Irrigation Clauses Amendment Act 1997

Irrigation Clauses Amendment Act 1997

An Act to amend the Irrigation Clauses Act 1973 and the Magistrates Court (Small Claims Division) Act 1989

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Irrigation Clauses Amendment Act 1997 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Principal Act

In this Act, the Irrigation Clauses Act 1973 is referred to as the Principal Act.

4.    Section 2 amended (Interpretation)

Section 2(1) of the Principal Act is amended as follows:

(a) by inserting the following definition before the definition of channel :

authorised officer means a person appointed as an authorised officer under section 70 ;

(b) by inserting the following definition after the definition of irrigation :

irrigation infringement notice means an irrigation infringement notice in force under Part XI ;

(c) by inserting the following definition after the definition of prescribed :

small claim means a small claim within the meaning of the Magistrates Court (Small Claims Division) Act 1989 ;

(d) by omitting "Act." from the definition of "water district" and substituting "Act;";

(e) by inserting the following definition after the definition of water district :

withdrawal notice means a notice in force under section 72 withdrawing an irrigation infringement notice.

5.    Section 20 amended (Compensation for injurious affection of land)

Section 20 of the Principal Act is amended by omitting subsection (4) and substituting the following subsection:

(4)  If the claimant and the undertakers do not agree as to the amount of the compensation, the claim for compensation is to be determined –

(a) if it is a small claim, by the small claims division of the Magistrates Court; or

(b) in any other case, as if it were a disputed claim for compensation under the Land Acquisition Act 1993 .

6.   Section 21 amended (Compensation for taking water)

(1)  Section 21 of the Principal Act is amended by omitting from subsection (4) "under the Land Acquisition Act 1993." and substituting "and the amount of compensation is to be determined –

(a) if it is a small claim, by the small claims division of the Magistrates Court; or

(b) in any other case, as if it were a disputed claim for compensation under the Land Acquisition Act 1993 .".

(2)  Section 21 of the Principal Act is further amended by omitting subsection (5A) and substituting the following subsection:

(5A)  If the Land Acquisition Act 1993 applies to the claim, section 78 of that Act applies to the time referred to in subsection (5) of this section in the same way as it applies to a time referred to in that section.

7.   Section 23 amended (Right to a supply for irrigation)

(1)  Section 23 of the Principal Act is amended as follows:

(a) by omitting from subsection (2) "shall, subject to any by-laws made by them," and substituting "must";

(b) by omitting subsection (3) and substituting the following subsections:

(3)  Irrigation rights may be granted –

(a) by any method approved by the Minister; and

(b) with different sureties to the intent that the right to a supply of water may be restricted or abrogated in case of inability of the undertakers to supply sufficient water on such grounds as may be specified in the grant.

(3A)  The grant of an irrigation right is subject to –

(a) any by-laws made by the undertakers under section 47 ; and

(b) provisions for how, when, and in what circumstances water may be taken as may be specified in the grant and also provisions as to occupation by the holder of the whole or any part of the relevant land.

(3B)  An irrigation right may be granted only to –

(a) an owner of land in the water district; or

(b) an occupier of land in the water district; or

(c) a person who has satisfied the undertakers that he or she is, or may be, entitled to acquire land in the water district.

(3C)  Where an irrigation right is granted by reason of any such entitlement, the right is of no effect until the holder acquires the relevant land.

(2)  Section 23 of the Principal Act is further amended as follows:

(a) by omitting subparagraph (i) from subsection (5)(b) and substituting the following subparagraph:

(i) in respect of which an irrigation right is in force; or

(b) by omitting from subsection (6) "that has an irrigation right attached to it" and substituting "in respect of which an irrigation right is in force";

(c) by omitting from subsection (7) "shall forthwith" and substituting "may";

(d) by omitting from subsection (7)(a) "attached to" and substituting "granted in respect of";

(e) by omitting from subsection (10) "shall forthwith" and substituting "may";

(f) by omitting from subsection (10)(a) "attached to" and substituting "granted in respect of";

(g) by omitting from subsection (11) "undertaker" and substituting "undertakers";

(h) by omitting from subsection (12)(a) "shall" and substituting "may".

8.    Section 23A inserted

After section 23 of the Principal Act , the following section is inserted in Part III:

23A.   Transfer of irrigation rights

(1)  The holder of an irrigation right may transfer it with the approval of the undertakers and on compliance with such conditions as may be approved by the Minister.

(2)  The conditions may –

(a) require payment of a fee; and

(b) relate to the availability of water, the infrastructure required for the supply of water, the impact of the proposed transfer on the environment or the maximum amount of water which may be taken.

(3)  For the purposes of subsection (2)(b) , the maximum amount of water may be determined by reference to the area of the relevant land.

9.   Section 25 amended (Distribution of water for irrigation)

Section 25 of the Principal Act is amended by omitting "account the differing losses that the landowners are likely to suffer from an insufficient supply." and substituting "account –

(a) the differing losses that the landowners are likely to suffer from an insufficient supply; and

(b) the surety attaching to the irrigation right.".

10.    Section 29 amended (How supply cut off)

Section 29(1) of the Principal Act is amended by omitting paragraph (b) and substituting the following :

(b) as mentioned in paragraph (b) of that section, the supply of water to land may be cut off by stopping the flow of water into the land or into the channel by which water is supplied to the land –

and in either case the supply may also be cut off by an order under the undertakers' seal served personally on the occupier of the land or by leaving it with a person apparently over the age of 16 years at the occupier's place of residence forbidding him or her to draw water from the undertakers' channels.

11.   Section 47 amended (Subjects of by-laws)

Section 47(1) of the Principal Act is amended as follows:

(a) by omitting "Act –" and substituting "Act and may, without limitation of the powers conferred by this subsection –";

(b) by omitting from paragraph (a) "providing" and substituting "provide";

(c) by omitting from paragraph (b) "providing" and substituting "provide";

(d) by omitting from paragraph (c) "regulating" and substituting "regulate";

(e) by omitting from paragraph (d) "regulating" and "prohibiting" and substituting "regulate" and "prohibit", respectively;

(f) by omitting from paragraph (e) "providing" and substituting "provide";

(g) by omitting from paragraph (f) "preventing" and substituting "prevent";

(h) by omitting from paragraph (g) "preventing" and substituting "prevent".

12.   Section 48 amended (Payment under system of irrigation rights)

(1)  Section 48 of the Principal Act is amended by omitting from subsection (2) "water." and substituting "water which rate –

(a) is to have effect throughout an irrigation district or in such part of the district as may be provided by the by-laws; and

(b) may vary by reference to the time when the water is taken or to the surety attaching to the irrigation right concerned.".

(2)  Section 48 of the Principal Act is further amended by omitting "50" from subsection (5) and substituting "51".

13.   Section 69 amended (Offences)

Section 69 of the Principal Act is amended as follows:

(a) by omitting "1.5 penalty units" from the penalty in subsection (1) and substituting "5 penalty units";

(b) by omitting "0.25" from the penalty in subsection (2) and substituting "one";

(c) by omitting "0.3" from the penalty in subsection (3) and substituting "5";

(d) by omitting paragraph (b) of subsection (5);

(e) by omitting "0.5" and "0.05" from the penalty in subsection (5) and substituting "5" and "one", respectively;

(f) by inserting after subsection (6) the following subsections:

(6A)  A person must not, without the permission of the undertakers, take any water from any reservoir, watercourse or channel belonging to the undertaking, or any channel leading to any such reservoir, watercourse or channel or from any cistern or other like place containing water belonging to the undertaking other than water which is provided for the gratuitous use of the public.

(6B)  A person who takes water in contravention of subsection (6A) is guilty of an offence and is liable on summary conviction –

(a) in the case of a first offence, to a penalty of one penalty unit; or

(b) in the case of a second offence in the same irrigation season, to a penalty not exceeding 3 penalty units; or

(c) in the case of a third or subsequent offence in the same irrigation season, to a penalty not exceeding 5 penalty units.

(6C)  On a conviction for an offence under subsection (6A) , the court may order that the supply of water by the undertakers to the person convicted be discontinued for a period of 3 days in the case of a first offence, a period of one week in the case of a second offence or for a period of 2 weeks in the case of a third or subsequent offence.

(g) by omitting "1.5" from subsection (7)(a) and substituting "5";

(h) by omitting "3" from subsection (7)(b) and substituting "10";

(i) by omitting "0.3 penalty unit" from the penalty in subsection (8) and substituting "2 penalty units";

(j) by omitting "0.3 penalty unit" and "0.05" from the penalty in subsection (9) and substituting "2 penalty units" and "one", respectively.

14.   Section 70 repealed and Part XI inserted

Section 70 of the Principal Act is repealed and the following Part is substituted:

PART XI - Irrigation infringement notices

70.   Appointment of authorised officers

The undertakers may appoint a person to be an authorised officer for the purposes of this Part.

71.   Service and acceptance of irrigation infringement notices

(1)  Where an authorised officer is satisfied that a person has committed an offence against section 69(6A) , he or she may serve on that person a notice in respect of that offence by delivering it to that person or by sending it to that person by post.

(2)  An irrigation infringement notice is to clearly indicate –

(a) the offence or offences in respect of which it is served; and

(b) that payment of the prescribed penalty is to be made to a clerk of petty sessions; and

(c) that the person may disregard the notice, but that if he or she does so, he or she may be prosecuted before a court for the offence to which it relates.

(3)  For the purposes of subsection (2) , the prescribed penalty is –

(a) in the case of a first offence, 0.5 penalty unit; or

(b) in the case of a second offence in the same irrigation season, 1.5 penalty units; or

(c) in the case of a third or subsequent offence in the same irrigation season, 2.5 penalty units.

(4)  Unless it has been withdrawn, an irrigation infringement notice may, subject to subsection (5) , be accepted by the person on whom it was served either –

(a) by the payment, within 21 days of the service of the notice, of the prescribed penalty to a clerk of petty sessions; or

(b) by lodging with the clerk, within 21 days of the service of the notice, a written undertaking by that person to pay the penalty by such instalments or within such time as the clerk may direct.

(5)  Where an irrigation infringement notice has not been accepted as mentioned in subsection (4) by the person, a clerk of petty sessions may, at the expiration of the relevant period specified in that subsection and by written notification to that person, allow that person an additional period of 14 days commencing on the expiration of that period in which to accept the notice.

(6)  Notwithstanding subsections (4) and (5) , a clerk of petty sessions may, at any time before a complaint and summons is issued for the relevant offence, accept payment of the prescribed penalty or a written undertaking to pay the penalty either wholly or by instalments within such time as the clerk may direct.

(7)  Notification of an extension of time by a clerk of petty sessions is to be served on a person by sending it by post addressed to the person at the place shown as his or her address in the relevant irrigation infringement notice.

(8)  Where an irrigation infringement notice has been served on a person, proceedings may not be brought against that person for the offence to which the notice relates if the notice has been accepted and has not been withdrawn.

(9)  Whether or not an irrigation infringement notice is accepted, proceedings may not be brought within the period of –

(a) 28 days following the service of the notice, if the person on whom it was served has not been allowed an additional period under subsection (5) ; or

(b) 42 days following the service of the notice, if the person has been allowed such an additional period –

unless the notice has been withdrawn.

(10)  Where an irrigation infringement notice in respect of an offence has been accepted by a person and has not been withdrawn –

(a) acceptance is, for the purpose of proceedings for any other offence, taken as a conviction for the offence to which the notice relates unless the court before which those proceedings are taken is satisfied that it is unjust that it should be so treated; and

(b) acceptance is not taken as an admission of liability for the purpose of, nor in any way to affect or prejudice, any civil claim, action or proceeding.

72.   Withdrawal of irrigation infringement notices

(1)  An irrigation infringement notice that has been served on a person may, whether or not it has been accepted, be withdrawn as provided in subsection (2) at any time within the period of –

(a) 28 days following the service of the notice, if the person has not been allowed an additional period under section 71(5) ; or

(b) 42 days following the service of the notice, if the person has been allowed such an additional period.

(2)  For the purposes of subsection (1), an irrigation infringement notice served on a person may be withdrawn by the service on that person of a notice in writing signed by an authorised officer stating that the irrigation infringement notice has been withdrawn.

(3)  Where a notice has been withdrawn under this section and an amount has been paid to a clerk of petty sessions by way of penalty under that notice, the clerk must repay the amount so paid to the person on whom the notice was served.

(4)  Where an irrigation infringement notice has been served and has been withdrawn, evidence of the service, acceptance or withdrawal of the notice is not admissible in any proceedings for the offence to which the notice relates.

(5)  References in this Act to the withdrawal of an irrigation infringement notice are taken to be references to the withdrawal of that notice under this section.

73.   Discontinuance of water supply

Where an irrigation infringement notice has been served on a person, the undertakers may, whether or not the notice is accepted, discontinue the supply of water to that person as provided by section 29  –

(a) in the case of a first notice, for a period of 3 days; or

(b) in the case of a second such notice in an irrigation season, for a period of one week; or

(c) in the case of a third or subsequent such notice in an irrigation season, for a period of 2 weeks.

74.   Effect of undertaking to pay a prescribed penalty

(1)  Where an undertaking as mentioned in section 71(4)(b) is lodged with a clerk of petty sessions, the clerk must give directions to the person by whom the undertaking is given requiring the person to pay the penalty to which the undertaking relates in such instalments or within such time as may be specified in the directions.

(2)  Directions may not be given under subsection (1) if they would have the effect of allowing any part of the penalty to which they relate to be paid after the expiration of 63 days from the date on which the relevant irrigation infringement notice was served.

(3)  Before giving directions under subsection (1) , the clerk must –

(a) consider any representations made to the clerk by or on behalf of the person to whom the notice relates, whether at the time the undertaking is lodged or otherwise, with respect to the person's financial circumstances; and

(b) give such directions as, having regard to those representations and all the circumstances of the case, the clerk considers just and reasonable.

(4)  Where a person fails to comply with any directions given under subsection (1) , proceedings may be brought against the person in respect of so much of the penalty to which the directions relate as remains unpaid as if the penalty were a penalty imposed on the person on his or her summary conviction for the offence to which the relevant irrigation infringement notice relates.

15.   Magistrates Court (Small Claims Division) Act 1989 amended

Section 3(1) of the Magistrates Court (Small Claims Division) Act 1989 is amended as follows:

(a) by omitting "conversion," from paragraph (e) of the definition of "small claim" and substituting "conversion;";

(b) by inserting after paragraph (e) of the definition of "small claim" the following paragraph:

(f) a claim for compensation under section 20 or 21 of the Irrigation Clauses Act 1973  –

[Second reading presentation speech made in:

House of Assembly on 15 OCTOBER 1997

Legislative Council on 11 NOVEMBER 1997]