Water Act 1989 s 266; review of Melbourne Water waterways charge; basis for tariff; Tribunal's jurisdiction to consider underlying validity of tariff; whether applicant liable for tariff; whether waterways district properly constituted; whether tariff properly set in accordance with a regulatory order under Water Industry Act 1994; principles of statutory interpretation regarding reference to repealed legislation.

Joseph v Melbourne Water & Anor (includes Summary) (Red Dot) [2010] VCAT 1414

1. The application for review is dismissed. The decision of Melbourne Water is affirmed, and the fee imposed by way of a waterways charge on Ms Joseph's land is confirmed.

1. Alison Joseph owns rural land in Bullengarook, west of Gisborne[1]. The land is not connected to any utility services, such as water supply or sewerage. Following an extension of Melbourne Water's operating area for its drainage and waterways functions, Ms Joseph is nonetheless now a recipient of an annual Melbourne Water waterways charge, levied as a tariff under s 259 of the Water Act 1989.
2. Through a services account dated 7 August 2008, Western Water levied a waterways charge of $38.88 on Ms Joseph[2] on behalf of Melbourne Water for the for the 2008-09 year. This was the first time that Ms Joseph or her land had been levied with the charge. Ms Joseph seeks to review the waterways charge on several grounds, including a challenge to its validity and/or her liability to pay it, and her view that she receives no services that justify the charge.
3. Ms Joseph has been subsequently levied with a waterways charge of $40.68 for 2009-10, through a services account issued on 13 August 2009. Although her application for review technically relates only to the 2008-09 charge, the principles discussed in these reasons are also generally applicable to the 2009-10 charge.

1. Under s 266(1) and (4) of the Water Act 1989:

(1) A person who is aggrieved by the setting of a tariff, or the imposing of a fee under a tariff, by an Authority may, within 1 month after receipt of the demand for payment, object in writing to the Authority on any of the following grounds -

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

(c) that the tariff was not set in accordance with an Order under section 4D(1)(a) of the Water Industry Act 1994 or in accordance with the Essential Services Commission Act 2001;

(d) that the Authority did not give the required notice that the property is a serviced property;

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

(4) A person who has objected may apply to the Tribunal for review of the Authority's decision on the objection on any of the grounds specified in subsection (1).

1. Ms Joseph's objection to Melbourne Water was rejected, and she now seeks review under the grounds in s 266(1)(b), (c), (d) and (e). These therefore provide the four grounds for my consideration.
2. As a matter of record, I note that:
   • Ms Joseph had initially made an application to the Civil Claims List of the Tribunal, under the Fair Trading Act 1999, to challenge the charge. That application was rejected, and it was recommended that she bring her application in the Planning & Environment List of the Tribunal, under the Water Act 1989; and
   • Ms Joseph had purported to bring her application also under s 30 of the Water Industry Act 1994, and s 271 of the Water Act 1989. However, s 30 of the Water Industry Act 1994 is limited to a review of payments required under ss 27, 28 or 29 of that Act, and s 271 of the Water Act 1989 is limited to a review of payments required under ss 268, 269 or 270 of that Act. Following discussion at the commencement of the hearing, Ms Joseph conceded that her application for review did not relate to any 'payment' of a type covered by these provisions, nor does Melbourne Water contend that the charge was a payment to which these provisions apply. Plainly, this is correct, by reference to each of these provisions, and I have not therefore considered those issues further.
3. Melbourne Water relies upon s 259 of the Water Act 1989 as the legislative foundation for its waterways charge, and s 266(1) is therefore the correct review process.

Should the ground of review under s 266(1)(b) be narrowly construed?

1. At the heart of Ms Joseph's grounds is her view that the waterways charge is invalid. A question arises as to whether the available ground of review under s 266(1)(b) of the Water Act 1989 allows for such an argument, or whether it should be more narrowly construed.
2. The ground under s 266(1)(b) is "that the person is not liable for the tariff". Melbourne Water contended that this ground had a limited ambit. Essentially, it contended that this ground was intended to cover matters such as whether the correct person had been identified to pay the charge - e.g. whether that person was in fact the owner or occupier of relevant land. Melbourne Water therefore questioned my jurisdiction to look behind the waterways charge or to make any broad declaration concerning its validity. Ms Joseph however focussed on the issue of whether she was liable for the tariff at all, arguing that this clearly raised a substantive issue of whether the charge was valid and capable of being applied to her.
3. Both interpretations are perhaps open, and neither party provided any further basis for its contended position. To the extent there is a potential ambiguity, and given the proceeding relates to the imposition of a charge, I consider it appropriate to adopt a broader interpretation of this ground of review that favours the person potentially liable for the charge.
4. In adopting this view, I also note the following:
   • the Tribunal has a discretionary power under s 124 of the Victorian Civil and Administrative Tribunal Act 1998 to make a declaration in a proceeding. Whilst the Tribunal should be wary of making any broad declaration as to the invalidity of a law or charge of wide application, based on the limited submissions of a party in an individual tribunal case, it would nonetheless be open to me to make such declarations in this proceeding as are necessary to establish the rights and obligations of Melbourne Water vis-à-vis Ms Joseph in respect of the waterways charge and the underlying dispute before me.
   • Ms Joseph is a self-represented litigant, and has perhaps overlooked the opportunity to seek a formal declaration under s 305A of the Water Act 1989 through which her concerns with the validity of the charge might be more squarely considered. Without requiring any formal amendment to her application, and to avoid further proceedings, I have endeavoured to ascertain the true legal character of her claim and deal with it insofar as it falls within the Tribunal's broader jurisdiction. This is consistent with the Tribunal's governing legislation[3] and 'fair hearing' obligation.
   • under s 300 of the Water Act 1989, proof of certain matters in a proceeding (including the location of an Authority's district, or the setting of a tariff) is not required unless or until evidence is given to the contrary. This places the clear evidentiary burden on the person seeking to establish that the charge is invalid on a basis otherwise covered by s 300, and thus reduces the potential for abuse in the review process.
   • given the application of the waterways charge to Melbourne Water's extended area is relatively new, there is perhaps some public interest in its first 'review', albeit that the Tribunal does not derive jurisdiction from this factor alone.
5. Because of complex issues raised at the hearing that resulted from this interpretation of the grounds of review, Melbourne Water was requested to file a supplementary submission addressing certain limited issues[4] with a right of reply granted to Ms Joseph.

Grounds 1 & 4: Is Ms Joseph liable for the waterways charge? Is the fee imposed a correct application of the tariff as set?

1. These two grounds deal with the available grounds under s 266(1)(b) and (e) of the Water Act 1989 - i.e. whether Ms Joseph is liable to pay the charge, and whether the fee imposed on her is a correction application of the tariff as set. There is some overlap in these two grounds (at least in the way they were argued by Ms Joseph across multiple issues[5]), and it is thus convenient to deal with them together.

1. The basis for the waterways charge is s 259 of the Water Act 1989. The relevant parts of that section provide:

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

1. Some of the elements arising from s 259 are uncontroversial:
   • Melbourne Water is an 'Authority' under the Water Act 1989, following the definitions of 'Authority' and 'water corporation' in s 3, and the operation of Division 1 of Part 6 (particularly s 85) and Schedule 1.
   • Ms Joseph is the owner of the land upon which the waterways charge has been levied.
   • Ms Joseph's land is a 'serviced property' for the purposes of any Melbourne Water function under Part 10 of the Water Act 1989, by reference to s 144A. Under this definition, it is not necessary that the land be connected to a water supply or sewerage service. The land is regarded as a serviced property if it is rateable land under the Local Government Act 1989.
2. This still leaves a number of disputed elements that affect whether Ms Joseph is liable to pay the charge or whether it has been correctly applied to her. I will consider these in turn.

1. Under s 259(1) of the Water Act 1989, a tariff can only be imposed on land within an Authority's 'district'. Ms Joseph contends that her land is not within any properly constituted district of Melbourne Water.
2. This argument fails at the first hurdle. Section 122H(1) of the Water Act 1989 provides as follows:

122H Waterway management district of Melbourne Water Corporation

(1) The waterway management district of Melbourne Water Corporation is the land shown delineated in red on the plan lodged in the central plan office and numbered LEGL./05-406.

1. Section 122H was inserted into the Water Act 1989 from 1 July 2007, prior to the 2008 year within which the waterways charge was first levied on Ms Joseph.
2. A copy of the relevant lodged plan LEGL./05-406 was produced to me. It bears a notation that it was lodged in the central plan office on 15 September 2005. The lodged plan shows a large area extending out from Melbourne, with the boundary of that area clearly marked by a red line. By reference to other features on the plan (e.g. Rosslynne Reservoir), it can be demonstrated that the area around Bullengarook, including Ms Joseph's land, is within the relevant area.
3. The relevant 'district' is thus established by s 122H of the Water Act 1989 and the lodged plan. Moreover, by reference to s 300(1)(e) and (f), no further proof of the size, location or boundaries of the district, or whether particular land is within the district, is required unless contrary evidence is produced. Ms Joseph has not produced any contrary evidence. Indeed, Ms Joseph does not dispute that her land is within the area shown on this plan.
4. This should be enough to dispose of this issue. Ms Joseph however contends that the lodged plan was prepared for another and improper purpose, that its approval process at that time was invalid, and that former MMBW 'metropolis' (upon which Melbourne Water's district is based) was invalidly extended to cover the area within which her land is situated. However, even if there was merit in any of these contentions (which I do not accept), s 122H of the Water Act 1989 gives unambiguous and separate legislative status to the lodged plan LGEL./05-406 in setting the boundaries of Melbourne Water's waterway management district. The history of the lodged plan, or the reasons or process for which the plan was originally created, are irrelevant to that status.
5. I therefore find that Ms Joseph's land is within a properly constituted waterway management district of Melbourne Water, by reference to s 122H of the Water Act 1989 and the lodged plan LGEL./05-406.
6. Having made this finding on the clear evidence before me, it is unnecessary to respond to Ms Joseph's many arguments on the history or validity of the lodged plan or the declaration of the extended 'metropolis'. However, given the extensive submissions and documents provided by the parties on these issues, I make the following observations:
   • the functions of the former MMBW were effectively limited to an area defined as the 'metropolis' under that authority's governing legislation. However, although the 'metropolis' was initially constrained by the Melbourne and Metropolitan Board of Works Act 1890, that 1890 Act did not permanently fetter the objectives or functions of the MMBW or its successors, nor fix for all time the area of the metropolis. The regulatory environment has evolved over time.
   • under the relevant version of the Melbourne and Metropolitan Board of Works Act 1958[6], the definition of 'metropolis' included the land within 20.9215 kms of the Melbourne GPO and any additional land beyond this area declared to be included in the 'metropolis' by Order-in-Council. Section 3(3)(a) of the MMBW Act 1958 allowed for the Governor-in-Council, on application by the Board, to extend the 'metropolis' and, since 1992, the 'Board' has been defined to be Melbourne Water. There is nothing in the MMBW Act 1958 that precluded an extension of the 'metropolis', for example, only to built-up urban areas, or only to areas connected (or to be connected) to a water supply or drainage service, or only to areas not then covered by other catchment or waterways management legislation or authorities.
   • through the government policy "Our Water Our Future", Melbourne Water became responsible for broader regional waterways and drainage management across the Port Phillip and Westernport catchments. This included the Maribyrnong catchment extending beyond Gisborne, and included the predominantly rural area where Ms Joseph's land is situated. By Order-in-Council on 18 November 2005, the 'metropolis' under the 1958 Act was extended to increase Melbourne Water's operating area to give effect to that policy. Other parts of the policy were also implemented through the Water (Governance) Act 2006. It is not for the Tribunal to review or 'second guess' that policy. The lodged plan LGEL./05-406 is referenced in the Order-in-Council as showing the extended area shaded in light red on that plan. Ms Joseph's land is within that area.
7. I do not consider that there has been any substantive evidence produced or submission made by Ms Joseph to seriously support a view that the lodged plan LGEL./05-406 was not properly authorised, or that the declaration of the extended 'metropolis' in 2005 was ultra vires or invalid. As I have indicated, even if such a proposition was arguable, it is in any event superseded by the separate status given to the lodged plan under s 122H of the Water Act 1989 in setting the 'waterway management district' of Melbourne Water.

Is the charge a 'tariff'? Does Melbourne Water provide works or services that allow for a tariff to be levied on Ms Joseph or her land?

1. Section 259 of the Water Act 1989 empowers an Authority to impose a tariff. The term 'tariff' is defined in s 257 of the Water Act 1989 as follows:

tariff means a scale of charges by reference to which a fee is imposed by an Authority on the owner or occupier of a property for works or services provided by that Authority.

Ms Joseph contends that the waterways charge is not a tariff (as defined), but rather a tax, as she believes Melbourne Water provides no services to her or her land.

1. It is true that Ms Joseph's land is not connected to any water supply, sewerage or other utility services. In particular, Melbourne Water does not provide any of these direct utility services to her land. Equally, the definition of 'tariff' does not refer to any specific services, nor indicate that the services must be 'direct' or particular services provided by the Authority 'to the land'.
2. It is also true, as Ms Joseph asserts, that the waterways charge does not include drainage services, nor is it a charge for works under s 268 of the Water Act 1989. Ms Joseph's detailed material on these issues is however largely irrelevant, as Melbourne Water does not rely upon either as a basis for its waterways charge.
3. As presently constituted, Melbourne Water has a range of statutory functions and provides a range of works and services. Given that Melbourne Water is an Authority that has a 'waterway management district' (as discussed above), it is consequently an Authority that exercises waterway management functions under Division 2 of Part 10 of the Water Act 1989 - particularly by reference to ss 187(1) and 189 of that Act. It is the broader services provided under these waterway management functions that Melbourne Water contends provide the basis for the waterways charge. [I will deal separately, later in these reasons, with whether these functions are covered by the Regulatory Order that authorises the specific tariff in question].
4. I do not agree with Ms Joseph that Melbourne Water's waterway management functions should, in some way, be read down because other authorities (such as a catchment management authority) may have provided waterway services in the past, or may still provide some similar or overlapping services in her area. Melbourne Water's waterway management functions and district are expressly set out in the Water Act 1989, and have the imprimatur of Parliament.
5. Amongst a volume of material provided by Melbourne Water, it tendered a pamphlet[8] entitled 'Melbourne Water Waterways Charge' that was apparently circulated within its extended operational area prior to introduction of the charge in 2008. The pamphlet provides the background and rationale for the charge, and also contains the following:

The State Government has extended Melbourne Water's waterways and drainage boundary to cover new areas, including the area in which you live. With the extension of Melbourne Water's boundaries, the charge will now be paid by all property owners in the catchment. Everyone benefits either directly or indirectly from healthy waterways, a safe reliable drainage system and improved flood management. Sharing the cost of services across all properties in the catchment is the fairest possible approach.

What services does Melbourne Water provide with the Waterways Charge?

• improvements to river health through replanting, weed removal and erosion control
• grants for property owners and community groups to improve our waterways
• management and improvements to larger, regional drains
• operation of, and improvements to, flood management and flood warning systems
• provision of stormwater and drainage systems to service urban growth using the principles of sustainable development
• monitoring and investigations of waterways
• protection and improvement to water quality through improved stormwater management
• increased community and stakeholder engagement and involvement in our programs
• increased knowledge and awareness of river health and flood management issues through the delivery of education programs

1. This list of services is general in nature. However, Melbourne Water also referred me to its reporting of specific services provided on a municipality-by-municipality basis through a document and website report entitled "Waterways local update". The update for Macedon Ranges Shire for 2008/09[9] details specific works and services undertaken in specific waterways and locations by way of managing waterways, managing environmental flows, managing water quality, flood management, community involvement etc. Amongst the many projects and services set out in that update, examples include the following:
   • weed control and revegetation in the Jacksons Creek waterway between Dixon Field Recreation Reserve and Sankey Reserve, Gisborne.
   • working with Western Water and Southern Rural Water to upgrade water quality monitoring in Jacksons Creek to understand the impacts of reduced stream flows in drought, and working with these agencies and 'Waterwatch' participants to prepare an emergency contingency plan for this waterway.
   • laying linear strips of paving in the Romsey Library car park to absorb fluids and thus remove stormwater pollutants entering the local waterway.
2. On the basis of this material, I am satisfied that Melbourne Water provides waterway services in its district, that are funded by the waterways charge, and which satisfy the definition of 'tariff' in s 257 of the Water Act 1989. As I have indicated, the definition of 'tariff' does not require that those works or services must be particular services provided by the Authority directly 'to the land', such as a water supply service. It is not a matter for the Tribunal to review the appropriateness of the charge or the appropriateness of particular works and services. It is sufficient for the purposes of this review proceeding that Melbourne Water establishes a nexus between the fee imposed and the works or services provided across the district for the benefit of property owners and occupiers in the district. I am satisfied that such a nexus exists here.
3. More particularly, I find on the basis of the above that Ms Joseph is a recipient or beneficiary of those waterway services, along with other land owners and occupiers in the district. The waterways charge has therefore been lawfully imposed as a tariff on her and her land.
4. These findings should be sufficient to dispose of this issue. Moreover, by reference to s 300(1)(j) of the Water Act 1989, no further proof of the setting of a tariff is required unless contrary evidence is produced. Ms Joseph has not produced any contrary evidence.
5. However, Ms Joseph further contends that, even if some services are provided, those services are for a broader public benefit rather than a 'particular' service provided to her, and the tariff is a tax rather than a fee-for-service.
6. For this proposition, she relies primarily on the decision in Air Caledonie International v Commonwealth[10]. A fee or charge may have the character of a 'tax' where it is a compulsory exaction of money by a public authority for a public purpose, enforceable by law, and not a payment for services rendered. The decision suggests that, even where some services are provided, the charge may still be a tax where the payer is given no choice about whether he or she acquires the service, where there is no particular service provided, and where the amount of the charge has no discernible relationship to the value of the service. Ms Joseph thus contends that a waterways charge can only be applied as a fee for a 'particular' service provided to her and where the fee is commensurate with the value or benefit she receives.
7. Melbourne Water initially contended that the Tribunal has no jurisdiction to decide this issue. However, as I indicated earlier in these reasons, I consider it would be open to me to consider such an issue insofar as it is necessary to establish the rights and obligations of Melbourne Water vis-à-vis Ms Joseph in respect of the waterways charge relevant to this review proceeding.
8. That said, it is necessary to decide this issue for the purpose of this proceeding? Much as the issue is of interest to Ms Joseph, there is some doubt as to the necessity, utility or obligation of the Tribunal to determine whether this charge has the character of a tax. This is particularly the case given the limited ambit of the grounds of review, the findings I have already made on the services provided, and the absence of any 'contrary evidence' provided by Ms Joseph for the purpose of s 300(1)(j) of the Water Act 1989 to rebut the presumption of regularity in the setting of the tariff. At the end of the hearing, I enquired of the parties as to what was the real consequence for this proceeding (if any) of the charge being characterised as a tax, and invited the supplementary submissions to address that issue.
9. Ms Joseph essentially argues that this characterisation is critical because, if a tax, the waterways charge is contrary to the Bill of Rights 1688 (as incorporated under Victorian law) in that it has not been properly authorised by Parliament, nor paid or collected as consolidated revenue, and that the charge is therefore invalid on that basis.
10. I do not agree with this proposition. I prefer the response provided in the supplementary submission by Melbourne Water on this issue. Even if the charge has the character of a tax (which Melbourne Water does not concede), there is evidence that:
    • the Bill that introduced the relevant provisions of the Water Act 1989 met the legislative requirements for an appropriations bill under the Victorian Constitution Act 1975; and
    • the tariff under ss 259 and 260 of the Water Act 1989 was set with the authority of and in accordance with the express terms of that Act.
11. Furthermore, in addition to s 259(1) of the Water Act 1989 set out earlier and empowering the imposition of a tariff, s 259 continues:

(2) A fee imposed under a tariff or development tariff on a property may be -

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

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

(ca) in the case of a fee imposed under a tariff set by Melbourne Water Corporation -

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

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

(d) any combination of amounts referred to in paragraphs (a), (b) and (c) and in the case of Melbourne Water Corporation, amounts referred to in paragraph (ca).

(3) In fixing the fees imposed under a tariff that is based on the valuation of a property an Authority may use a valuation equalisation factor.

(4) An Authority that imposes fees under a tariff or development tariff (other than fees of a fixed amount) may, by resolution, fix a minimum amount or no amount payable under the tariff for any property or class of property in respect of which a fee is imposed.

1. The definition of 'tariff' in s 257 must be read in conjunction with these provisions. Although s 259(2)(c) makes provision for a tariff to be set by reference to the value of the service provided, this is but one of a number of options. Parliament has expressly made provision for other alternative means of fixing the charge, including by a fixed or minimum amount.
2. It follows that Ms Joseph's assertion that the waterways charge should be characterised as a tax, because it is not for a 'particular' service or commensurate with the value of the service provided to her, does not really lead anywhere for the purposes of this review proceeding. I therefore agree with Melbourne Water that it is unnecessary to decide finally whether the waterway charge is a tax. It is sufficient for this review proceeding that the waterways charge falls within the ambit of s 259 of the Water Act 1989 and the definition of a 'tariff' in s 257. For the reasons set out above, I am satisfied that it does, based on the waterways works and services Melbourne Water funds through the tariff in its waterway management district. It therefore also follows that Ms Joseph is not released from any liability to pay the waterways charge on this basis.
3. Even if I am wrong on this conclusion, and the characterisation of the charge is in some way relevant in this proceeding, Ms Joseph has not satisfied me that the waterways charge is a tax rather than a fee-for-service.
4. Melbourne Water referred me to a later decision of the High Court in Airservices Australia v Canadian Airlines International Ltd[11] that discussed and qualified the decision in Air Caledonie that Ms Joseph relies upon. The 'discernible relationship' between the amount of the charge and the value of the service that the Court had found important in Air Caledonie was held not to be determinative in the latter case. The Airservices Australia decision suggests that a charge may not be a tax in certain circumstances, including where the charge is not imposed to raise revenue for the State, where the funds are received and retained by an agency to meet the cost of works and services across a range of users pursuant to its statutory functions, where those services are part of an activity that needs to be highly integrated across users, and where the fee has a material and ascertainable relationship with those services. In such circumstances, the Court held that there was no warrant for concluding that the charge amounted to taxation on the ground that the charge exceeded the value to particular users of particular services.
5. Although Ms Joseph referred to the Airservices Australia decision in her supplementary submission, she did not really address this key issue, and maintained her primary reliance on the decision in Air Caledonie.
6. By reference to the Airservices Australia decision, Melbourne Water argued that the fact that the waterways charge here is not fixed by reference to the particular benefit or value that each individual property receives does not necessarily alter its characterisation as a fee-for-service. I agree. It should also be emphasised that, whilst the principles in cases such as Air Caledonie or Airservices Australia may be helpful, each case turns on its own facts, and the particular fee or charge in question and the legislative scheme under which it is levied or imposed.
7. The view I have reached is bolstered by the particular legislative scheme before me under the Water Act 1989, including s 259(2) referred to above. A fee imposed under a tariff under the Water Act 1989 may be fixed (including through a fixed or minimum amount) without there being a relationship between a particular service and the value of that service to a particular individual. Here, a material and ascertainable relationship is nonetheless clearly established between the waterways charge and the services provided by Melbourne Water in accordance with its waterway management functions under Part 10 of the Water Act 1989.

1. Ms Joseph contends that Melbourne Water's resolution setting the tariff in June 2008 was not in accordance with s 260 of the Water Act 1989. However, notice of the resolution was published in newspaper in accordance with s 260(2) - i.e. in the Herald Sun on 27 June 2008 - and that notice contained the information required by s 260(3).
2. Ms Joseph contends that the non-compliance with s 260 is that the resolution stems from a regulatory order that, in turn, appears to be based on sections of the now repealed MMBW Act 1958. This is not evident from s 260 or the resolution, or Ms Joseph's submission, but I have dealt with this broader argument about the MMBW Act 1958 under Ground 2 later in these reasons.
3. Ms Joseph also contends the fee set by the resolution is not in accordance with s 259(4) of the Water Act 1989. As I have set out earlier, that section provides as follows:

259 (4) An Authority that imposes fees under a tariff or development tariff (other than fees of a fixed amount) may, by resolution, fix a minimum amount or no amount payable under the tariff for any property or class of property in respect of which a fee is imposed.

1. By reference to the published notice in the Herald Sun, "Fees are based on the 1990 Net Annual Value (NAV) or Site Value (SV) of the property subject to a minimum". For properties inside the Urban Growth Boundary, this leads to a clear outcome under the chart in the published notice. For example, a residential property has a fee assessed at a rate of 0.8252c per $ NAV, with to a minimum fee of $62.08.
2. For most properties outside the Urban Growth Boundary (including Ms Joseph's land), the chart in the published notice shows a fee assessed at a rate of 0c per $ NAV with to a minimum fee of $38.88. Melbourne Water has assessed the charge applying to Ms Joseph at this minimum fee. Ms Joseph however contends that, under s 259(4), a minimum fee can only be imposed where a fee is imposed. If the fee derived from the property value is zero, she contends that there is in reality no fee and therefore no minimum fee can be imposed.
3. In my view, Ms Joseph's interpretation of s 259(4) is wrong, and involves an artificial reading of that provision. Moreover, by reference to the definition of 'tariff' in s 257, a tariff under s 259 is a scale of charges by reference to which a fee is imposed. When one has regard to the totality of the documents that underscore the setting of the fee, it is clear that the 'scale' of charges for Melbourne Water's overall drainage and waterways charges differentiate between different classes of properties. This includes, for example, whether the property is inside or outside the Urban Growth Boundary, or whether the property receive drainage and waterway services or just waterway services, or whether it is in a particular area[12]. There is no reason why the lower end of this scale[13] cannot be zero, and still be subject to a minimum fee. In a sense, that is the very purpose of having a 'minimum' fee. The property is still within a class of property for which a fee is imposed for the purpose of s 259(4), and a minimum amount can be fixed under that provision.

1. Ms Joseph contends that the imposition of the waterways charge is invalid and/or she is not liable to pay it, on the basis that the charge is contrary to her right to use water without charge under s 8 of the Water Act 1989. That section provides that 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.
2. Ms Joseph produced no evidence in support of this argument, and it is an argument that in my view is wholly lacking in merit. Plainly, the waterways charge is not a charge for water supply or use. I have referred earlier to the services funded by the waterways charge.
3. Ms Joseph also contends that the charge infringes on her property rights under s 20 of the Charter of Human Rights and Responsibilities Act 2006 - i.e. a person must not be deprived of his or her property other than in accordance with law. Again, no evidence was produced in support of this argument and I consider it also lacks merit.
4. Even if the imposition of a waterways charge affects a property right of Ms Joseph under s 20 of the Charter at all (which it debateable), such as depriving the opportunity for Ms Joseph to reasonably enjoy her property, s 20 only provides that a person must not be deprived of property 'other than in accordance with law'. I do not consider that the waterways charge in any way deprives Ms Joseph of any legal or proprietary interest in her land, nor the ability to use or develop that land. In any event, for reasons discussed elsewhere in these reasons, the imposition of the charge is clearly in accordance with the law, in the exercise of Melbourne Water's power under s 259 of the Water Act 1989. Moreover, even if the Charter is in some way engaged, I consider that the limits imposed on any property right affected by the charge would be justified having regard to the matters in s 7(2) of the Charter[14].

1. Ms Joseph contends that Western Water does not have the authority to collect the waterways charge on Melbourne Water's behalf. I am by no means convinced that this argument falls within the available grounds of review or, if successful, would render the charge invalid. However, I have nonetheless dealt with it.
2. Although s 281B(2) of the Water Act 1989 indicates that the charge is payable by the date specified in a notice "issued by Melbourne Water", that provision must be read in conjunction with s 281A. The relevant part of s 281A provides:

281A Agreements with respect to collection of fees under tariffs

(1) Melbourne Water Corporation may enter into an agreement with -

with respect to the collection by that licensee, Council or any other person (as the case requires), on behalf of Melbourne Water Corporation, of any fees under tariffs, charges, interest or other money due to Melbourne Water Corporation under this Act.

1. Ms Joseph argued that Western Water was not a licensee under the former MMBW Act 1958, and therefore had no authority, and that she suspected that "it was just assumed that Western Water could operate in the same manner as the metropolitan water retailers". The assumption is wrong, but the argument also misses the point. It is correct that Western Water is not a licensee[15]. However, s 281A applies equally to 'any other person'. Western Water is a water corporation and a legal 'person' for the purposes of s 281A(1)(c).
2. Ms Joseph had sought that Melbourne Water and Western Water produce the agreement to which s 281A might apply. Melbourne Water did not respond directly to this, but an agreement does not necessarily arise solely through a formal written contract. An agreement may be written, oral, proved by conduct, or perhaps a combination of these. In this instance, whilst no formal contract has been produced, I am satisfied that Melbourne Water and Western Water have entered into an agreement for Western Water to collect the tariff on Melbourne Water's behalf. Support for this view includes the following:
   • Melbourne Water and Western Water are the only two parties to any agreement. They are jointly represented in the proceeding before me, and assert an agreement between them, and there is no evidence to the contrary produced by Ms Joseph; and
   • in the month prior to the services account being issued, Melbourne Water and Western Water had sent a joint letter to all recipients of the charge. This letter was on a joint letterhead, and signed by both corporations, confirming that Western Water would be collecting the charge on Melbourne Water's behalf[16].

1. It follows that Ms Joseph's application fails under Grounds 1 and 4 - i.e. the grounds under s 266(1)(b) and (e) of the Water Act 1989. Subject to a consideration of Grounds 2 and 3, I find that Ms Joseph is a person liable to pay the tariff, and that the fee imposed by the Authority is a correct application of the tariff as set. In reaching this view, I have also had regard to all of the material in the folders of documents of both parties that relate to the background and setting of the waterways charge.

Ground 2: Was the tariff properly set in accordance with a regulatory order?

1. Ms Joseph contends that the tariff was not set in accordance with an Order under section 4D(1)(a) of the Water Industry Act 1994 or in accordance with the Essential Services Commission Act 2001. This is an available ground of review under s 266(1)(c) of the Water Act 1989.
2. In particular, Ms Joseph argues that, although there is a regulatory order under s 4D of the Water Industry Act 1994, that regulatory order only facilitates a tariff for 'metropolitan drainage services' under the former MMBW Act 1958, and does not authorise a tariff by way of a waterways charge under the Water Act 1989.
3. This issue became a key issue in the proceeding, as the relevant documents are not as clear as one might expect.
4. It is common ground that the water industry is a 'regulated industry' under the Water Industry Act 1994 and for the purposes of the Essential Services Commission Act 2001[17]. Under s 4D of the Water Industry Act 1994, a 'Water Industry Regulatory Order' may specify, amongst other things, the goods and services within the regulated water industry in respect of which the Essential Services Commission has the power to regulate prices. Both parties agree that the only relevant regulatory order for my consideration is the 'Water Industry Regulatory Order 2003' (2003 WIRO) gazetted on 18 December 2003[18].
5. The 2003 WIRO covers a wide range of matters. Paragraph 6(b) includes the following:

6(b) The following services supplied by or within the regulated water industry ... are specified as prescribed services in respect of which the Commission has the power to regulate prices:

1. Paragraph 5 of the 2003 WIRO provides:
   1. In this Order, unless the contrary intention appears the words and phrases have the meanings given to them in Schedule 1.
2. Schedule 1 of the 2003 WIRO includes the following:

"metropolitan drainage service" means a service provided by Melbourne Water in connection with the performance of its functions under Part X of the Melbourne ad Metropolitan Board of Works Act 1958.

1. Melbourne Water concedes that it relies on these provisions in the 2003 WIRO as the regulatory foundation for the waterways charge.
2. Ms Joseph notes that Part X of the MMBW Act 1958 has been repealed and argues, consequently, that there is no authority evident in the 2003 WIRO to authorise the setting of a waterways charge under Part 10 of the Water Act 1989. In simple terms, she contends that, with the repeal of the MMBW Act 1958, there is no longer a 'metropolitan drainage service' (as defined) provided under the 2003 WIRO, and thus no regulatory foundation for the waterways charge.
3. Melbourne Water's initial response was to argue that the functions under Part X of the MMBW Act 1958 are now performed by Melbourne Water under Part 10 of the Water Act 1989, and that the 2003 WIRO therefore implicitly applies to the successor legislation. However, at the hearing, Melbourne Water was unable to point to any transitional provision or rule of statutory interpretation that led clearly to this outcome.
4. At the end of the hearing, I requested that Melbourne Water provide a further submission on this issue, with a right of reply to Ms Joseph.
5. Having considered those submissions, I am not wholly convinced by Melbourne Water's argument that the reference in the 2003 WIRO to the former Part X of the MMBW Act 1989 can be simply construed as a reference to Part 10 of the Water Act 1989 solely by relying on a 'purposive approach' to statutory interpretation. It is possible that the intent of Parliament may be gleaned from reading the legislative scheme for the water industry as a whole, using modern principles of statutory interpretation. This may involve looking broadly at the reforms introduced through the Water (Governance) Act 2006 that led to the repeal of the MMBW Act 1958 and changing operational arrangements for water corporations such as Melbourne Water. However, the changes to the legislative scheme in 2006 did not include any clear transitional provisions on the specific matter before me, whilst including many transitional provisions covering other matters. I am also conscious of other general principles of statutory interpretation that suggest that provisions imposing a rate or charge should be carefully (and sometimes narrowly) construed.
6. Ultimately, though, it is not necessary to decide this issue solely by reference to a general purposive approach to interpretation of the 2003 WIRO and the legislative scheme. I agree with Melbourne Water that further support can be found in ss 16 and 31 of the Interpretation of Legislation Act 1984. The relevant parts of those provisions provide as follows:

Where an Act or a provision of an Act is repealed and re-enacted (with or without modification) then, unless the contrary intention expressly appears -

(a) any reference in any ... subordinate instrument to the repealed Act or provision shall be construed as a reference to the re-enacted Act or provision; and ...

31 Construction of references in subordinate instruments to other enactments

(1) A reference in a subordinate instrument ... to any Act or provision of an Act shall, unless the contrary intention appears, be construed -

(b) if the ... Act or provision in question has been re-made or re-enacted (with or without modification), as a reference to the ... Act or provision as re-made or re-enacted and in force for the time being; ...

1. The 2003 WIRO is a subordinate instrument to which these provisions would apply. The question is therefore whether Part 10 of the Water Act 1989 is a re-making or re-enactment (with or without modification) of the repealed Part X of the MMBW Act 1958. In her supplementary submission, Ms Joseph contends that there is no 're-enactment', as Part 10 of the Water Act 1989 already existed when Part X of the MMBW Act 1958 was repealed. However, I disagree that this is solely a temporal matter. I am satisfied that there was a re-enactment for the following reasons:
   • the functions of Melbourne Water under Part X of the MMBW Act 1958 that comprised "metropolitan drainage services" (as defined) under the 2003 WIRO included drainage and waterways functions. Part X is headed "Metropolitan Drainage and Waterways" and s 261(2) (within Part X) clearly set out Melbourne Water's waterway management functions within its then operating area. Part X was not limited only to drainage functions.
   • Section 189 of the Water Act 1989 (within Part 10) largely mirrors the waterway management functions under s 261(2) of the repealed MMBW Act 1958. They are clearly provisions of a similar nature and purpose.
   • Although Part 10 of the Water Act 1989 had existed prior to the repeal of Part X of the MMBW Act 1958, it had existed then primarily in relation to other water authorities. Part 10 was however expressly modified by the Water (Governance) Act 2006 to deal with the repeal of Part X of the MMBW Act 1958 and to bring Melbourne Water's waterway management functions and operating area under the Water Act 1989 provisions (with modifications).
   • I agree with Melbourne Water that the modifications to Melbourne Water's waterway management functions brought about by the Water (Governance) Act 2006, having regard to their substance and degree, were a re-enactment of those functions, and that to find otherwise would produce an absurd outcome[19]. The prior Part X of the MMBW Act 1958 was repealed, but effectively continued (or, to all intents and purposes, was re-made or 're-enacted') within Part 10 of the Water Act 1989.
   • Sections 16 and 31 of the Interpretation of Legislation Act 1984 do not require that a re-enactment be in identical terms. The 2006 reforms included the introduction of s 122H into the Water Act 1989 to clearly identify Melbourne Water's waterway management district, and (by reference to s 189(1)), to thus apply Part 10 to that district. On any overall reading of these provisions, it is clear that this was intended to 'transition' Melbourne Water's waterway management powers and functions (with some modifications) from the repealed Part X of the MMBW Act 1958 to Part 10 of the Water Act 1989.
2. It would have been helpful, indeed preferable, if the government had updated the WIRO 2003 following the 2006 water industry reforms, to update the definition of 'metropolitan drainage services' to refer to Part 10 of the Water Act 1989 or to more transparently provide the regulatory foundation for the waterways charge in the regulatory order. In my view, it should still do so. However, the absence of this updating of the 2003 WIRO is not fatal to its current operation. Having regard to the Interpretation of Legislation Act 1984, I am satisfied that the reference in the 2003 WIRO to the former Part X of the MMBW Act 1989 can and should be construed as a reference to Part 10 of the Water Act 1989. There is certainly no 'contrary intention' evident from the material before me that in my view warrants a different interpretation.
3. It follows that the tariff has been set in accordance with an Order (i.e. the 2003 WIRO) under section 4D(1)(a) of the Water Industry Act 1994, and this ground of review fails.
4. Both parties referred me to other aspects of the setting of the tariff. This included Melbourne Water's Operating Charter, Statement of Obligations, and Waterways Management Plan, and other information before the Essential Services Commission leading to the fixing of the tariff for 2008-09. On 26 June 2008, the Essential Services Commission provided its report on the "2008 Water Price Review" through which the tariff was set under paragraph 8 of the 2003 WIRO and for the purposes of s 33 of the Essential Services Commission Act 2001. None of this further information was materially in dispute in relation to the ground under s 266(1)(c). My finding on the interpretation of the 2003 WIRO and its application to Part 10 of the Water Act 1989 is thus sufficient to determine this ground.

Ground 3: Did Melbourne Water fail to give any required notice?

1. The available ground of review under s 266(1)(d) of the Water Act 1989 is that the Authority did not give the required notice that the property is a serviced property.
2. Ms Joseph contends that no required notice was given to her, but I consider that she has misconceived this ground, and that no notice was actually required in this instance.
3. Under s 144 of the Water Act 1989, an Authority may, by notice in writing, declare any land to be a serviced property for the purposes of the Act. This is the notice that, if required but not given, may provide a ground of review under s 266(1)(d). However, s 144(5) expressly provides that this section does not apply to Melbourne Water, and s 144A separately deems all rateable land[20] in Melbourne Water's waterway management district to be a serviced property for the purposes of Melbourne Water's waterway management functions under Part 10 of the Act.
4. There was therefore no 'required notice' that Melbourne Water had to give Ms Joseph in relation to the designation of her land as a serviced property for waterway management purposes. Her land is serviced property by the deeming provision under s 144A rather than through notice under s 144. The ground under s 266(1)(d) does not therefore arise in the review of a Melbourne Water waterways charge, but is only available in the review of fees imposed on serviced properties under other tariffs by other authorities.
5. I note for the record the submission by Melbourne Water that, despite not being required to give notice under s 144, it had undertaken a substantial communications strategy prior to introduction of the waterways charge in its extended operational area, including the pamphlet and letter I have referred to earlier.

1. It follows that Ms Joseph has failed to make out a case under any of the available grounds of review she has raised. The application is therefore dismissed, and the waterways charge levied on her and her land is confirmed.

[1] 256 Trott Road, Bullengarook (C/T Volume 04533 Folio 571). By reference to the title plan, it appears that the land is approximately 52 hectares in size. The land is zoned 'Rural Conservation'.

[2] The accounts (and title) are in Ms Joseph's maiden name, A M Rait. No issue arises from this.

[3] e.g. in ss 97-98 of the Victorian Civil and Administrative Tribunal Act 1998.

[4] These were set out in my interim orders of 8 and 16 July 2010, allowing 2 weeks (later extended to 4 weeks) for the supplementary submission, and 4 weeks for Ms Joseph to respond. Melbourne Water's supplementary submission was ultimately settled by Rowena Armstrong QC and Greg Davies QC.

[5] see Ms Joseph's grounds set out in the Application for Review. For example, the issue of a legally declared waterways district is raised under both grounds.

[6] referred to hereafter as the MMBW Act 1958. Version 102 of the MMBW Act 1958 was the version in force from 25 August 2005 until repeal of the Act on 1 July 2007. The provisions of the MMBW Act 1958 I have referred to existed under several earlier versions of the Act, but I was not informed of their origin.

[7] Ms Joseph's contention was, in part, based on a letter from Melbourne Water's solicitors dated 8 June 2010 that had incorrectly stated that Melbourne Water had not requested the Order-in-Council. The documents subsequently located and produced by Melbourne Water, including separate letters from Melbourne Water to the Governor and Water Minister dated 14 June 2005 and a Board resolution of 17 June 2005, clearly evidence the application for the Order-in-Council under s 3 of the MMBW Act 1958.

[8] Tab 15 in Melbourne Water's folder of documents.

[9] Tab 31 in Melbourne Water's supplementary folder of documents. These are also set out in Ms Joseph's supplementary submission at pp 13- 16. Macedon Ranges Shire is the municipality in which Ms Joseph's land is situated.

[10] (1988) 165 CLR 462, 466-467 (High Ct), adopting the principle in Matthews v Chicory Marketing Board (Vict) (1938) 60 CLR 263, 276 per Latham J.

[11] (1999) 202 CLR 133, 169-170 & 177-9 (High Ct) per Gleeson CJ and Kirby J. See also at 284-7 per Gummow J.

[12] for example, such as the Koo Wee Rup - Longwarry flood protection area, which is levied with a differential fee under the tariff.

[13] insofar as the fee is fixed according to the value of the property under s 259(2)(b),(d) or (3).

[14] following the principles I discussed in Smith v Hobsons Bay CC (Red Dot) [2010] VCAT 668

[15] The former MMBW Act 1958 is irrelevant. A 'licensee' and a 'water corporation' are both defined under the Water Act 1989, with a licensee being established under the Water Industry Act 1994. Under the governance arrangements in the water industry, there are 16 water corporations and 3 licensees. Western Water is a water corporation, and not a licensee. Melbourne Water's solicitors confirmed this in a letter to Ms Joseph dated 8 June 2010.

[16] The letter is at Tab 14 in Melbourne Water's folder of documents. The services account dated 7 August 2008, through which the tariff is levied, also expressly states that "Western Water collects the charge annually on Melbourne Water's behalf".

[17] see Part 1A of the Water Industry Act 1994, in particular ss 4A and 4B.

[18] Tab 2 in Melbourne Water's folder of documents. The gazettal, and two amendments to the 2003 WIRO, are at Tabs 27, 28 and 29 in Melbourne Water's supplementary folder of documents.

[19] following, to the extent relevant, Felman v Law Institute of Victoria [1998] 4 VR 324 (Court of Appeal), particularly at 339-340 per Kenny JA. Her Honour found that s 16 of the Interpretation of Legislation Act 1984 could make adequate provision for the kinds of orders then in question, in the absence of other transitional provisions, and that a contrary view would produce an irrational result.

[20] i.e. rateable land within the meaning of the Local Government Act 1989.