Upper South East Dryland Salinity and Flood Management Act 2002 [Act]

UPPER SOUTH EAST DRYLAND SALINITY AND FLOOD MANAGEMENT ACT 2002

being

Upper South East Dryland Salinity and Flood Management Act 2002 No. 48 of 2002 [Assented to 12 December 2002]¹

¹Came into operation 19 December 2002: Gaz. 19 December 2002, p. 4736.

SUMMARY OF PROVISIONS

PART 1

PRELIMINARY

1.Short title

2.Commencement

3.Interpretation

4.Identification of project and project area

5.Interaction with other Acts

PART 2

ADMINISTRATION

DIVISION 1—THE MINISTER

6.Functions of the Minister

7.General powers of the Minister

8.Power of delegation

DIVISION 2—AUTHORISED OFFICERS

9.Appointment of authorised officers

10.Powers of authorised officers

11.Hindering, etc., persons engaged in the administration of this Act

PART 3

IMPLEMENTATION OF PROJECT

DIVISION 1—VESTING OF LAND

12.Vesting of land for drainage purposes

13.Entitlement to compensation

14.Compulsory acquisition of land

DIVISION 2—MINISTER MAY UNDERTAKE WORKS

15.Minister may undertake works

DIVISION 3—MANAGEMENT AGREEMENTS

16.Management agreements

DIVISION 4—ENTRY ONTO LAND

17.Entry onto land

DIVISION 5—PRIVATE WORKS

18.Requirement for a licence

19.Procedure

20.Conditions

DIVISION 6—RELATED MATTERS

21.Fencing of works and drainage reserves

22.Property in water

PART 4

CONTRIBUTION TO FUNDING OF PROJECT

23.Contribution to funding of project

PART 5

PROTECTION OF PROJECT

DIVISION 1—OFFENCE

24.Project Undertaking not to be interfered with

DIVISION 2—ORDERS

25.Project orders

26.Reparation orders

27.Registration of order

28.Action on non-compliance with order

DIVISION 3—CIVIL REMEDIES

29.Civil remedies

PART 6

MISCELLANEOUS

30.Interim restraining orders to prevent environmental harm

31.Appeals

32.Provision of information

33.False or misleading information

34.Service

35.Use of staff

36.Annual report

37.Continuing offences

38.Liability of directors

39.Evidentiary provision

40.Power to waive or defer payments

41.Immunity provision

42.Right of action against person in default

43.ERD Committee to oversee operation of Act

44.Regulations

45.Expiry of Act

SCHEDULE 1

Project Works Corridors

SCHEDULE 2

Amendment of the South Eastern Water Conservation and

Drainage Act 1992 and Transitional Provisions

The Parliament of South Australia enacts as follows:

PART 1

PRELIMINARY

Short title

1. This Act may be cited as the Upper South East Dryland Salinity and Flood Management Act 2002.

Commencement

2. This Act will come into operation on a day to be fixed by proclamation.

Interpretation

3. (1) In this Act, unless the contrary intention appears—

"associate"—see subsection (2);

"authorised officer"—see section 9;

"construct", in relation to any works, includes—

(a)to establish, build or erect the works;

(b)to repair the works;

(c)to make alterations to the works;

(d)to enlarge or extend the works;

"council" means a council under the Local Government Act 1999;

"Court" means the Environment, Resources and Development Court established under the Environment, Resources and Development Court Act 1993;

"Crown land" means—

(a)land that has not been granted in fee simple, but not including land held under a Crown lease under the Crown Lands Act 1929 or the Pastoral Land Management and Conservation Act 1989; or

(b)land vested in fee simple in—

(i)a Minister; or

(ii)another agency or instrumentality of the Crown; or

(iii)the Crown;

"drainage reserve" means any Crown land that is dedicated, reserved or set aside for drainage purposes;

"environment" means land, air, water, vegetation, organisms and ecosystems;

"infrastructure" includes—

(a)artificial lakes;

(b)dams or reservoirs;

(c)embankments, walls, channels, drains, drainage holes or other forms of works or earthworks;

(d)any item or thing used in connection with—

(i)testing, monitoring, protecting, enhancing or re-establishing any key environmental feature; or

(ii)any other environmental program or initiative;

(e)bridges and culverts;

(f)buildings and structures;

(g)other items brought within the ambit of this definition by the regulations;

"key environmental feature" means any of the following aspects of the environment located or occurring within the Upper South East that are identified as key environmental features by the Minister by notice in the Gazette:

(a)wetlands;

(b)water resources;

(c)native vegetation;

(d)natural habitats;

(e)environmental biodiversity;

(f)other aspects of the environment that the Project is intended to protect or enhance;

"lake" means a natural lake, pond, lagoon, wetland or spring (whether modified or not) and includes—

(a)part of a lake; and

(b)a body of water declared by regulation to be a lake;

"land" means, according to the context—

(a)land as a physical entity, including land covered by water;

(b)any legal estate or interest in land, or right in respect of, land;

"licence" means a licence under Division 5 of Part 3;

"management agreement" means an agreement under Division 3 of Part 3;

"native vegetation" has the same meaning as in the Native Vegetation Act 1991;

"owner" of land means—

(a)if the land is unalienated from the Crown—the Crown; or

(b)if the land is alienated from the Crown by grant in fee simple—the owner (at law or in equity) of the estate in fee simple; or

(c)if the land is held from the Crown by lease or licence—the lessee or licensee, or a person who has entered into an agreement to acquire the interest of the lessee or licensee; or

(d)if the land is held from the Crown under an agreement to purchase—the person who has the right to purchase; or

(e)a person who has arrogated to himself or herself (lawfully or unlawfully) the rights of an owner of the land;

"place" includes any land, premises or structure;

"Project" means the scheme established under section 4;

"Project Area" means those areas of land described or delineated under section 4(3);

"Project Undertaking" means—

(a)any Project works; or

(b)any drainage reserve that is directly or indirectly related to the implementation of the Project; or

(c)any other facilities or programs established or undertaken, or proposed to be established or undertaken, for the purposes of the Project; or

(d)the performance of any work or activity undertaken, or proposed to be undertaken, for the purposes of the Project,

and includes all land within a project works corridor, or otherwise held, used or occupied by the Minister for the purposes of the Project;

"Project works" means—

(a)any works constructed, maintained or held by the Minister for the purposes of the Project; and

(b)any other works brought within the ambit of this definition by the regulations;

"project works corridor" means—

(a)any land described in Part A of Schedule 1; or

(b)any land on either side of any line described in Part B of Schedule 1 to a distance of 100 metres on each side of the line;

"Project works scheme" means any scheme for the undertaking of Project works by the Minister prescribed under section 4(2)(c);

"spouse" includes putative spouse (whether or not a declaration of the relationship has been made under the Family Relationship Act 1975);

"surface water" means—

(a)water flowing over land—

(i)after having fallen as rain or hail or having precipitated in any other manner; or

(ii)after rising or being brought to the surface from underground; or

(b)water of the kind referred to in paragraph (a) that has been collected in a dam or reservoir; or

(c)water of any other kind brought within the ambit of this definition by the regulations;

"underground water" means—

(a)water occurring naturally below ground level; or

(b)water pumped, diverted or released into an underground location;

"Upper South East" means that part of the State identified by the regulations as constituting the Upper South East for the purposes of this Act;

"Upper South East Project" means the scheme described in the Assessment Report, published by the Department of Housing and Urban Development in January 1995, relating to the Upper South East Dryland Salinity and Flood Management Plan developed by the Natural Resources Council on behalf of the South Australian Government, as modified from time to time;

"vehicle" includes any—

(a)boat;

(b)hovercraft or aircraft;

(c)plant or equipment that is designed to be moved or operated by a driver;

"watercourse" means a river, creek or other natural watercourse (whether modified or not) and includes—

(a)a dam or reservoir that collects water flowing in a watercourse; and

(b)a lake through which water flows; and

(c)a channel or drain (but not a channel or drain declared by regulations to be excluded from the ambit of this definition) into which the water of a watercourse has been diverted; and

(d)part of a watercourse;

"water resource" means a watercourse or lake, surface water or underground water;

"wetland" means a swamp or marsh and includes any land that is permanently or seasonally inundated with water;

"works" include any form of infrastructure.

(2) For the purposes of this Act, a person is an associate of another if—

(a)they are partners; or

(b)one is a spouse, parent or child of another; or

(c)they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or

(d)one is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body corporate or other entity; or

(e)one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in five per cent or more of the share capital of the body corporate or other entity; or

(f)they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or

(g)a relationship of a prescribed kind exists between them; or

(h)a chain of relationships can be traced between them under any one or more of the above paragraphs.

(3) For the purposes of subsection (2), a beneficiary of a trust includes an object of a discretionary trust.

(4) A reference in another Part of this Act to the Project Area is to be taken to include a reference to any part of the Project Area (unless the contrary intention appears).

(5) For the purposes of section 13, paragraph (e) of the definition of "owner" is excluded.

(6) For the purposes of the determination of the value of land under section 13(2)(b) or (3)(c), the value will be determined taking into account what price would be agreed between a willing but not anxious vendor and a prudent purchaser.

Identification of project and project area

4. (1) The Governor may, by regulation, establish a scheme to further the objects of this Act.

(2) The Governor may, in establishing the scheme—

(a)adopt the Upper South East Project with such modifications as the Governor thinks fit; and

(b)incorporate other elements; and

(c)set out a scheme for the undertaking of Project works by the Minister; and

(d)make any provision to further the objects of this Act,

and may then vary the scheme from time to time as the Governor thinks fit.

(3) The regulations must, for the purposes of the scheme and the operation of this Act, describe or delineate areas of land that are to constitute the Project Area.

Interaction with other Acts

5. This Act is in addition to and does not limit or derogate from the provisions of any other Act.

PART 2

ADMINISTRATION

DIVISION 1—THE MINISTER

Functions of the Minister

6. The Minister is to undertake the implementation of the Project and, in doing so, is to adopt the following functions:

(a)to provide an effective and efficient system for managing the surface water within the Project Area by conserving, draining, altering the flow or utilising the water in any manner;

(b)to carry out works for the purpose of altering the level of the water table of any land in the Project Area;

(c)to undertake initiatives to reduce, and to protect against increases to, salinity levels affecting any land in the Project Area;

(d)to undertake other projects to enhance—

(i)water conservation, drainage or management within the Upper South East; and

(ii)the productive capacity of land within the Upper South East;

(e)to institute or supervise environmental testing, monitoring or evaluation programs within the Upper South East;

(f)to undertake initiatives to protect, enhance or re-establish any key environmental feature in connection with the implementation of the Project;

(g)to encourage and assist in the development of environmental management practices and improvement programs in connection with the implementation of the Project;

(h)to undertake the enforcement of this Act, especially in relation to any action that is inconsistent with the effective and efficient implementation of the Project;

(i)to perform other functions assigned to the Minister under this Act.

General powers of the Minister

7. (1) The Minister has the power to do anything necessary, expedient or incidental to—

(a)implementing the Project or performing the functions of the Minister under this Act; or

(b)administering this Act; or

(c)furthering the objects of this Act.

(2) Without limiting the operation of subsection (1), the Minister may—

(a)enter into any form of contract, agreement or arrangement;

(b)acquire, hold, deal with or dispose of real or personal property or any interest in real or personal property;

(c)seek expert or technical advice on any matter from any person on such terms and conditions as the Minister thinks fit;

(d)carry out projects;

(e)act in conjunction with any other person or authority.

(3) In subsection (2)—

"project" includes any form of work, scheme, undertaking or other activity.

Power of delegation

8. (1) The Minister may delegate to a body or person (including a person for the time being holding or acting in a specified office or position) a function or power of the Minister under this Act.

(2) A delegation under this section—

(a)must be made by instrument in writing; and

(b)may be absolute or conditional; and

(c)does not derogate from the power of the Minister to act in any matter; and

(d)is revocable at will.

(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

DIVISION 2—AUTHORISED OFFICERS

Appointment of authorised officers

9. (1) The Minister may appoint persons to be authorised officers for the purposes of this Act.

(2) An appointment under subsection (1) may be made subject to conditions or limitations specified in the instrument of appointment.

(3) An authorised officer appointed under subsection (1) must be issued with an identity card—

(a)containing the person's name and a photograph of the person; and

(b)stating that the person is an authorised officer for the purposes of this Act; and

(c)stating any limitations on the authorised officer's authority.

(4) An authorised officer must, at the request of a person in relation to whom the authorised officer intends to exercise any powers under this Act, produce for the inspection of the person his or her identity card.

Powers of authorised officers

10. (1) An authorised officer may, as may reasonably be required in connection with the administration, operation or enforcement of this Act, at any reasonable time—

(a)enter any land;

(b)inspect any place, including the stratum lying below the surface of any land, and water on or under any land, and inspect any works, plant or equipment;

(c)give directions with respect to the stopping or movement of a vehicle, plant, equipment or other thing;

(d)take measurements, including measurements of the flow of any water on or under any land or relating to any change in any aspect of the environment;

(e)place any markers, pegs or other items or equipment in order to assist in environmental testing or monitoring;

(f)take samples of any substance or thing from any place (including under any land) or vehicle, plant, equipment or other thing;

(g)with the authority of a warrant issued by a magistrate, require any person to produce specified documents or documents of a specified kind, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process;

(h)examine, copy or take extracts from a document or information so produced or require a person to provide a copy of any such document or information;

(i)take photographs, films, audio, video or other recordings;

(j)examine or test any vehicle, plant, equipment, fitting or other thing (including any water), or cause or require it to be so examined or tested, or seize it or require its production for such examination or testing;

(k)seize and retain any vehicle, plant, equipment or other thing that the authorised officer reasonably suspects has been used in, or may constitute evidence of, a contravention of this Act;

(l)require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, a contravention of this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity;

(m)require a person to answer questions;

(n)give directions reasonably required in connection with the exercise of a power conferred by any of the above paragraphs or otherwise in connection with the administration, operation or enforcement of this Act;

(o)exercise other prescribed powers.

(2) Without limiting subsection (1), an authorised officer may—

(a)exercise a power under this section for the purposes of furthering or enhancing the Project Undertaking (including on any land that is not vested in the Minister);

(b)exercise a power under this section for the purpose of determining whether a management agreement is being, or has been, complied with.

(3) An authorised officer must not exercise a power conferred by subsection (1)(a) or (2) in respect of residential premises.

(4) An authorised officer in exercising powers under this section may be accompanied by such assistants as are reasonably required in the circumstances.

(5) An authorised officer may only use force to enter any place on the authority of a warrant issued by a magistrate.

(6) A magistrate must not issue a warrant under subsection (5) unless satisfied that there are reasonable grounds to believe—

(a)that a contravention of this Act has been, is being, or is about to be, committed in or on a place or vehicle; or

(b)that something may be found in or on a place or vehicle that has been used in, or constitutes evidence of, a contravention of this Act; or

(c)that the circumstances require immediate action.

(7) An application for the issue of a warrant under this section—

(a)may be made either personally or by telephone; and

(b)must be made in accordance with any procedures prescribed by the regulations.

Hindering, etc., persons engaged in the administration of this Act

11. (1) A person who—

(a)without reasonable excuse hinders or obstructs an authorised officer or other person engaged in the administration of this Act; or

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

(c)produces a document or record that he or she knows, or ought to know, is false or misleading in a material particular; or

(d)fails without reasonable excuse to comply with a requirement or direction of an authorised officer under this Act; or

(e)uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or

(f)falsely represents, by words or conduct, that he or she is an authorised officer,

is guilty of an offence.

Maximum penalty:$10 000.

(2) Despite subsection (1), a person is not obliged to answer a question if to do so might tend to incriminate the person or make the person liable to a criminal penalty.

(3) A person (other than an authorised officer) who, without the permission of the Minister, removes, destroys or interferes with any marker, peg or other item or equipment placed under section 10(1)(e) is guilty of an offence.

Maximum penalty:$10 000.

PART 3

IMPLEMENTATION OF PROJECT

DIVISION 1—VESTING OF LAND

Vesting of land for drainage purposes

12. (1) Subject to this section, all land within a project works corridor is, by force of this section, vested in the Minister in an estate in fee simple freed and discharged of all relevant interests.

(2) The Minister may, at any time after the commencement of this section, enter into possession of any land within a project works corridor.

(3) Without limiting the operation of subsection (1), any relevant interest is modified to the extent necessary to take into account the vesting of land in the Minister under subsection (1).

(4) Any person who has an interest in land that is affected by the vesting of the land in the Minister under this section does not on the commencement of this section have a right to claim compensation from the Minister or the Crown in respect of the vesting but may have an entitlement to compensation under section 13.

(5) Despite a preceding subsection, the Governor may, by proclamation, transfer any land within a project works corridor vested in the Minister under this section—

(a)to the former owner of the land; or

(b)to the owner of adjoining land (if not a person within the ambit of paragraph (a)); or

(c)to a public authority,

if satisfied that the land will not be required for the purposes of the Project.

(6) The Governor may, by proclamation, make any provision necessary or convenient on account of the transfer of land under subsection (5), including as to—

(a)the terms and conditions on which the transfer is made; and

(b)the reinstatement of any relevant interest that has been affected by the operation of subsections (1) and (3).

(7) Any provision of a proclamation under subsection (5) or (6) will have effect according to its terms and despite any other Act or law.

(8) The Minister—

(a)should, pending the performance of work on land within a project works corridor, give consideration to the extent to which the land can be made available to the former owner of the land, or any other person who has been an occupier of the land, without adversely affecting the implementation of the Project or the furtherance of the objects of this Act, and may, as the Minister thinks fit, enter into an agreement with a former owner or other person so as to allow some or all of the land to be used for a purpose approved by the Minister; and

(b)should, in the implementation of the Project by the performance of work on land within a project works corridor, give consideration to the extent to which any land can be kept for the use of the former owner of the land, or any other person who has been an occupier of the land, without affecting the implementation of the Project or the furtherance of the objects of this Act, and may, as the Minister thinks fit, vary any agreement entered into under paragraph (a), or enter into some other agreement, so as to allow some or all of the land to be used for a purpose approved by the Minister; and

(c)should, at the completion of all work on land within a project works corridor as part of the implementation of the Project, give consideration to the extent to which the land can be returned to the former owner of the land without adversely affecting the furtherance of the objects of this Act, including on the basis that the former owner agree to enter into a management agreement, or to grant an easement, (or both) providing for such matters as the Minister thinks fit.

(9) The Registrar-General—

(a)must, on application by the Minister, issue to the Minister, as the proprietor of an estate in fee simple, a certificate of title, or certificates of title, with respect to all or any of the land within any project works corridor (in accordance with the terms of the application, on the basis of the information set out in Schedule 1, and in accordance with the terms of this section); and

(b)may take any other action in relation to any instrument, or against any land, that may be considered by the Registrar-General to be appropriate on account of the operation of this section, including by noting that any relevant land is affected by the operation of this section.

(10) For the avoidance of doubt—

(a)the Land Acquisition Act 1969 does not apply to or in relation to the vesting of land under this section; and

(b)the Crown Lands Act 1929 does not apply in relation to land vested in the Minister under this section; and