Water Act 1989

The Act applies broadly across Victoria. Those most directly affected include:

• Irrigators and agriculture: Anyone taking water for irrigation in a declared water system operates under water shares and water allocations, with seasonal determinations affecting how much water is available each year. Water-use licences (Part 4B) and water-use registrations regulate how water taken under a share may actually be applied to land.
• Water corporations and their customers: All residential and commercial water users in Victoria are served by water corporations constituted or restructured under Part 6, whose powers, duties, charging regimes and corporate governance are governed by the Act.
• Generation companies: Hydroelectric generators hold bulk entitlements under Division 1 of Part 4.
• Victorian Environmental Water Holder: The Water Holder (established under section 33DB) holds environmental entitlements and manages water for environmental outcomes across Victoria.
• Land developers and planners: Part 5 governs works including bores, dams and channels. Dam approvals, bore licences, and construction permits under Part 5 affect any development involving water infrastructure. Sections 75A, 76A, 78, 79, 80 and 80AA contain substantive requirements and offences relating to the construction and operation of works, and these provisions bind the Crown (section 5(d)).
• Traditional owners: Section 8A confers water rights on members of traditional owner groups that have agreements under Part 6 of the Traditional Owner Settlement Act 2010. Consultation requirements with specified Aboriginal parties arise in various contexts (sections 22E, 22M, 22R, 31, 190).
• Catchment Management Authorities: These bodies are Authorities for waterway management purposes and have functions under Part 10 governing waterway management districts.
• Property owners near waterways: Part 10 and Part 12 affect landowners adjacent to waterways regarding flood areas, building lines, and access for drainage and water supply purposes.

No unauthorised taking of water. Taking, using or diverting water from a waterway or groundwater requires authorisation. For declared water systems, this means holding a water share or acting under a bulk entitlement. For non-declared systems or other groundwater, a licence under section 51 is required for purposes beyond domestic and stock use. Section 63 creates the basic offence of taking water without authorisation.

Metering and accounting. Bulk entitlement holders must install, maintain and operate metering equipment as specified in their entitlement (section 43(g) and (h)). Water corporations must carry out accounting and reporting as required by the Act and their entitlements.

Water-use licences and registrations. Part 4B requires persons who use water taken under a water share or bulk entitlement to irrigate land to hold a water-use licence (Division 2) or water-use registration (Division 9), subject to the conditions set under those Divisions. Standard water-use conditions are determined by the Minister under Division 4.

Environmental obligations for works. Those constructing dams, bores, channels and other works must comply with Part 5 requirements, including licences under section 51 (bore licences), requirements under sections 75A and 76A for construction or operation of certain works, and dam safety requirements. Section 80 governs powers to give directions regarding private dams.

Corporate governance obligations. Water corporations must operate under approved corporate plans and express Ministerial directions (section 1(l) purpose). Part 6B sets out duties of water corporations. Part 13 governs finance, accountability and the annual reporting obligations of water corporations.

By-laws. Water corporations may make by-laws under section 160 (for waterway management) and section 171 (for water supply) subject to the procedural requirements in Part 13B.

Permanent water saving plans. Part 8 requires water corporations to prepare, adopt and implement permanent water saving plans regulating efficient use of water by customers. Section 170F makes it an offence to contravene a permanent water saving plan.

The Minister holds extensive powers including:

• Declaring water systems (section 6A), zones within systems (section 6B), rationing areas (section 6C), and water supply protection areas (section 27).
• Granting bulk entitlements by Order (section 34A) and amending or revoking them (section 44 and following).
• Granting environmental entitlements to the Water Holder.
• Determining permissible consumptive volumes for water systems by Order under section 22A.
• Making seasonal determinations for water systems (Part 4AB, section 64GB), or delegating that function.
• Giving directions to water corporations under Part 7 and the general powers provisions.
• Appointing storage managers (Part 6C), resource managers and environmental managers (section 43A).
• Approving reconfiguration plans under Part 7A.
• Giving general place of take approvals (section 64FC) and external place of take approvals (section 64FZS) regulating where water may be physically taken.

Water corporations hold powers to make by-laws, fix charges, declare building lines and flood fringe areas (section 203), set serviced property (section 144), and take other actions within their districts. Authorised water officers appointed under section 291A may inspect, investigate, require information, and serve infringement notices.

The Victorian Civil and Administrative Tribunal (VCAT) has jurisdiction to review a wide range of Ministerial and Authority decisions, including decisions on water supply protection areas, allocation of water rights on subdivision, lake and lagoon declarations (section 4), access disputes (section 235) and cost decisions (section 243).

Part 14 contains the Act's enforcement framework. The most serious offences involve interference with water infrastructure and wrongful taking of water:

• Section 288 (offences as to Authority's property): Knowingly destroying, damaging, removing, altering or interfering with an Authority's property in a way that results in land, works or water being seriously damaged, or another person suffering substantial economic loss, carries a penalty of 10 years imprisonment or 1,200 penalty units for an individual, or 6,000 penalty units for a body corporate. The reckless equivalent (section 288(2)) carries 5 years imprisonment or 600 penalty units (individual) or 3,000 penalty units (body corporate). The strict liability version (section 288(3)) carries 240 penalty units (individual) or 1,200 penalty units (body corporate).

• Section 289 (wrongful taking of water): Knowingly taking, using or diverting an Authority's water without consent or authorisation, with the result that land, works or water are seriously damaged or another person suffers substantial economic loss, carries 10 years imprisonment or 1,200 penalty units (individual) or 6,000 penalty units (body corporate). Reckless (section 289(2)) and strict liability (section 289(3)) versions carry correspondingly reduced penalties.

• Section 289B (interference with flow): Parallel offences for knowingly, recklessly or otherwise interfering with the flow of water in any waterway, aquifer or Authority works without authorisation, with the same penalty scale as sections 288 and 289.

Section 295B lists indictable offences under the Act, covering the aggravated forms of sections 288, 289, 289B and other provisions including sections 33E, 63, 64FB, 64FZB, 64FZI, 75A, 76A, 145A, 169A, 194, 195 and 208.

Infringement notices may be issued by authorised water officers for certain lower-level contraventions of sections 289(3) and 289B(3) under section 289C, subject to volume thresholds (up to 10 megalitres unauthorised take, or up to 20% of authorised amount up to 10 megalitres overage).

Bodies corporate face additional liability under section 297, which extends criminal liability to officers of a body corporate who fail to exercise due diligence to prevent the corporation committing specified offences.

Prosecutions may be brought by police, authorised Ministerial officers, Authority officers, or authorised water officers for their particular domains (section 296).

Bulk entitlement applications proceed through advertisement and public submissions (section 38), possible panel appointment and report (section 39), Ministerial consideration of specified factors (section 40), and grant by Order published in the Government Gazette (section 34A). Applications for groundwater in proposed water supply protection areas must be deferred until the protection area is declared or the proposal lapses (section 41).

Lake and lagoon declarations under section 4 require public notice, a 60-day submission period, and Ministerial recommendation to the Governor in Council before an Order is published in the Government Gazette. VCAT review is available within 28 days of the decision.

Access to land for drainage, water supply or salinity mitigation under Part 12 begins with a notice of intent under section 234(1). If agreement is not reached within one month, the seeking party may apply to the Minister under section 235 for an Authority to decide the issue. Rights of access must be registered under the Transfer of Land Act 1958 to have effect (section 236(1)). VCAT review of access decisions is available within 28 days.

Water share dealings (transfers, limited term transfers, assignments) must be registered in the Victorian water register under Part 5A. The register is maintained by the Registrar appointed under that Part, with recording responsibilities split between the Registrar (Division 3 records), the Minister (Division 4 records), and Authorities (Division 5 records).

Emergency management plans for water supply and sewerage (sections 159A, 159B, 159D) require preparation by water corporations and periodic review.

By-laws made under Part 13B require the procedural steps in that Part before taking effect.

The Act is expressly subordinate to the Murray-Darling Basin Agreement (through the Murray-Darling Basin Act 1993) and the Groundwater (Border Agreement) Act 1985 (section 6). Any power or discretion under the Water Act 1989 must be construed subject to these agreements, and a purported exercise inconsistent with them is of no effect (section 6(2)).

The Act cross-references extensively with:

• Commonwealth Water Act 2007: The Basin Plan and Basin water resource plans are defined by reference to the Commonwealth Act. The Water Holder's responsibilities in relation to northern water resources (the Basin) are structured around Commonwealth requirements. Approved interstate rights under section 33AG are treated as water shares.
• Murray-Darling Basin Act 1993: The Murray-Darling Basin Agreement and its governance requirements constrain Ministerial and Authority discretion.
• Catchment and Land Protection Act 1994: Catchment Management Authorities are authorities under both Acts. The environment Minister for purposes of Part 3 context is the Minister administering Part 4 of that Act.
• Traditional Owner Settlement Act 2010: Section 5A addresses the relationship between consultation obligations under the Water Act and rights under land use activity agreements. Section 8A confers water rights on traditional owner group members.
• Native Title Act 1993 (Cth): Definitions of native title holder and determination of native title are incorporated into the Water Act through the definitions in section 3(1).
• Planning and Environment Act 1987: References to declared areas, Statements of Planning Policy, and planning schemes appear throughout, particularly in connection with works approvals and declared areas.
• Environment Protection Act 2017: Orders under section 156 of that Act, and environment reference standards, are factors the Minister must consider in assessing bulk entitlement applications (section 40(1)(jaa)).
• Heritage Rivers Act 1992: Heritage river areas and natural catchment areas are a consideration in bulk entitlement applications (section 40(1)(ja)).
• Essential Services Commission Act 2001: The Essential Services Commission (defined in section 3) has a role in regulating certain water corporation pricing and services.
• Victorian Civil and Administrative Tribunal Act 1998: VCAT is the review body for a wide range of decisions, and the Act specifies 28-day review periods in numerous sections.
• Transfer of Land Act 1958: Rights of access created under Part 12 must be registered in the land register.
• Infringements Act 2006: Water infringement offences for which infringement notices are issued operate as infringement offences under that Act (section 295A(2)).
• Victoria Police Act 2013: Definition of police officer is imported by reference.
• Local Government Act 2020: Definitions of Council and municipal district are imported.
• Yarra River Protection (Wilip-gin Birrarung murron) Act 2017: The Yarra protection principles, Yarra River land, Yarra Strategic Plan and Yarra Strategic Plan area are defined by reference to that Act.
• Great Ocean Road and Environs Protection Act 2020: Various definitions are imported for applications affecting the Great Ocean Road region.

The water share is not the water itself. A water share gives a right to a proportionate allocation in a declared water system. The actual volume available each year depends on seasonal determinations made by the Minister. In dry years, allocations can be reduced substantially. Buyers of water shares need to understand that the share is a perpetual right to a proportion of available water, not a guaranteed volume.

The environmental water reserve takes priority. Section 7(4) requires every water right, licence or approval to be granted with regard to the need to maintain the environmental water reserve. This acts as a brake on new entitlements even where demand exists.

Murray-Darling Basin Agreement prevails. Section 6 makes clear that Basin Agreement requirements override Victorian law. In the Murray-Darling system, Commonwealth water policy and Basin Plan requirements constrain what Victoria can do, even where the state Act appears to confer a broader discretion.

Crown is bound, but selectively. Section 5 lists the specific provisions that bind the Crown. Those not listed do not bind the Crown, so parties dealing with the Crown on water matters need to check which provisions actually apply.

Domestic and stock use rights do not extend to intensive commercial use. The section 8 right is expressly limited to household purposes, stock watering, limited fire prevention use and kitchen gardens. Dairies, piggeries, feed lots, poultry and other intensive or commercial uses fall outside the right and require a licence or other authorisation.

Infringement notice thresholds for water theft. Under section 289C, infringement notices can only be issued for taking up to 10 megalitres without authorisation, or up to 20% of the authorised amount and no more than 10 megalitres in excess. Larger unauthorised takes must go through court proceedings.

Private dam escape liability is preserved. Section 18 preserves the common law liability of a private dam owner for damage caused by escape of water, despite section 17's general protection from civil liability. The section 17 protection is for Authorities exercising statutory functions, not private dam owners.

Levee emergency exception. Section 20(2B) provides that in determining whether a flow of water caused by levee construction, removal or alteration during a state of emergency is reasonable, greatest weight must be attached to whether the action occurred in response to an emergency under the Emergency Management Act 2013. This exception modifies the ordinary proportionality test for flow liability.

Irrigator buying a water share in the Goulburn system. The Goulburn is a declared water system. The buyer acquires a water share under Part 3A, which is recorded in the Victorian water register. The share entitles the holder to a proportion of the seasonal determination made for the system. If the seasonal determination for that year is 80% (meaning 80% of nominal shares are filled), the holder gets 80% of the nominal volume of the share as a water allocation. The allocation can be used directly or assigned to another person under section 33U or 33V. The buyer also needs a water-use licence under Part 4B if the water is to be applied to land for irrigation.

A water corporation needing to build a new pipeline. The corporation applies for works authorisation under Part 5 as relevant to its functions. It must comply with by-law procedures and any conditions imposed. If land access for pipeline installation is needed over a third party's land, the corporation must follow Part 12 access procedures: give notice under section 234, try to reach agreement, and if agreement fails within a month, apply to the Minister for an Authority to decide. Any right of access must be registered under the Transfer of Land Act 1958 before it takes effect.

Allegation of water theft from an irrigation channel. If a person is suspected of taking more than 10 megalitres from an irrigation channel without authorisation, an authorised water officer cannot simply issue an infringement notice. The case must be referred for prosecution under section 289 as a court matter. The evidentiary provisions in section 289A assist the prosecution: evidence that water has been taken to or used on land held by the person under an authorisation is, absent contrary evidence, proof the person took or diverted the water.

Traditional owner water rights. Where a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, section 8A confers on group members a right to take and use water on the agreement land, provided the water is taken from a place accessible under section 8(1). This is a private right that co-exists with but is distinct from the general domestic and stock use right under section 8.

Water corporation facing a natural disaster. If Melbourne Water Corporation's infrastructure is damaged in a flood or emergency, the corporation's obligations under the emergency management plan provisions in sections 159A to 159D define how it must respond and restore services. Planning for such events must be built into the plan in advance, and the plan itself must go through the procedural steps set out in those sections.