Schedule 9 Savings, transitional and other provisions
(Section 403)
1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this Act
(2) Such a provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.(3) To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.
Part 2 Provisions consequent on enactment of this Act
In this Part:amended legislation means any Act amended by Schedule 8, as so amended.
appointed day means:
(a) in relation to a provision of the old legislation that has been repealed or amended by this Act, the day on which the repeal or amendment commences, or(b) in relation to a new provision inserted into the amended legislation by this Act, the day on which the new provision commences.old legislation means:
(a) any Act repealed by Schedule 7, as in force immediately before its repeal, and(b) any Act amended by Schedule 8, as in force immediately before its amendment.
3 Existing water management works
(1) Nothing in this Act requires a person to hold an approval:(a) to complete the construction of a water management work whose construction was lawfully commenced before the appointed day, or(b) to use a water management work whose construction was lawfully commenced before the appointed day, whether or not its construction was completed before the appointed day.(2) Subclause (1) does not prevent a direction from being given and enforced under Chapter 7 in relation to a water management work referred to in that subclause.(3) This clause does not apply to a water management work that, immediately before the appointed day, was the subject of an entitlement referred to in clause 9, or a permit referred to in clause 15.(4) This clause ceases to have effect on a day to be appointed by proclamation.
Any delegation that was in force immediately before the appointed day under a provision of the old legislation for which there is a corresponding provision in the amended legislation is taken to be a delegation in force under the corresponding provision of the amended legislation.
5 Construction of references to Water Administration Ministerial Corporation
Subject to this Schedule and the regulations, in any Act or instrument, a reference to the Water Administration Ministerial Corporation (however described), in relation to a function that under the old legislation was exercisable by the Ministerial Corporation but under this Act is exercisable by the Minister, extends to the Minister.
6 Construction of other references
Subject to this Schedule and the regulations, in any Act or instrument:(a) a reference to a provision of the old legislation for which there is a corresponding provision in the amended legislation extends to the corresponding provision of the amended legislation, and(b) a reference to any act, matter or thing referred to in a provision of the old legislation for which there is a corresponding provision in the amended legislation extends to the corresponding act, matter or thing referred to in the corresponding provision of the amended legislation.
Subject to this Schedule and the regulations:(a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in the amended legislation may be continued and completed under the old legislation as if this Act had not been enacted, and(b) subject to paragraph (a), anything done under a provision of the old legislation for which there is a corresponding provision in the amended legislation (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of the amended legislation.
Division 2 Water Act 1912
In this Division, the 1912 Act means the Water Act 1912, as in force immediately before the appointed day.
(1) An entitlement that, immediately before the appointed day, was in force under the 1912 Act:(a) to the extent to which it entitles any person or body to take a specified quantity of water, is taken to have expired and been replaced by an access licence held by that person or body for the quantity of water so specified (subject to such of the conditions of the entitlement as are applicable to an access licence), and(b) to the extent to which it entitles any person or body to use a specified water management work, is taken to have expired and been replaced by a water management work approval held by that person or body in respect of that work (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and(c) is taken to have expired and been replaced by a water use approval entitling that person or body to use water on the land to which the entitlement relates (subject to such of the conditions of the entitlement as are applicable to an approval of that kind):(i) except as provided by subparagraph (ii), for any purpose, or(ii) if the conditions of the entitlement restrict the use of water to specified purposes, for the purposes so specified.(2) Subclause (1) (a) does not apply to an entitlement comprising a licence under Part 5 of the 1912 Act (other than a licence for water from the Great Artesian Basin) that is subject to a condition restricting its use to stock or domestic, or stock and domestic, purposes.(3) Subclause (1) (a) does not apply to an entitlement that, immediately before the appointed day, was held by a local water utility.(4) The reference in subclause (1) (a) to the conditions of an entitlement include a reference to any water allocation determined in respect of that entitlement under a volumetric water allocations scheme in force under Division 4B of Part 2 of the 1912 Act.(5) In the case of a licence under section 13A or an authority under section 20CA of the 1912 Act, the holder of the corresponding water management work approval referred to in subclause (1) (b) may continue to exercise the rights conferred by section 13A (7) or 20CA (8) of that Act, as the case requires, while that approval (including the first renewal of that approval) remains in force.Note. After that approval expires, the continued exercise of those rights will need to be supported by an easement, whether negotiated by agreement between the respective landholders or imposed by means of an order under section 88K of the Conveyancing Act 1919.(6) An access licence arising under subclause (1) (a), a water management work approval arising under subclause (1) (b) and a water use approval arising under subclause (1) (c) each have effect for:(a) except as provided by paragraph (b):(i) 2 years from the appointed day, or(ii) for the balance of the period for which the entitlement from which it arises would (but for this Act) have remained in force,whichever is the longer, or(b) in the case of an access licence or approval arising from an entitlement for an indefinite period, 10 years.(7) In this clause, entitlement means:(a) a licence, permit, authority, irrigation corporation licence or group licence referred to in Part 2 of the 1912 Act, or(b) a right to take and use water referred to in section 38B of the 1912 Act, or(c) a licence referred to in Part 5 of the 1912 Act, or(d) an approval referred to in Part 8 of the 1912 Act, or(e) a water management licence under Part 9 of the 1912 Act.
10 Local water utility licences
(1) On the appointed day, the Minister must grant an access licence to any local water utility that, immediately before the appointed day, held an entitlement in relation to a water supply work.(2) The share component of such an access licence is to be expressed as a specified volume per year.(3) Subject to subclauses (4) and (5), the specified volume in relation to an access licence may be any of the following:(a) the quantity of water specified in the relevant entitlements held by the local water utility immediately before the appointed day,(b) a quantity of water calculated by reference to the nature and extent of the area to which the licence relates:(i) having regard to population levels, geographical location and current water usages, and(ii) assuming that reasonable demand management strategies are implemented in that area,(c) a quantity of water calculated on the basis of the current yield of the water management works under the control or management of the local water utility by which the licence is taken to be held.(4) The yield referred to in subclause (3) (c) is to be determined with regard to historical stream flow data, and with regard to drought management strategies and demand management practices established by the local water utility concerned.(5) In the case of an access licence whose specified volume is greater than the quantity of water currently taken and used under the entitlement referred to in subclause (1), the Minister may at any time impose a condition on the access licence to the effect that water in excess of that quantity is not to be taken or used except with the consent of the Minister.(6) Such a condition is not to be imposed unless the Minister is satisfied that the imposition of such a condition is necessary in the public interest.
Any rates and charges fixed under Part 3 or 7 of the 1912 Act are taken to have been fixed under Part 3 of Chapter 5 of this Act.
Subject to the regulations, any land that, immediately before the appointed day, was designated as a floodplain under Part 8 of the 1912 Act is taken to be a floodplain for the purposes of this Act.
13 Floodplain management plans
A floodplain management plan adopted under section 166A of the 1912 Act is taken to be a Minister’s plan made under this Act in relation to floodplain management.
Division 3 Rivers and Foreshores Improvement Act 1948
In this Division, the 1948 Act means the Rivers and Foreshores Improvement Act 1948, as in force immediately before the appointed day.
(1) A permit that, immediately before the appointed day, was in force under Part 3A of the 1948 Act is taken to have expired and been replaced by a controlled activity approval entitling its holder to carry out the activity specified in the permit on the land to which the permit relates, and is taken to be subject to the same conditions as it was subject under that Act.(2) A controlled activity approval arising under subclause (1) has effect for the balance of the term for which it was granted.
Division 4 Water Administration Act 1986
In this Division, the 1986 Act means the Water Administration Act 1986, as in force immediately before the appointed day.
17 Continuation of Ministerial Corporation
The Water Administration Ministerial Corporation constituted by Part 2 of Chapter 8 of this Act is a continuation of, and the same legal entity as, the Water Administration Ministerial Corporation constituted by the 1986 Act.
18 Continued operation of section 19
Section 19 of the 1986 Act continues to apply to acts, matters and things that arose before the appointed day.
Division 5 Water Supply Authorities Act 1987
In this Division, the 1987 Act means the Water Supply Authorities Act 1987, as in force immediately before the appointed day.
20 Continuation of water supply authorities
(1) Each water supply authority constituted by Part 2 of Chapter 6 of this Act is a continuation of, and the same legal entity as, the water supply authority of the same name constituted by the 1987 Act.(2) Subject to the regulations, the area of operations of a water supply authority constituted by Part 2 of Chapter 6 of this Act is the same as the area of operations for the corresponding water supply authority constituted by the 1987 Act.(3) Subject to this Act, the members of a water supply authority constituted by the 1987 Act continue to hold office as members of the corresponding water supply authority constituted by Part 2 of Chapter 6 of this Act for the residue of their respective terms of office under the 1987 Act.
A special area for a water supply authority constituted by the 1987 Act is taken to be a special area for the corresponding water supply authority constituted by Part 2 of Chapter 6 of this Act.
A certificate of compliance granted by a water supply authority under the 1987 Act is taken to be a certificate of compliance issued by the corresponding water supply authority under Part 2 of Chapter 6 of this Act.
(1) An order declaring a development area, charging year, drainage area, floodplain, river management area or special industry under section 28 of the 1987 Act is taken to be the corresponding order under Part 2 of Chapter 6 of this Act.(2) Service charges levied by a water supply authority under the 1987 Act are taken to be service charges levied by the corresponding water supply authority under Part 2 of Chapter 6 of this Act.(3) Determinations made by a water supply authority under section 34 of the 1987 Act are taken to be determinations made by the corresponding water supply authority under Part 2 of Chapter 6 of this Act.(4) Assessments made by a water supply authority under section 35 or 36 of the 1987 Act are taken to be assessments made by the corresponding water supply authority under Part 2 of Chapter 6 of this Act.(5) A certificate issued by a water supply authority under section 41 of the 1987 Act is taken to be a certificate issued by the corresponding water supply authority under Part 2 of Chapter 6 of this Act.
A penalty notice issued by an authorised employee of a water supply authority under section 51 of the 1987 Act is taken to have been issued by an authorised employee or agent of the corresponding water supply authority under Part 2 of Chapter 6 of this Act, and may be enforced accordingly.
Any regulations in force under the 1987 Act immediately before the appointed day are taken to be regulations under this Act, and may be amended and repealed accordingly.
Division 6 Fish River Water Supply Administration Act 1945
In this Division, the 1945 Act means the Fish River Water Supply Administration Act 1945, as in force immediately before the appointed day.
Any amount payable by a council under Part 4 of the 1945 Act is taken to be payable under Part 1 of Chapter 5 of this Act.
Any regulations in force under the 1945 Act immediately before the appointed day are taken to be regulations under this Act, and may be amended and repealed accordingly.
Division 7 Hunter Valley Flood Mitigation Act 1956
In this Division, the 1956 Act means the Hunter Valley Flood Mitigation Act 1956, as in force immediately before the appointed day.
Any permission in force under section 12 of the 1956 Act immediately before the appointed day, and any approval in force under section 16 of the 1956 Act immediately before the appointed day, are taken to be consents in force under Part 2 of Chapter 5 of this Act.
31 Control and management of works
Any work that, immediately before the appointed day, was under the control and management of the Ministerial Corporation under the 1956 Act is taken to be under the control and management of the Ministerial Corporation under Part 2 of Chapter 5 of this Act.
Any amount for which the Hunter Catchment Management Trust or a local council was liable under the 1956 Act immediately before the appointed day is taken to be an amount for which the Trust or council is liable under Part 2 of Chapter 5 of this Act.
Any regulations in force under the 1956 Act immediately before the appointed day are taken to be regulations under this Act, and may be amended and repealed accordingly.
Division 8 Irrigation Corporations Act 1994
In this Division, the 1994 Act means the Irrigation Corporations Act 1994, as in force immediately before the appointed day.
Any operating licence granted to an irrigation corporation under the 1994 Act is taken to be an operating licence under Part 1 of Chapter 4 of this Act.
Section 75 of the 1994 Act continues to apply to matters arising under that Act before the appointed day as if this Act had not been enacted.
Any regulations in force under the 1994 Act immediately before the appointed day are taken to be regulations under this Act, and may be amended and repealed accordingly.
Division 9 Private Irrigation Districts Act 1973
In this Division, the 1973 Act means the Private Irrigation Districts Act 1973, as in force immediately before the appointed day.
(1) A provisional private domestic and stock water supply district constituted under the 1973 Act is taken to be a private domestic and stock water supply district constituted under Part 2 of Chapter 4 of this Act.(2) A private domestic and stock water supply district constituted under the 1973 Act is taken to be a private domestic and stock water supply district constituted under Part 2 of Chapter 4 of this Act.(3) A provisional private domestic and stock water supply and irrigation district constituted under the 1973 Act is taken to be a private domestic and stock water supply and irrigation district constituted under Part 2 of Chapter 4 of this Act.(4) A private domestic and stock water supply and irrigation district constituted under the 1973 Act is taken to be a private domestic and stock water supply and irrigation district constituted under Part 2 of Chapter 4 of this Act.
(1) The Board of management of a provisional private district or private district under the 1973 Act is taken to be a private irrigation board under Part 2 of Chapter 4 of this Act.(2) Subject to this Act, the members of a Board of management of a provisional private district or private district constituted under the 1973 Act continue to hold office as members of the corresponding private irrigation board under this Act for the residue of their respective terms of office under the 1973 Act.
41 Control and management of works
Any work that, immediately before the appointed day, was under the control and management of the Board of management of a provisional private district or private district under the 1973 Act is taken to be under the control and management of the corresponding private irrigation board under Part 2 of Chapter 4 of this Act.
(1) Any rates and charges fixed by the Board of management of a provisional private district or private district under the 1973 Act before the appointed day are taken to have been fixed by the corresponding private irrigation board under Part 2 of Chapter 4 of this Act.(2) A certificate issued by the Board of management of a provisional private district or private district under the 1973 Act before the appointed day is taken to be a certificate issued by the corresponding private irrigation board under Part 2 of Chapter 4 of this Act.
Any determination made by the Board of management of a provisional private district or private district under the 1973 Act before the appointed day is taken to be a determination made by the corresponding private irrigation board under Part 2 of Chapter 4 of this Act.
Any by-laws made the Board of management of a provisional private district or private district under the 1973 Act before the appointed day are taken to be by-laws made by the corresponding private irrigation board under Part 2 of Chapter 4 of this Act, and may be amended and repealed accordingly.
Any regulations in force under the 1973 Act immediately before the appointed day are taken to be regulations under this Act, and may be amended and repealed accordingly.
In this Division, the 1939 Act means the Drainage Act 1939, as in force immediately before the appointed day.
Any rate levied under Division 2 of Part 5 of the 1939 Act before the appointed day is taken to be a rate levied under Division 3 of Part 3 of Chapter 4 of this Act.
Any regulations in force under the 1939 Act immediately before the appointed day are taken to be regulations under this Act, and may be amended and repealed accordingly.
Division 11 Glennies Creek Dam Act 1979
In this Division, the 1979 Act means the Glennies Creek Dam Act 1979, as in force immediately before the appointed day.
50 Supply of water to Macquarie Generation
(1) The obligation to supply Macquarie Generation with water that the Ministerial Corporation had immediately before the appointed day under section 6 of the 1979 Act is taken to continue as if that Act had not been repealed.Note. Under section 6 of the 1979 Act, the obligation is expressed to be to supply Pacific Power. By virtue of an order under clause 3 of Schedule 5 to the Energy Services Corporations Act 1995, the right to that supply has been transferred from Pacific Power to Macquarie Generation.(2) This clause ceases to have effect:(a) on the expiry of 2 years after the appointed day, or(b) on the day on which a proclamation adding Macquarie Generation’s name to Schedule 2 takes effect,whichever occurs first.Editorial note. This clause ceased to have effect on 1.1.2001 (ie the day Macquarie Generation was added to Schedule 2). See GG No 168 of 22.12.2000, p 13474.
Division 12 Transfer of assets, rights and liabilities
In this Part:assets means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents.
liabilities means any liabilities, debts or obligations (whether present or future and whether vested or contingent).
rights means any rights, powers, privileges or immunities (whether present or future and whether vested or contingent).
transfer order means an order made by the Minister under clause 52.
transferee means the person to whom any staff, assets, rights or liabilities are transferred by a transfer order.
transferor means the Ministerial Corporation.
(1) The Minister may, by order in writing, transfer to any public authority (including any water supply authority) any assets, rights or liabilities (but not any staff) of the Minister or the Ministerial Corporation with respect to the Fish River water supply scheme referred to in Part 1 of Chapter 5.(2) The Minister may, by order in writing, transfer to any public authority any staff, assets, rights or liabilities of the Minister or the Ministerial Corporation with respect to the Hunter Valley flood mitigation works referred to in Part 2 of Chapter 5.(3) The Minister may, by order in writing, transfer to any private irrigation board any assets, rights or liabilities (but not any staff) of the Minister or the Ministerial Corporation with respect to the Lowbidgee flood control and irrigation works referred to in Part 3 of Chapter 5.(4) The Minister may, by order in writing, transfer to any public authority, irrigation corporation or private irrigation board any assets, rights or liabilities (but not any staff) of the Benerembah Irrigation District Environment Protection Trust referred to in Part 1 of Schedule 3.(5) The Minister may, by order in writing, transfer to any public authority any assets, rights or liabilities (but not any staff) of the Upper Parramatta River Catchment Trust referred to in Part 1 of Schedule 3.
Any person who, by virtue of a transfer order, becomes a member of staff of a transferee is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the person had the person not become a member of staff of the transferee but remained a member of staff of the transferor.
54 Transfer of assets, rights and liabilities
(1) When any assets, rights or liabilities are transferred by a transfer order, the following provisions have effect:(a) the assets of the transferor are, by operation of this clause, vested in the transferee,(b) the rights and liabilities of the transferor become, by operation of this clause, the rights and liabilities of the transferee,(c) all proceedings relating to the assets, rights and liabilities of the transferor or a predecessor of the transferor and pending immediately before the transfer are taken to be proceedings pending against the transferee,(d) any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities of the transferor before the transfer by, to or in respect of the transferor or a predecessor of the transferor is (to the extent to which it has any effect) taken to have been done or omitted by, to or in respect of the transferee,(e) a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent to which it relates to the assets, rights or liabilities) taken to include a reference to the transferee.(2) The operation of this clause is not to be regarded:(a) as a breach of confidence or otherwise as a civil wrong, or(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or(c) as giving rise to any remedy by a party to an instrument, or causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability, or(d) as an event of default under any contract or other instrument.(3) No attornment to the transferee by a lessee from the transferor is required.(4) A transfer is subject to the terms and conditions of the transfer order by which it is effected.(5) No compensation is payable to any person in connection with a transfer under this Division except to the extent (if any) to which the transfer order giving rise to the transfer so provides.(6) Subclause (5) does not affect the rights of any member of staff referred to in clause 53.
A transfer takes effect on the date specified in the transfer order by which it is effected.
The Minister may, by order in writing, specify the consideration on which a transfer is made and the value or values at which the assets, rights or liabilities are transferred.
Duty under the Duties Act 1997 is not chargeable for or in respect of anything certified by the Minister as having been done in consequence of the operation of this clause (for example, the transfer or conveyance of an interest in land).
(1) The Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities under this Division.(2) A notice under this clause is conclusive evidence of the transfer to which it relates.