Landscape South Australia (Transitional Provisions) Regulations 2019

The Landscape South Australia (Transitional Provisions) Regulations 2019 provides the machinery for moving from the former Natural Resources Management Act 2004 (the repealed Act) to the Landscape South Australia Act 2019 (the Act). It is not a permanent regulatory regime but a set of temporary rules that keep existing structures, obligations, and instruments alive until the new Act is fully operational. Mechanically, the regulations do several things at once. First, they delay the application of certain governance provisions of the Act: sections 15(4) and (5) and 16 (which govern the appointment and composition of regional landscape board members) do not apply until 1 January 2021, giving the Minister flexibility to appoint initial members on an interim basis. Second, they preserve the existence of regional NRM boards, NRM groups, and NRM committees that were in place under the repealed Act, with modifications to map their responsibilities onto the new regional landscape board structure. Third, they assign responsibility for finalising the accounts and annual reports for the 2019/2020 financial year to the Chief Executive rather than the old boards, and excuse newly formed landscape boards from reporting if they held no money in that year. Fourth, the regulations continue the operation of financial obligations under the Water Resources Act 1997 , including levies, penalties, meter rentals and other fees , and direct that amounts recovered under the repealed Act still be paid into the NRM Fund and applied for either old or new purposes. Fifth, they allow regional NRM boards to use their existing funds to support the implementation of the new Act. Sixth, they create two additional transitional financial years (2023/2024 and 2024/2025) during which a regional landscape board’s annual business plan need not be consistent with the regional landscape plan (if that plan is merely a carried-over NRM plan), and the Minister may extend the interim levy scheme to cover those years. Seventh, they preserve a range of water management instruments: specified regulations under the old regime continue in force, directions to landowners under section 134 of the repealed Act continue as if made under section 111 of the Act, proclamations and ministerial determinations persist, and procedures for licence applications carry over. Eighth, bundled water licences , where a water licence includes a quantity of water under a water allocation plan or under the repealed Act , may be treated as water access entitlements and traded accordingly, and water allocation plans covering those resources are exempt from certain requirements (section 53(1)(c) and (d) of the Act) until the designated day for each resource. Ninth, the Water Register provisions in Schedule 4 of the Act (clauses 6(e) and (f), Parts 3 and 4, and clause 15) are deferred until 1 July 2022. Tenth, the Chief Executive rather than the general manager of a regional landscape board determines terms and conditions for staff employed under section 35(4) of the Act before 1 July 2021. Lastly, the Minister may approve a landscape affecting activities control policy by Gazette notice without following the normal amendment procedures if the policy is substantially the same as existing provisions, and notices under section 187 of the repealed Act (control or quarantining of plants or animals) continue in force under the new Act.

The regulations introduce or rely on several key concepts that define the transitional structure. The “designated day” appears repeatedly and is defined differently depending on the context: for governance provisions (r 6 and r 7) it means the designated day under Schedule 5 clause 90 of the Act; for water management provisions (r 12) it means the designated day under Schedule 5 clause 101 of the Act; and for bundled water licences (r 13) it also means the day under clause 102. This multiplicity means the timing of transition varies across different parts of the regime, which creates complexity for anyone trying to ascertain when old rules cease and new rules commence. The “prescribed transitional financial year” is defined in r 11 as the 2023/2024 and 2024/2025 financial years , these are years during which boards may operate without fully aligning their business plans to the new regional landscape plans, and the Minister may keep the interim levy scheme running. “Bundled water licences” (r 13) refers to water licences that include a quantity of water as determined under a water allocation plan or under section 164N of the repealed Act or section 155 of the Act; these may be treated as water access entitlements, which is a significant shift because it enables the transfer or dealing with those rights separately, potentially affecting water trading markets. A “landscape affecting activities control policy” (r 15) is a policy the Minister can approve by Gazette notice, bypassing the normal procedures under the Act, provided the Minister certifies the policy is in substantially the same terms as existing provisions , this concept effectively allows the continuation of existing restrictions without fresh scrutiny. The “NRM fund” under section 120 of the repealed Act is relevant for r 10, which permits old boards to spend that money on implementing the new Act. The “Water Register” is subject to a deferral: until 1 July 2022, certain parts of Schedule 4 of the Act do not apply, delaying full implementation of the new water rights registration system. The concept of “continuing effect” is central: many actions under the repealed Act , directions, proclamations, determinations, notices , are deemed to have been made under the corresponding provisions of the new Act and may be varied or revoked under the new Act. This avoids a legal vacuum but also means that old decisions made under a different statutory framework now carry the authority of the new Act, which may have different procedural safeguards.

These transitional provisions affect a broad range of public and private actors. Regional landscape boards are the most directly affected: they must operate initially without the full governance requirements of the Act, with board members appointed through a simplified process until 1 January 2021 (r 4). The boards also bear responsibility for absorbing former NRM groups into their oversight (r 6) and inheriting committees from the old NRM boards (r 7). Where a board was established during 2019/2020 and held no money, it is not required to prepare an annual report for that year (r 8(3)), which reduces administrative burden but also reduces transparency. The Chief Executive is affected significantly: he or she must finalise the accounts and annual reports for regional NRM boards and NRM groups for the 2019/2020 financial year (r 8(1)), and determines the terms and conditions of staff employed under section 35(4) of the Act before 1 July 2021 (r 14). This centralises employment control away from board general managers. Regional NRM boards are affected because they can still use their existing funds to support the new Act (r 10), and they are subject to continued oversight by the Minister as legacy bodies. NRM groups that were not abolished before the designated day continue in existence until the Minister abolishes them by Gazette notice (r 6(1)); they are responsible to the relevant regional landscape board and must assist in administering the new Act, while still operating under old provisions (sections 47 to 62 of the repealed Act, except section 61). This creates a dual accountability: to the new board but under old rules. NRM committees are taken to be committees under the new Act and may be reconstituted or dissolved by the board (r 7). Holders of water access entitlements under bundled water licences are affected because their bundled quantity may now be treated as a separate water access entitlement that can be transferred (r 13(1)), creating new trading opportunities but also potential conflicts with existing allocation plans. Landowners subject to directions under section 134 of the repealed Act (r 12(2)) or to notices under section 187 of the repealed Act (r 16) are affected because those controls continue unchanged under the new Act, even if the new Act has different appeal or review mechanisms. Persons liable for levies, penalties, meter rentals or other fees under the Water Resources Act 1997 remain liable (r 9). The Minister is affected by having expanded powers: to approve landscape affecting activities policies by notice without normal procedures (r 15), to extend the interim levy scheme (r 11(1)(b)), and to vest or distribute property of abolished NRM groups (r 6(2)(c)). The Commissioner for Public Sector Employment is involved in approving staff terms (r 14). The Governor retains power to vary or revoke continued regulations (r 12(1)) and proclamations (r 12(3)). Ultimately, anyone dealing with water, land management, or pest control in South Australia during the transitional period is affected, because the legal basis for these activities may be a mix of old and new provisions.

The regulations impose specific duties and confer certain rights on various actors. The Chief Executive has a duty to finalise accounts and financial statements for the 2019/2020 financial year for regional NRM boards and NRM groups (r 8(1)(a)) and to prepare an annual report for those entities for that year (r 8(1)(b)). This is an administrative duty that shifts final reporting responsibility from the dissolved boards to the central department. The Chief Executive also has the duty to determine terms and conditions of employment for staff under section 35(4) of the Act before 1 July 2021, but only after obtaining the approval of the Commissioner for Public Sector Employment (r 14). The Minister has the right to appoint a presiding member for a regional NRM board when two or more members are appointed (r 5(2)(b)) and to abolish NRM groups by Gazette notice (r 6(1)). The Minister also has the right to approve a landscape affecting activities control policy by Gazette notice without normal procedures, provided the Minister certifies the policy is substantially the same as existing provisions (r 15) , this is a significant procedural exemption that reduces the opportunity for stakeholder input and review. The Minister may extend the interim levy scheme to prescribed transitional financial years (r 11(1)(b)), subject to qualifications: sections 51(4) to (10) of the Act apply, and the scheme may not modify requirements of sections 66, 71 or 76 of the Act for those years. This gives the Minister discretion to keep levy arrangements in place longer than originally planned. Regional NRM boards have the right to apply any part of their fund under section 120 of the repealed Act to support implementation of the new Act (r 10) , this is an explicit permission to spend old money on new purposes. NRM groups have the right to continue in existence until abolished (r 6(1)), and while they exist they are responsible to the relevant regional landscape board or boards (r 6(2)(a)). They also continue to have functions under the old provisions (sections 47 to 62 of the repealed Act), but those functions are expanded to include supporting the objects of the new Act (r 6(2)(b)(iii)). Holders of bundled water licences have the right to treat the quantity of water included in their licence as a water access entitlement, and may transfer or otherwise deal with it as such (r 13(1)). This is a right to unbundle and trade water rights that may not have been separately tradeable before. However, this right is contingent on the water resource and the designated day under clause 102 of Schedule 5 of the Act , until that day, the right does not fully crystallise. Water allocation plan makers have the right not to comply with section 53(1)(c) and (d) of the Act for prescribed water resources under clause 102 (r 13(2)). Those provisions relate to water access entitlements and allocations, so this exemption delays full compliance until the designated day. The duty of the regional landscape board to prepare an annual business plan consistent with a regional landscape plan is relaxed for the 2023/2024 and 2024/2025 financial years, insofar as the plan is a carried-over NRM plan (r 11(1)(a)). This means boards may have inconsistent planning documents , a business plan that does not align with the landscape plan , which could create confusion for water users and property owners trying to understand future regulatory direction.

The regulations themselves do not create new penalties or enforcement powers. Instead, they rely on the underlying Acts (the Landscape South Australia Act 2019 and the repealed Natural Resources Management Act) for penalty provisions. However, the transitional regulations ensure that enforcement mechanisms from the old regime continue seamlessly. For financial obligations, r 9 brings levies, penalties, interest, meter rentals and other fees under the Water Resources Act 1997 into the ambit of Schedule 5 clause 96(d) of the new Act. Amounts that are recovered under the repealed Act are to be paid into the NRM Fund and applied either for purposes under the repealed Act or for purposes connected with the operation of either Act (r 9(3)). This means that the enforcement machinery for collecting these amounts , which could include court orders, garnishee notices, or licence suspension under the old law , remains effective even after the repeal of the relevant provisions, because the amounts are prescribed as continuing liabilities. For directions under section 134 of the repealed Act (r 12(2)): those directions continue as if made under section 111 of the new Act, which means any failure to comply would be an offence under the new Act, with associated penalties. Similarly, proclamations under section 142 or Schedule 2 of the repealed Act continue as if made under corresponding provisions of the new Act (r 12(3)), so breach of a proclamations-imposed requirement would be enforceable under the new Act. Notices under section 187 of the repealed Act (control or quarantining of a plant or animal) continue under the corresponding section of the new Act (r 16), so landholders who violate those notices face the same enforcement consequences as if the notice had been issued under the new Act. The regulations do not specify the quantum of penalties; those are found in the principal Acts. For the continued NRM groups (r 6), the repealed Act’s sections 47 to 62 (except section 61) continue to apply, subject to modifications. Section 61 of the repealed Act likely dealt with enforcement or offence provisions for NRM groups, and its exclusion means that any penalty provisions specific to NRM groups are not carried forward. This may create a gap: if an NRM group fails to perform functions, the only enforcement mechanism may be through the Minister’s power to abolish the group (r 6(1)) or through general provisions of the new Act. The deferral of parts of the Water Register (r 13A) until 1 July 2022 means that statutory requirements for registration of water rights under Schedule 4 of the Act are not yet fully enforceable; however, the old register under the repealed Act continues to operate. There are no specific penalty provisions in the transitional regulations themselves , enforcement relies on the host Acts. Practitioners should check the relevant penalty schedules in the Landscape South Australia Act 2019 and the continuing parts of the repealed Act for applicable fines and imprisonment terms.

The regulations sit at the intersection of several statutory regimes. The primary interaction is with the Landscape South Australia Act 2019, which the regulations are designed to implement. The regulations modify or delay the application of specific sections of the new Act: for example, sections 15(4) and (5) and 16 are deferred until 1 January 2021 (r 4), and Schedule 4 clauses 6(e) and (f), Parts 3 and 4, and clause 15 are deferred until 1 July 2022 (r 13A). This means the new Act’s standard governance and registration procedures are not fully in force during these transitional periods. The regulations also interact with the repealed Natural Resources Management Act 2004. They keep substantial parts of that Act alive through the continuation of NRM groups (sections 47 to 62, except section 61) and the carry-over of regulations, directions, proclamations, determinations, and notices. The repealed Act is not fully extinguished during the transition; it persists in a modified form, which creates a dual legal framework. The Water Resources Act 1997 is directly engaged by r 9, which prescribes amounts outstanding under that Act (levies, penalties, interest, meter rentals, fees) for the purposes of Schedule 5 clause 96(d) of the new Act. This ensures that those debts survive the repeal of the Water Resources Act’s Parts 1 and 8. There is also interaction with the Natural Resources Management (Eastern and Western Mount Lofty Ranges , Prescribed Water Resources) (Exemption of Certain Existing Users) Regulations 2012 and two other reduction regulations (r 12(1)(a), (b), (c)), which continue as if made under the new Act. These regulations , which exempt certain users from water restrictions or reduce entitlements , remain enforceable. The Natural Resources Management (Financial Provisions) Regulations 2005 are also continued: requirements, directions, approvals, specifications or determinations under Part 3 of those regulations continue (r 12(7)). The Natural Resources Management (General) Regulations 2005 are continued as well: directions under regulation 20 continue, with the Chief Officer’s directions deemed to be from the Chief Executive (r 12(8)). The Public Sector Employment Act 2009 is relevant because the Chief Executive must obtain the approval of the Commissioner for Public Sector Employment before determining staff terms (r 14). The Legislation Revision and Publication Act 2002 is indirectly referenced in the legislative history note that regulation 2 was omitted under that Act. The interoperation of these laws can be complex: for example, a direction under the repealed Act (r 12(2)) is deemed to be under the new Act, but the appeal rights or review procedures may differ between the two Acts. Similarly, a bundled water licence treated as a water access entitlement (r 13(1)) may need to be registered on a Water Register that is not yet fully operational (r 13A). The Minister has broad discretion to vary or revoke continued instruments under the new Act, so the practical effect is that old instruments are now subject to modification under new procedures.

The regulations were originally made on 19 December 2019, published in the Gazette (No 248, p4397), and commenced on that date except for regulation 2 which was omitted. The first amendment occurred on 9 April 2020 (Gazette No 41, p722) and made several structural changes. It substituted the heading for Part 2 (Governance), redesignated regulation 5 as regulation 5(1) and inserted a new regulation 5(2) (dealing with presiding members of regional NRM boards), and inserted new regulations 6, 7 and 8 (covering NRM groups, NRM committees, and financial statements/annual reports). The 2020 amendment also inserted new Parts 3 (Financial matters including levies), Part 4 (Water management), and Part 5 (Miscellaneous), which added regulations 9 through 16 as they now appear, except for regulation 13A which came later. This 2020 amendment was substantial: it effectively expanded the regulations from a minimal initial set (only Part 1 and Part 2 with regulations 1-5) to cover the full transitional framework across financial, water, and miscellaneous matters. The second amendment was on 18 November 2021 (Gazette No 172, p4043) and inserted regulation 13A, which deferred certain Water Register provisions until 1 July 2022. This suggests that the Water Register was not ready for full implementation by the original date, requiring a further deferral. The legislative history table also shows that earlier versions are listed at the end, but the source we have does not include those historical versions. The note at the end of the regulations cautions that references to other legislation or instruments or to titles of bodies or offices may be obsolete and are not automatically updated. This is a warning that the transitional regulations may contain references to entities that no longer exist (e.g., NRM boards that have been dissolved under the new Act) or to Acts that have been repealed. The amendment history indicates that the regulations have been adjusted as the transition unfolded, with the most recent version being from 2021. No further amendments are shown in the source, but practitioners should check the current version on the South Australian legislation website for any later changes. The cumulative effect of the amendments is to patch gaps as they became apparent: first by adding governance continuity for groups and committees, then by adding financial and water management provisions, and finally by deferring the Water Register. This piecemeal amendment approach reflects the complexity of transitioning from one statutory regime to another.

The source text of the regulations does not include any reference to litigation, and no cases are cited in the regulations themselves. As transitional subordinate legislation, these regulations are unlikely to have generated a significant body of case law, because they are procedural and temporary in nature. However, there are potential areas where litigation could arise. For instance, the continued application of old provisions to NRM groups (r 6) could lead to disputes about the extent of the groups’ powers and whether the Minister’s power to abolish them is exercised reasonably. A landholder affected by a continued direction under section 134 of the repealed Act (r 12(2)) might challenge whether that direction was properly made under the old Act or whether the transitional provision validly carries it over under the new Act’s section 111. Similarly, the Minister’s power to approve a landscape affecting activities control policy by notice without normal procedures (r 15) could be subject to judicial review on grounds that the policy is not “substantially the same terms” as existing provisions , that phrase could have legal meaning and be litigated. The deferral of certain Water Register provisions (r 13A) might affect registration priorities and could generate property rights disputes if two parties claim the same water access entitlement. The bundled water licence provisions (r 13) treat certain water quantities as water access entitlements, which affects the trading of water rights; a water user whose bundled quantity is now treated as a separate entitlement might dispute the measurement or the ability to trade it separately. The transitional financial year provisions (r 11) allow business plans to be inconsistent with landscape plans; a ratepayer or levy payer might challenge a levy imposed under an extended scheme on the basis that the plan inconsistency makes the levy invalid. In general, transitional provisions are often challenged on the grounds that they impair vested rights or change the applicable law mid-stream. The High Court of Australia has considered transitional provisions in relation to water rights in cases such as ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, though that case did not involve the South Australian legislation. Any litigation under these regulations would likely be in the South Australian Supreme Court or the Environment, Resources and Development Court. As of the text provided, there is no litigation history recorded, but the potential for disputes exists around vested rights, procedural fairness, and the scope of ministerial discretion. The note in the legislative history about obsolete references is itself a potential source of legal uncertainty: if a regulation refers to a body that has been renamed or abolished, a court might find that the reference is ineffective, requiring a purposive interpretation.

Several provisions contain traps for the unwary. First, the multiple definitions of “designated day” (r 6(3), r 7(2), r 12(9), r 13(4)) mean that the timing of transition varies depending on the subject matter. A landowner dealing with a direction under section 134 of the repealed Act must check the designated day under clause 101 of Schedule 5 of the Act, while someone involved with an NRM group must check the designated day under clause 90. These days may not coincide, creating a period where some old rules apply but others do not. Second, the exclusion of section 61 of the repealed Act from the provisions that continue to apply to NRM groups (r 6(2)(b)) may be significant. If section 61 contained enforcement or dispute resolution mechanisms, those are lost, leaving groups operating under the old rules but without the old safety valves. Third, the Minister’s power to approve a landscape affecting activities control policy by notice without normal procedures (r 15) is conditional on the policy being “substantially the same terms” as existing provisions. The term “substantially the same” is vague; a landowner may find that a policy has been changed in ways they do not consider substantially the same, but without the opportunity to object through normal amendment procedures. Fourth, the exemption of water allocation plans from the requirements of section 53(1)(c) and (d) of the Act (r 13(2)) for prescribed water resources under clause 102 means that those plans may not yet have properly defined water access entitlements or allocations, which could affect the reliability of water trading based on bundled licences. A buyer of a bundled water licence treated as an access entitlement might later find that the allocation plan does not support the quantity. Fifth, the deferral of Water Register provisions until 1 July 2022 (r 13A) means that for an extended period, the statutory registration system under the new Act was not fully operational. Anyone dealing with water rights would need to rely on the old register or informal records, increasing the risk of double dealing or loss of priority. Sixth, regulation 14 centralises staff employment terms with the Chief Executive until 1 July 2021, which means regional landscape board general managers had less control over staff during that period , a potential human resources headache if staff performance issues arose. Seventh, the transitional financial year provisions (r 11) permit a board’s annual business plan to be inconsistent with the regional landscape plan. This creates a compliance trap: a board might adopt a business plan that appears to comply with the Act but is actually inconsistent with the plan, and a levy payer could challenge any charges levied under that business plan as being ultra vires. Eighth, the continued effect of proclamations under section 142 or Schedule 2 of the repealed Act (r 12(3)) may include proclamations that have not been reviewed for decades; they carry over under the new Act and may be obsolete or inappropriate, yet they remain enforceable until varied or revoked. Ninth, the landscape affecting activities control policy approved by notice (r 15) may not be subject to the same scrutiny as a policy approved through the Act’s normal processes, potentially affecting property rights without adequate process. Tenth, the note about obsolete references in the legislative history is itself a trap: the regulations may refer to bodies that no longer exist or Acts that have been repealed, and it is up to the practitioner to identify the proper current entity or provision. For example, a reference to a “regional NRM board” in a continued regulation might need to be read as a reference to the relevant regional landscape board, but the regulations do not always provide an explicit substitution.

Compliance with these transitional regulations requires careful mapping of which provisions apply to which entity and at what time. For regional landscape boards, the first compliance step is to identify the designated day for each of the four contexts (governance, water management, bundled water, and NRM groups) and maintain a calendar of when old rules cease. Boards must ensure that initial appointments to the board are made in accordance with the simplified process under r 4 until 1 January 2021, after which sections 15(4), (5) and 16 of the Act apply fully. Boards that were established during the 2019/2020 financial year and held no money should confirm they are not required to prepare an annual report for that year (r 8(3)). Boards that did hold money must ensure the Chief Executive finalises the accounts and prepares the report (r 8(1)). For NRM groups that continue in existence, compliance means they must operate under sections 47 to 62 of the repealed Act (except section 61) but report to the relevant regional landscape board(s). They must also support the objects of the new Act (r 6(2)(b)(iii)). The group should anticipate abolition and cooperate with the Minister regarding vesting of property (r 6(2)(c)). For NRM committees, they are automatically taken to be committees under the new Act (r 7(1)); they should ensure they comply with section 36 of the Act, and be prepared for reconstitution or dissolution by the board. In financial matters, any person who owes amounts under the Water Resources Act 1997 should continue to pay those amounts as the liability continues (r 9). The amounts will be paid into the NRM Fund. Regional NRM boards that have funds under section 120 of the repealed Act may use them for new Act implementation, but should document the expenditure properly to account for the transition (r 10). For water management, holders of bundled water licences should ascertain the designated day for their prescribed water resource under clause 102. Before that day, they may need to work with the relevant authority to have their bundled quantity recognised as a water access entitlement if they wish to transfer it (r 13(1)). Water allocation plan makers should confirm whether the plan relates to a prescribed water resource under clause 102; if so, they do not need to comply with section 53(1)(c) and (d) of the Act until the designated day (r 13(2)). They can also review or amend the plan without addressing those matters (r 13(3)). Anyone dealing with the Water Register should be aware that until 1 July 2022, clauses 6(e) and (f), Parts 3 and 4, and clause 15 of Schedule 4 of the Act did not apply (r 13A); during that period, the old register or alternative recording systems had to be used. For staff, employees under section 35(4) of the Act before 1 July 2021 had their terms determined by the Chief Executive after approval from the Commissioner for Public Sector Employment (r 14). Boards should ensure that staff were engaged on those centrally determined terms. For landscape affecting activities, the Minister may approve a policy by notice without normal procedures only if it is substantially the same as existing provisions (r 15). Boards and affected landholders should monitor the Gazette for such notices, as they will be binding. For control or quarantining of plants or animals, notices under section 187 of the repealed Act continue (r 16); landholders must comply as if the notice was under the new Act. The overarching compliance principle is that old instruments are still live, and new requirements are phased in. A practical tip is to maintain a consolidated document that lists all continued instruments (directions, proclamations, determinations, notices) and their new equivalents under the Act, with the dates on which any deferrals expire. Given the complexity, legal advice is advisable for anyone whose rights or obligations are affected by the transition.