowl, and birds in danger of extinction, is extended by the Agreement. An index of migratory birds protected by the Agreement is annexed to JAMBA.

136.4.2 The Agreement focuses on birds that migrate between Australia and Japan. It aims to promote cooperation in taking measures for the management and protection of migratory birds, birds in danger of extinction and also for the management and protection of their environs.

136.4.3 If at any time Water Corporations undertake any activities which may have an impact on a migratory/threatened species, a referral should be made to the Federal Environment Minister pursuant to the EPBC Act.

136.5 CAMBA - Agreement between the Government of Australia and The Government of The People's Republic of China for The Protection of Migratory Birds and Their Environment, 1986

CAMBA is an Agreement between the Governments of Australia and China. The terms are identical to those in the JAMBA Convention which are outlined above.

136.6 ROKAMBA - Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds, 2007

ROKAMBA is an Agreement between the Governments of Australia and the Republic of Korea. The terms are identical to those in the JAMBA Convention which are outlined above.

136.7 The Convention on The Conservation of Nature in the South Pacific (Apia) 1976

136.7.1 The Apia Convention aims to conserve, utilise and develop resources in the region by careful planning and management for the benefit of present and future generations. The Convention focuses on natural

http://www.austlii.edu.au/au/other/dfat/treaties/2007/24.html





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resources from a nutritional, scientific, educational, cultural and aesthetic perspective.

136.7.2 Various obligations are imposed on signatories by the Convention. Parties to the Convention are under a duty to:

(a) safeguard samples of natural ecosystems. The emphasis is on endangered species, superlative scenery, striking geological formations and regions and are objects of aesthetic interest or historic, cultural or scientific value;

(b) ensure that the boundaries of the national parks are not altered to reduce the area and that resources in national parks are not subject to exploitation for commercial profit. Furthermore, the hunting, killing, capture or collection of specimens of flora and fauna in national parks is prohibited, except when carried out by or under the direction or control of the appropriate Authorities or for duly authorised scientific investigations;

(c) endeavour to protect flora and fauna (with special attention to migratory species) so as to safeguard them from unwise exploitation and other threats that may lead to their extinction;

(d) protect as completely as possible any species of indigenous fauna or flora which is listed as being threatened with extinction. The hunting, killing, capture or collection of specimens of such species shall be allowed only with the permission of the appropriate Authority;

(e) protect as much as possible flora and fauna which appears on the threatened species list;

(f) conduct research in relation to the conservation of nature wherever practicable;

(g) develop programs of education and public awareness relating to conservation and nature with a view to achieving the objectives of the convention.

136.8 Convention for the Protection of World Cultural and Natural Heritage 1972

136.8.1 The Convention seeks to protect cultural and natural heritage of outstanding universal value for mankind as a whole.

136.8.2 The overarching obligation arising out of the convention is to ensure effective and active measures are taken to identify, protect and conserve natural heritage within the meaning of the Convention.

136.8.3 If at any time Water Corporations undertake any activities which may have an impact on the cultural heritage values of a heritage place, a referral should be made to the Minister for Sustainability, Environment, Water, Population and Communities pursuant to the EPBC Act



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136.9 The Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) 1973

136.9.1 CITES aims to regulate international trade in species threatened with extinction. The terms of the Convention are implemented by the EPBC Act.

136.9.2 CITES has a membership of 175 countries. These countries act by banning commercial international trade in an agreed list of endangered species and by regulating and monitoring trade in others that might become endangered.

136.10 The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (“London Convention”) 1972

136.10.1 The London Convention aims to improve the protection of the marine environment by encouraging states with a common interest in particular geographical areas to enter appropriate agreements supplementary to the Convention.

136.10.2 Australia implemented the Environment Protection (Sea Dumping) Act 1981 to ensure it complies with its obligations under the London Convention.

137 OTHER INTERNATIONAL INITIATIVES

Various national strategies and initiatives pertaining to the environment have been introduced by the various Commonwealth Governments. These provide a useful framework around which Commonwealth and State legislation can be developed. Some of the nation's most important environmental strategies and policy directions stem from the United Nations Conference on Environment and Development (“UNCED”) which was held in Rio De Janeiro in 1992. At that summit, Australia pledged to implement recommendations contained in several documents. The focus of the UNCED "Earth Summit" in Rio was the notion of sustainable development which has since been introduced into domestic legislation.