Water Industry (Waterways Land) Regulations 2023

Regulated waterways land is the core physical scope of the Regulations. It is defined by reference to “waterways land” in section 3(1) of the Water Industry Act 1994, but then excludes two categories: land that is a park under the National Parks Act 1975 or managed under several specified sections of that Act (s 19AA, 19A, 19B, 19C, 19D or 19E); and land reserved under the Crown Land (Reserves) Act 1978 and managed under s 18B of that Act by someone other than Parks Victoria, or managed by a committee of management other than Parks Victoria, or vested in a council under s 16. The effect is that land managed by Parks Victoria, national parks, and certain Crown reserves managed by committees of management or councils are carved out. The remaining regulated waterways land is likely to be waterways land managed by waterway managers under the Marine Safety Act 2010 or, where no such manager is declared, the Secretary to the responsible department. This definition creates a patchwork: a member of the public cannot know whether a given stretch of waterway bank is regulated simply by looking; they must determine the management status of the land.

Waterway manager is the key decision-maker. It is defined firstly as a waterway manager under the Marine Safety Act 2010 who has been declared for that land. If no such manager exists, the default is “the Secretary” (presumably the Secretary to the Department of Energy, Environment and Climate Action, or the department administering the Water Industry Act). This dual definition means that on many smaller waterways not covered by a declared waterway manager, the Secretary holds the closure and authority powers directly - a significant concentration of discretion in a single public servant.

Organised activity is defined inclusively: it “includes any boat race, regatta, swimming race, competition, tournament, festival, concert, promotion, fireworks display and any other organised event”. The use of “includes” makes the list illustrative, not exhaustive. The defining element is “organised event” - an activity that is structured, planned, or scheduled, as opposed to casual recreational use. This gives the waterway manager broad latitude to determine what counts. A casual family picnic or a solo canoe trip is unlikely to qualify; a commercial kayak tour, a charity run along the water’s edge, or a community event almost certainly would.

Vessel is imported from the Marine Safety Act 2010 (which includes any watercraft capable of being used as a means of transportation on water). This covers everything from a dinghy to a superyacht, but the mooring prohibition only applies on regulated waterways land, not on the water itself (though mooring structures attached to the land are likely covered).

Penalty unit is fixed by reference to the Sentencing Act 1991 and Monetary Units Act 2004. The value for 2022-23 was $184.92, meaning each offence carries a maximum fine of $1,849.20. That is not a trivial sum for an individual, but modest for a commercial organiser. The penalty is a strict liability offence on its face (no mental element stated), though the general law of criminal responsibility may import a defence of honest and reasonable mistake.

The Regulations directly affect three distinct groups: waterway managers, persons who organise or conduct organised activities on regulated waterways land, and persons who berth or moor vessels on that land. Indirectly, they affect the general public who wish to access waterways land for recreation or transit.

Waterway managers (whether declared marine safety managers or the Secretary) gain the power to close land and to grant or deny written authorities for organised activities. They also bear the procedural burden of erecting signs or barriers, publishing closure determinations in the Government Gazette and online, and taking into account the reasonable needs of the public. This imposes an administrative and cost burden on managers, particularly for short-notice emergency closures where the sign/barrier requirement is immediate. The discretion to grant written authorities is unfettered by criteria, which means a manager could deny an authority without giving reasons, and the applicant has no statutory right of review. This creates uncertainty for event organisers.

Organised activity organisers (commercial tour operators, sporting clubs, community groups, concert promoters, fireworks display companies) must obtain a written authority before taking part in organising or conducting the activity. The prohibition catches not only the lead organiser but also “taking part in organising or conducting” - which could extend to employees, volunteers, or subcontractors. The form and content of the authority are not prescribed; it could be as informal as an email, but the organiser must hold it before the activity starts. Failure to do so is an offence even if the activity proceeds safely and without disruption. There is no exception for activities with no fee or small size. The cost of applying, the time to obtain the authority, and the risk of refusal all act as barriers to private enterprise.

Vessel owners and operators who wish to berth or moor on regulated waterways land must ensure they fall within one of the three exceptions: a lease or licence of that land; a lease or licence of adjacent Crown land; or a sign posted by the waterway manager at that berth. This effectively means that any mooring not explicitly authorised by a water right or posted sign is prohibited. A boater seeking a temporary overnight stop or sheltering from weather would commit an offence unless a sign or lease covers the spot. The exceptions do not include emergency mooring for safety (though such mooring might be saved by a separate marine safety power or necessity defence). The sign requirement is unilateral - the waterway manager posts signs that permit mooring, but there is no obligation to provide any mooring signs; if none are posted, all mooring on that land is unlawful except under lease.

The general public is affected by closures: they may be excluded from areas for organised activities (a sports event, a commercial filming, a fireworks display) and have no right to compensation for lost access. The public’s only statutory protection is that the waterway manager must take into account the “reasonable needs of the public to enter and enjoy that land” before closing - but that is a discretionary consideration, not a guarantee of access. There is no requirement to consult or to minimise the extent or duration of closure.

The Crown exemption (regulation 6) means that government agencies and their contractors (e.g. a contractor maintaining a waterway structure) are not bound by the closure, authority, or mooring prohibitions. This creates a two-tier system: a private tour organiser needs a permit; a government contractor performing the same activity does not.

Duty of waterway manager when closing land (regulation 7). Before closing, the waterway manager must take into account the reasonable needs of the public to enter and enjoy the land. This is a procedural duty, not a substantive right for the public. After deciding, the manager must specify the closure period, erect signs or barriers, publish in the Government Gazette and on the manager’s website. The duty to erect signs or barriers is absolute - it is not contingent on what is reasonable in an emergency. This could be impracticable for a sudden flood or rescue operation, but the regulation does not provide any relaxation in practice.

Right of waterway manager to close and to grant authorities. The manager has discretion to close land if they “believe it is necessary” for an organised activity or in an emergency. The belief standard is subjective, not objective; a manager who honestly holds the belief may close even if the belief is unreasonable. For organised activities, there is no requirement that the organiser request the closure; the manager can initiate it on their own assessment. The manager may also issue written authorities for organising or conducting an organised activity, with no statutory criteria, time limits, or appeal rights.

Duty of organisers. A person must not take part in organising or conducting an organised activity on regulated waterways land without a written authority from the waterway manager. The duty applies from the moment of organising, not just on the day. The organiser must hold the authority; there is no provision for a pending application or retrospective approval.

Duty of boaters. A person must not berth or moor a vessel on regulated waterways land except as authorised by a lease or licence of that land, a lease or licence of adjacent Crown land, or a sign posted by the waterway manager. The duty is absolute: no exception for emergency, no de minimis exemption for a few minutes, no grandfathering of existing moorings that are not under lease. A boater who moors at an unmarked spot commits an offence even if the land is not signposted as “no mooring”.

Public right of entry. The public has no statutory right to enter regulated waterways land; they are simply not prohibited unless a closure is in place. But even without closure, the mooring prohibition restricts a common use of such land. The “reasonable needs of the public” consideration only applies at the closure decision stage, not to the granting of authorities. The public has no standing to challenge a closure or authority decision under the Regulations themselves; any challenge would have to be by way of judicial review of administrative action, which is costly and uncertain.

No duty to provide reasons or review. Nowhere in the Regulations is a waterway manager required to provide reasons for refusing an authority, or to establish a public register of closures or authorities. The sole publication duty is for closures (Gazette and website). The lack of transparency creates risk for organisers and boaters who cannot readily discover whether a particular area is subject to a current authority or closure.

Each of the three prohibitions (enter closed land, organise/conduct organised activity without authority, berth or moor vessel without authorisation) is an offence punishable by a fine of up to 10 penalty units. With the 2022-23 penalty unit value of $184.92, the maximum fine is $1,849.20 per offence. The regulations do not specify a daily penalty for continuing offences, so each entry or mooring would be a single act; if a vessel remains moored for days, it is likely a single offence at the time of mooring, though a waterway manager could argue each day is a fresh breach. The regulations also do not provide for infringement notices (on-the-spot fines) - enforcement would be by prosecution in the Magistrates’ Court, a more cumbersome process.

Enforcement responsibility lies with the waterway manager and, presumably, authorised officers under the Water Industry Act 1994 or the Marine Safety Act 2010. Police and authorised officers from other agencies may also have powers to issue penalty notices or summons. The Crown exemption (regulation 6) removes from the scope of offences any person acting as a servant or agent of the Crown, or under a Crown contract, or acting with the permission or direction of such a person, or authorised officers. This is a wide carve-out: a contractor to a government department performing an organised activity (e.g. a filming company hired by a government agency) would be exempt, while a private filming company on the same land would require an authority. Similarly, a mooring by a Crown agent is lawful even without a lease or sign. The exemption does not require the Crown agent to obtain internal permission; it simply exempts them from liability.

The penalty level (10 penalty units) is moderate. It is not trivial for an individual, but it is low enough that a commercial operator might treat it as a cost of doing business if enforcement is lax. The absence of a licensing fee or cost recovery provision means the waterway manager bears the administrative cost of processing authorities and closures, funded from general revenue. There is no mechanism for the manager to recover costs from organisers - the authority is free, but the organiser may face costly delays.

The regulations do not create a civil liability for damage or nuisance; they are purely criminal. An organiser who proceeds without authority is liable to prosecution but not automatically to a civil suit from the waterway manager or other users for trespass, though such claims could exist under general law independently.

Water Industry Act 1994 is the parent Act. The Regulations are made under sections 149 and 184. Section 149 deals with regulations generally; section 184 specifically authorises regulations about waterways land. The definition of “waterways land” in section 3(1) of the Act is imported but then narrowed by the exclusion of certain parks and reserves. Any amendment to the parent Act’s definition of waterways land would automatically affect the scope of the Regulations.

Marine Safety Act 2010 is cross-referenced for the definition of “vessel” and for the primary definition of “waterway manager”. A person declared as a waterway manager under the Marine Safety Act automatically becomes the waterway manager for the Regulations for that land, unless that land falls within the excluded categories. This creates a layer of regulatory integration: the same manager who controls vessel traffic and marine safety under the Marine Safety Act also controls land-side access and activities under these Regulations. A manager closing the water for a regatta under marine safety powers may also close the adjacent regulated waterways land under these Regulations. However, the closure procedures under each regime differ (this regulation requires Gazettal and signage; the Marine Safety Act may have different requirements), creating potential duplication or conflict.

National Parks Act 1975 and Crown Land (Reserves) Act 1978 are used to carve out land from the definition of regulated waterways land. Land that is a national park or managed by Parks Victoria is not regulated waterways land under these Regulations, meaning the closure and authority powers do not apply on that land. Instead, activities on that land would be governed by national parks regulations or reserve management plans. This avoids overlap but also means a waterway that runs through a national park may have different rules on different banks - one side regulated, the other not.

Sentencing Act 1991 and Monetary Units Act 2004 set the penalty unit calculation. The value of a penalty unit is fixed annually by the Treasurer and published. The Regulations rely on this external indexation, so the fine amount automatically increases over time without amending the regulations. This is efficient but creates a creeping increase in the maximum penalty that may not reflect the specific gravity of these offences.

Subordinate Legislation Act 1994 provides for the automatic sunset of statutory rules after 10 years. The Regulations will expire on 21 February 2033 unless remade. This is a standard mechanism that forces periodic review. The 2013 Regulations were revoked by these Regulations, not allowed to sunset.

General law of trespass and nuisance is not displaced. The Regulations do not grant a right to enter land; they merely provide a criminal penalty for certain acts on land that is otherwise publicly accessible. The underlying property law - leases, licences, Crown land rights - remains. A person who moors under a sign posted by the waterway manager is protected from prosecution but may still be subject to a trespass claim from the landowner (if the manager is not the owner). The regulations do not clarify that the waterway manager has authority to grant rights of mooring on land they do not own.

The Regulations are version 001 as at 25 February 2023. They are a new instrument that revoked the Water Industry (Waterways Land) Regulations 2013 (S.R. No. 25/2013). The endnotes confirm there have been no amendments by subsequent statutory rules, subordinate instruments, or Acts. The Regulations are recently made (21 February 2023) and came into operation on 25 February 2023. The 2013 Regulations appear to have been substantially similar in structure, covering closures, organised activities, and mooring. The explanatory details note only that the revocation provision refers to S.R. No. 25/2013. No table of amendments exists because there are none. The instrument is in its original form. The sunset date is 21 February 2033.

The 2013 Regulations were not provided, so we cannot compare specific changes. However, the current instrument uses the same penalty level (10 penalty units) and similar definitions. The drafting style reflects standard Victorian subordinate legislation practice, including incorporation of the Interpretation of Legislation Act 1984 style changes and legislative item placement rules.

The Regulations are too recent to have generated reported litigation. The endnotes do not mention any court decisions. The parent Act (Water Industry Act 1994) has been litigated in various contexts, but not specifically on these regulations. The 2013 Regulations may have been challenged, but no information is available in the source. Given that the Regulations create discretionary powers with no internal review mechanism, the most likely source of future litigation would be judicial review of a closure decision or refusal of an authority. Grounds could include failure to take into account the reasonable needs of the public (a mandatory relevant consideration), unreasonableness, or procedural unfairness if the decision affects a person’s livelihood. The sheer breadth of the defined “organised activity” and the waterway manager’s belief standard make successful challenge difficult: the manager need only believe closure necessary, and the consideration of public needs is subjective. A court would likely defer to the manager on resource allocation and judgment.

The mooring prohibition could be challenged if a waterway manager posts signs purportedly authorising mooring on land that the manager does not own or have an interest in; a landowner could argue that the manager lacks power to grant a right of mooring. However, the parent Act may grant sufficient management powers. Also, a boater prosecuted for mooring without a sign might argue necessity (emergency) or that the lease exception covers them because they hold a lease for a nearby jetty that implicitly extends to the waterway land. The source does not define the scope of the lease exception.

There is no statutory right of appeal under the Regulations. Any challenge would be by common law judicial review, which is expensive and has short limitation periods (usually 60 days for a decision). This asymmetry favours the waterway manager and disadvantages individuals and small businesses.

Crown exemption is extremely broad. Regulation 6 exempts not just the Crown but any servant or agent of the Crown, and anyone acting under a Crown contract, under the direction of, or with the permission of, a Crown servant or agent. This means a private company contracted to a government agency to, say, run a tourism promotion event on regulated waterways land can operate without an authority, while a competitor without a government contract cannot. It also means that a volunteer assisting a Crown servant (e.g., a local council employee) may be exempt. The exemption is not limited to acts performed for the Crown; it appears to cover any act done while under that relationship. This could be used to circumvent the regulatory intent: a private organiser could seek “permission” from a Crown servant (e.g., a local council ranger) and then claim exemption.

No criteria for issuing an authority. The waterway manager has an unfettered discretion to grant or deny a written authority. There is no requirement to consider safety, environmental impact, competition with other users, or public benefit. This creates legal uncertainty for organisers who cannot predict whether their event will be allowed. It also invites rent-seeking or favouritism if the same manager consistently grants authorities to some operators and denies others. There is no right to reasons if refused.

No appeal or review mechanism. An organiser refused an authority has no internal review or external merits review (e.g., VCAT). The only recourse is judicial review, which is costly and uncertain. A boater who disputes a sign interpretation or a closure has no dedicated appeal body.

Sign-based mooring is unilateral. The waterway manager may post signs authorising mooring at particular berths, but is under no duty to do so. If no signs are posted, all mooring is prohibited (except under lease). The manager could post signs that only allow mooring by a single commercial operator, effectively granting a monopoly. There is no requirement for the sign to be physically present at the berth - it could be posted on a manager’s internet site that is not obvious to boaters approaching by water. The regulation does not require that the sign be legible from the water or that it specify the terms of use.

Temporary mooring not exempt. The only exceptions are leases, licences, or signs. There is no exception for loading or unloading, picking up or dropping off passengers, emergency repairs, sheltering from severe weather, or allowing a crew to rest. A boat that stops for 30 seconds to let someone off at an unmarked bank commits an offence. The absence of a safety exception could conflict with duties under marine safety laws, but that does not create a defence under these regulations.

Definition of organised activity includes “any other organised event”. This catch-all could be interpreted broadly. A small group of friends meeting for a picnic could be considered an “organised event” if someone took a coordinating role. The waterway manager has discretion, but the risk of prosecution hangs over informal gatherings.

Closure can be for “any” organised activity. The manager does not need to assess whether the activity requires exclusivity. A manager could close a popular stretch of waterway for a low-key event that could have accommodated public access, as long as they believe closure is necessary (subjective). The only constraint is taking into account public needs - a weak constraint.

No requirement to notify directly affected persons. A closure determination must be published in the Government Gazette and on the manager’s website, but there is no requirement to give direct notice to regular users, nearby landowners, or lessees. Someone who does not check the Gazette or the specific website may unknowingly commit an offence.

Penalty units increase annually. The nominal fine rises automatically. A business that budgets for compliance needs to track the annual penalty unit value, which may change significantly.

Lease/licence exception may require strict compliance. The exception in regulation 9(2)(a) and (b) requires that the vessel be berthed or moored “in accordance with the terms and conditions” of the lease or licence. If the lease allows mooring only for certain durations or vessel types, a breach of those terms (e.g., overstaying) not only breaches the lease but also removes the exception, making the mooring an offence.

For a person intending to organise or conduct an organised activity on regulated waterways land:

• Identify whether the land is regulated waterways land. Check if it is within a national park or a reserve managed by a committee of management or council (excluded). If unsure, assume it is regulated unless you have written confirmation from the waterway manager.
• Determine who the waterway manager is. If a waterway manager is declared under the Marine Safety Act 2010 for that water, that is the manager. Otherwise, the Secretary (likely the Department of Energy, Environment and Climate Action) is the manager.
• Apply for a written authority. The application process is not prescribed in the Regulations, so contact the manager directly. You should do this well in advance; there is no statutory processing time, so expect delays. Confirm the authority in writing before proceeding.
• If the activity requires closure of the land (e.g., a race across a waterway), the manager will need to make a separate closure determination under regulation 7. You may need to request this and bear the costs of signs and publication, though the Regulations do not require you to pay.
• Keep a copy of the authority on site during the activity. Ensure all volunteers, staff, and participants are aware that the activity is covered only by that authority.
• If the Crown exemption applies (you are a servant or agent of the Crown, or acting under a Crown contract with the Crown or its agent), you do not need an authority - but verify that you genuinely meet the conditions. If in doubt, seek legal advice.

For a person wanting to berth or moor a vessel on regulated waterways land:

• First, check whether the land is regulated. If it is a national park or a reserve managed by a committee of management (other than Parks Victoria) or a council, it is likely excluded and the Regulations do not apply (but other laws may).
• If the land is regulated, you must have either:
  • a lease or licence that expressly covers that regulated waterways land and permits mooring; or
  • a lease or licence of adjacent Crown land (not the regulated waterways land itself) that permits mooring on that land; or
  • a sign posted at that berth by the waterway manager authorising mooring.
• If you have a lease or licence, comply strictly with its terms (duration, type of vessel, location). Any breach removes the exception.
• If you rely on a sign, note its location, terms, and any restrictions. The sign may only allow mooring for certain hours or vessel sizes. Do not moor elsewhere on the same manager’s land unless signposted.
• If no sign and no lease, do not moor. Find an alternative mooring location that is not regulated waterways land, or secure a lease or sign.
• For emergency mooring (safety of life or vessel), there is no exception in the Regulations. In practice, you should seek permission from the waterway manager immediately and document the emergency. A court might accept the common law defence of necessity, but that is risky.

For a waterway manager:

• When considering closure, document that you have taken into account the public’s reasonable needs. Record the reasons for the closure period and extent. Ensure the words “reasonable needs of the public” appear in your decision notes.
• For emergency closures, still erect signs or barriers as soon as practicable. There is no relaxation of the requirement to erect signs or barriers.
• Publish the closure determination in the Government Gazette and on your website. Retain evidence of publication.
• When issuing written authorities, consider developing a policy or guidelines to ensure consistent, non-discriminatory decisions. While not required, such a policy would reduce legal risk. Issue the authority in writing, specify the date, location, and scope of the activity, and consider imposing conditions (e.g., insurance, safety marshals).
• For mooring signs, ensure they are physically posted at the berth, legible from the water, and clearly state what is permitted (e.g., “Public mooring - maximum 2 hours”). Keep a record of the sign location and content. Review signs periodically.

For the general public:

• Obey closure signs. Entering closed land is an offence regardless of whether you knew about the closure. If you see no signs but the land is closed (published online), you could still be prosecuted if the closure was properly published - unrealistic as a practical matter, but legally possible. When in doubt, check the waterway manager’s website for closures.
• Do not moor your vessel anywhere on regulated waterways land unless you see a sign authorising mooring or hold a lease.
• If you are prevented from using the land by a closure or authority, you have no statutory right to compensation. You can contact the waterway manager to express concerns, but there is no obligation to reconsider.

Overall, the Regulations are straightforward in structure but contain broad discretions and narrow exceptions. Compliance is largely a matter of dealing with the waterway manager on their terms.