Groundwater (Border Agreement) Act 1985

s. 11

The Minister shall cause any annual report submitted to the Minister under the Agreement to be laid before the Legislative Council and the Legislative Assembly before the expiration of the fourteenth sitting day of the Legislative Council or the Legislative Assembly, as the case may be, after the annual report has been received by the Minister.

Ss 12, 13 repealed by No. 81/1989 s. 3(Sch.

item 20.2).

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Sch. (Heading) substituted as Sch. 1 (Heading) by No. 79/2005 s. 6.

SCHEDULE 1

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S. 5

Border Groundwaters Agreement

AGREEMENT made the 15th day of October One thousand nine hundred and eighty-five between—

PREMIER of the State of South Australia for and on behalf of that State of the first part and

PREMIER of the State of Victoria for and on behalf of that State of the second part.

WHEREAS it is desirable to make provision to protect the groundwater resources adjacent to the border between the State of South Australia and the State of Victoria and to provide for the co-operative management and equitable sharing of those resources and to guard against the undue depletion or degradation thereof:

NOW IT IS HEREBY AGREED as follows—

PART I.—INTERPRETATION

Definitions.

1. In this Agreement save where inconsistent with the context—

"Aquifer" means a geological structure or formation or an artificial land fill permeated or capable of being permeated permanently or intermittently with water.

"Bore" with respect to South Australia, means any well as defined by section 5 of the Water Resources Act 1976 and with respect to Victoria, means any bore as defined by section 2 of the Groundwater Act 1969, but in neither case includes any well or bore from which water is extracted or proposed to be extracted for one or more of the following purposes and for no other purposes:

(a) household purposes;

(b) watering animals kept for domestic and stock purposes; or

(c) the irrigation of a garden not exceeding 0⋅4 hectares in extent used solely in connexion with a dwelling and from which no produce is sold.

"Committee" means the Review Committee constituted under clause 6.

"Contracting Government" means the Government of the State of South Australia or the Government of the State of Victoria.

"Designated Area" means the area comprising part of the State of South Australia and part of the State of Victoria as specified in the First Schedule.

"Extraction" in relation to any bore includes withdrawing, taking, using or permitting the withdrawing, taking or using of water from that bore.

"Granting authority" means—

(a) in the case of South Australia, the Minister administering the Water Resources Act 1976; and

(b) in the case of Victoria—

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as the case requires.

"Groundwater" with respect to South Australia means any underground waters as defined by section 5 of the Water Resources Act 1976 and with respect to Victoria means any groundwater as defined by section 2 of the Groundwater Act 1969.

"Member" means a member of the Committee.

"Minister" with respect to South Australia means the Minister administering the Water Resources Act 1976 and with respect to Victoria means the Minister administering Part V of the Groundwater Act 1969.

"Permissible annual volume" means the permissible annual volume of extraction specified for each zone in the Second Schedule, or in relation to a particular zone, such other volume as has been determined by the Committee under clause 28 (2).

"Permissible distance from the border between the State of South Australia and the State of Victoria" means a distance of one kilometre from that border, or in relation to a particular zone, such other distance as has been determined by the Committee under clause 28 (2).

"Permissible level of salinity" means such level of salinity as results in electro-conductivity not in excess of so many microsiemens per centimetre at twenty-five degrees Celsius as may be agreed upon by the Minister of each Contracting Government for any zone pursuant to clause 28 (6), or in relation to a particular zone, such other level as has been agreed upon by the Minister of each Contracting Government under clause 28 (4).

"Permissible rate of potentiometric surface lowering" means an average annual rate of potentiometric surface lowering of 0⋅05 metres, or in relation to a particular zone, such other rate as has been agreed upon by the Minister of each Contracting Government under clause 28 (4).

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"Permit" means:

(a) any licence provided for in section 43 of the South Australian Water Resources Act 1976;

(b) any permit provided for in section 49 of the South Australian Water Resources Act 1976;

(c) any permit provided for in Part III of the Victorian Groundwater Act 1969;

(d) any licence provided for in section 51 of the Victorian Groundwater Act 1969.

"Schedule" means a schedule to this Agreement.

"Zone" means any zone as specified in the First Schedule.

Interpretation.

2. (1) Unless the contrary intention appears, a reference in this Agreement to any Act shall be read as including a reference to any Act amending, or in substitution for, that Act.

PART II.—APPROVAL AND ENFORCEMENT

Approval.

3. This Agreement, other than clause 4, is subject to approval by the Parliaments of the States of South Australia and Victoria; and shall come into effect when so approved.

Submission to Parliament.

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4. The Contracting Governments hereby agree to submit this Agreement for approval to the respective Parliaments of the said States as soon as practicable after the date of this Agreement.

Parties to provide for enforcement of Agreement and Acts.

5. Each of the Contracting Governments so far as its jurisdiction extends and so far as it may be necessary shall provide for or secure the execution and enforcement of the provisions of this Agreement and of any Acts approving it.

PART III.—THE REVIEW COMMITTEE

Constitution.

6. There shall be a Review Committee for the purposes of this Agreement, which shall have such status and such powers and duties and enjoy such privileges and immunities as may be conferred upon it by this Agreement and any Acts approving it.

7. The Committee shall consist of four members.

Appointment of members and deputy members.

8. Two members and one deputy member shall be appointed by the Minister of each Contracting Government.

Term of appointment.

9. Each member and deputy member shall be appointed for a term not exceeding five years but shall be eligible for re-appointment.

When deputy member may act.

10. Whenever—

(a) a member is—

(b) there is a vacancy in the office of a member for either State—

the deputy member for the same State shall act as a member for that State and while so acting, shall have all the powers and perform all the duties of a member.

Powers of members.

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11. Subject to the provisions of this Agreement the members shall have equal powers.

Remuneration of members and deputy members.

12. Each member or deputy member shall be paid by the Contracting Government by whose Minister that member or deputy member has been appointed such remuneration, allowance or expenses (if any) as shall be determined by or under any applicable law or, in the absence of such law, by that Contracting Government.

Removal from office.

13. A member or deputy member may at any time be removed from office by the Minister of the State for which that member or deputy member was appointed.

Resignation.

14. A member or a deputy member may at any time tender resignation of his or her appointment by writing signed by that member or deputy member addressed to the Minister of the State for which that member or deputy member was appointed and such resignation shall take effect upon, and only upon, acceptance thereof by that Minister.

Vacancies.

15. Whenever a vacancy occurs in the office of a member or deputy member, the Minister of the State for which the member or deputy member whose office has become vacant was appointed shall appoint a person to the vacant office.

Validity of proceedings.

16. No act, proceeding or determination of the Committee shall be invalid on the ground only of any defect in the appointment of any member or deputy member.

Meetings of the Review Committee.

17. (1) The members may meet together for the transaction of the Committee's business and may adjourn any meeting.

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Delegation.

18. (1) The Committee may either generally or in relation to a matter or class of matters by resolution of the Committee delegate to any member any of its powers under this Agreement, other than this power of delegation.

Liability for acts of members of Review Committee.

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19. Each Contracting Government shall indemnify the members and deputy member appointed by the Minister of that Contracting Government in respect of any act or omission of those members or that deputy member, and for any losses or costs incurred by them, in the bona fide execution of the powers vested in the Committee by or under this Agreement or the Act approving the same.

Studies and investigations.

20. The Committee may from time to time co-ordinate, or cause to be carried out, surveys, investigations and studies concerning the use, control, protection, management or administration of groundwater within the Designated Area.

Recommendations to Contracting Governments.

21. The Committee may make recommendations to the Contracting Governments or to any authority, agency or tribunal of a Contracting Government concerning any matter which in the opinion of the Committee may in any way affect the investigation, use, control, protection, management or administration of groundwater within the Designated Area.

Proposals to amend Agreement.

22. The Committee shall from time to time review this Agreement and, if in its opinion amendments thereto are necessary or desirable, make recommendations to the Contracting Governments accordingly.

Furnishing information and particulars.

23. Each Contracting Government shall furnish or cause to be furnished to the Committee, at such times as the Committee may require, all the information and particulars that the Committee may require for any of the purposes of this Agreement and which that Contracting Government is able to furnish.

PART IV.—MANAGEMENT PLAN

Designation of Border Area and potentiometric surface levels.

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24. (1) This Agreement shall apply to all lands and to all groundwater within the Designated Area.

Application of legislation.

25. Subject to the provisions of this Agreement—

(a) the provisions of the South Australian Water Resources Act 1976 and of regulations made thereunder shall apply to such portion of the State of South Australia as is within the Designated Area;

(b) the provisions of the Victorian Groundwater Act 1969 and of regulation made thereunder shall continue to apply to such portion of the State of Victoria as is within the Designated Area—

and the provisions of those Acts and regulations shall respectively be applied to—

Management prescriptions.

26. Subject to clause 28 no application for a permit shall be granted and no permit renewed—

(a) in relation to the construction, deepening, enlarging or altering of any bore which passes or will pass through two or more aquifers unless a condition is attached to such permit which requires that an impervious seal be made and maintained between such aquifers.

(b) in relation to the construction, deepening, enlarging or altering of any bore, or the extraction of water from any bore, in any zone where the effect of extracting water from that bore would be to exceed the permissible annual volume for that zone;

(c) in relation to the construction, deepening, enlarging or altering of any bore, or the extraction of water from any bore, in any zone if that bore is situated within, or proposed to be situated within, a distance less than the permissible distance from the border between the State of South Australia and the State of Victoria for that zone unless the Committee has first considered the matter and determined that such application may be granted or such permit may be renewed; or

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(d) in relation to the construction, deepening, enlarging or altering of any bore, or the extraction of water from any bore, where the bore is situated in, or proposed to be situated in a zone where the average annual rate of potentiometric surface lowering has exceeded the permissible rate of potentiometric surface lowering over the preceding five years.

Preparation of reports.

27. (1) As soon as practicable after 30 June in each year, each Contracting Government shall in relation to the zones within its respective jurisdiction cause to be prepared a report stating—

(a) the number of permits granted or renewed in each of those zones in the preceding year ending on 30 June;

(b) the annual volume of extraction which has been authorised in relation to each such permit;

(c) the total number of bores situated in each zone in the preceding year ending on 30 June;

(d) details of the potentiometric surface levels obtained from observation bores within each zone in the preceding year ending on 30 June; and

(e) the levels of salinity in such bores within each zone as shall be specified by the Committee in the preceding year ending on 30 June.

Powers of Review Committee.

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28. (1) The Committee shall meet to consider the report prepared by each Contracting Government relating to the previous year.

(a) the permissible distance from the border between the State of South Australia and the State of Victoria; and

(b) the permissible annual volume of extraction—

in relation to each zone and shall have the power to alter either or both of the same in relation to any zone.

(a) the permissible rate of potentiometric surface lowering; and

(b) the permissible levels of salinity (if any) established pursuant to sub-clause 28 (6)—

in relation to each zone and if the Committee is satisfied that any alteration to either or both of the same is desirable in relation to any zone, it may recommend any such alteration to the Minister of each Contracting Government.

Periods of restriction.

29. (1) Whenever in the opinion of the Committee it is necessary or desirable for the better investigation, use, control, protection, management or administration of groundwater within the Designated Area, it may by resolution declare a period of restriction in relation to any zone.

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(a) the details of the application or of the proposed renewal have first been considered by the Committee;

(b) the granting authority has first considered any recommendation made by the Committee with respect to the application or the proposed renewal; and

(c) thirty days have elapsed from the date on which the details of the application or of the proposed renewal have been considered by the Committee.

Annual report.

30. (1) As soon as practicable after 30 June in each year, the Committee shall prepare a report on its activities during the year ended on the preceding 30 June.

Publication of declarations, etc.

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31. Any alteration made under sub-clauses 28 (2) or 28 (4) or any declaration made under sub-clause 28 (6) or 29 (1) with respect to any zone shall be published in the Government Gazette of the Contracting Government within whose jurisdiction such zone is situate and in a newspaper circulating in that zone and shall take effect from the date of such publication in the Government Gazette.

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FIRST SCHEDULE

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The Designated Area shall be the lands within the boundaries delineated red and the zones shall be the lands within the boundaries delineated blue and bearing the numbers shown:

(a) in the case of South Australia, on the plan entitled "Border Groundwaters Agreement Plan No. 1" which is deposited in the general registry office as G.R.O. number 370/1985;

(b) in the case of Victoria, on the plan entitled "Border Groundwaters Agreement Plan No. 1" entered in the central plan register of the Central Plan Office.

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SECOND SCHEDULE

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THIRD SCHEDULE

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The plan of potentiometric surface levels referred to in sub-clause 24 (2) shall be—

(a) in the case of South Australia, the plan entitled "Border Groundwaters Agreement Plan No. 2" which is deposited in the general registry office as G.R.O. number 371/1985;

(b) in the case of Victoria, the plan entitled "Border Groundwaters Agreement Plan No. 2" entered in the central plan register of the Central Plan Office.

IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as at the day and year first above-written.

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Sch. 2 inserted by No. 79/2005 s. 7.

SCHEDULE 2

Sch. 2

Border Groundwaters Agreement Amendment Agreement

AN AGREEMENT made this 18 day of 10, Two thousand and five between—

The State of South Australia of the first part and

The State of Victoria of the second part.

WHEREAS the South Australian and Victorian Governments wish to amend the Agreement made between the parties on 15th October 1985 (which Agreement is herein called “the principal agreement”), in order to provide the necessary capacity and flexibility to effectively manage the shared groundwater resources of western Victoria and the Mallee and south-eastern South Australia.

NOW IT IS HEREBY AGREED as follows—

Interpretation.

1. Unless the contrary intention appears, expressions used in this Agreement have the same meanings as in the principal agreement except as amended by this Agreement.

Definitions.

2. (1) The following definitions shall be inserted in place of those in clause 1 of the principal agreement—

‘ “Bore” with respect to South Australia, means any well as defined by section 3 of the Natural Resources Management Act 2004 and with respect to Victoria, means any bore as defined by section 3 of the Water Act 1989, but in neither case includes any well or bore from which water is extracted or proposed to be extracted for one or more of the following purposes and for no other purposes—

(a) household purposes;

(b) watering animals kept for domestic and stock purposes; or

(c) the irrigation of a garden not exceeding 0⋅4 hectares in extent used solely in connection with a dwelling and from which no produce is sold.

“Granting authority” means—

(a) in the case of South Australia, the Minister administering the Natural Resources Management Act 2004; and

(b) in the case of Victoria, the Minister administering the Water Act 1989.

“Groundwater” with respect to South Australia means any underground water as defined by section 3 of the Natural Resources Management Act 2004 and with respect to Victoria means any groundwater as defined by section 3 of the Water Act 1989.

“Minister” with respect to South Australia means the Minister administering the Natural Resources Management Act 2004 and with respect to Victoria means the Minister administering the Water Act 1989.

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“Permissible annual volume” means the permissible annual volume of extraction specified for a particular zone or aquifer within a zone in the Second Schedule, or in relation to a particular zone or aquifer within a zone, such other volume as has been determined by the Committee under clause 28(2).

“Permissible distance from the border between the State of South Australia and the State of Victoria” means a distance of one kilometre from that border, or in relation to a particular zone, sub-zone, or aquifer within a zone or sub-zone, such other distance as has been determined by the Committee under clause 28(2).

“Permit” means—

(a) any licence provided for in section 146 of the South Australian Natural Resources Management Act 2004;

(b) any permit provided for in section 135 of the South Australian Natural Resources Management Act 2004;

(c) any licence provided for in Part 5 of the Victorian Water Act 1989;

(d) any licence provided for in section 51 of the Victorian Water Act 1989.’.

‘ “Permissible salinity” means—

(a) a maximum rate of increase; and/or

(b) a designated maximum level—

of salinity, measured as electro-conductivity of so many microsiemens per centimetre at twenty-five degrees Celsius, that must not be exceeded as may be agreed upon by the Minister of each Contracting Government for a particular zone, sub-zone or aquifer within a zone or sub-zone, pursuant to clause 28(6), or in relation to a particular zone, sub-zone or aquifer within a zone or sub-zone, such other rate and/or level as has been agreed upon by the Minister of each Contracting Government under clause 28(4).’.

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‘ “Permissible potentiometric surface lowering” means—

(a) a rate set out in the Third Schedule or such other rate as has been agreed upon by the Minister for each Contracting Government under clause 28(4), and/or

(b) the potentiometric surface level as agreed upon by the Minister of each Contracting Government under clause 28(4).

“Potentiometric surface lowering” means—

(a) a rate of potentiometric surface lowering that must not be exceeded, and/or

(b) a potentiometric surface level that must not be exceeded—

for a particular zone, sub-zone or aquifer within a zone or sub‑zone.’.

The following definition shall be inserted immediately before the definition for “Aquifer”—

‘ “Allowable annual volume” means the allowable annual volume of extraction specified for a particular sub‑zone or aquifer within a sub-zone as has been determined by the Committee under clause 28(7).’.

The following definition shall be inserted immediately after the definition for “Schedule” and immediately before the definition for “Zone”—

‘ “Sub-zone” means a subdivision of a zone with boundaries determined by the Committee under clause 28(7).’.

Approval.

3. (1) This Agreement, other than clause 3(2), is subject to approval by the Parliaments of the States of South Australia and Victoria; and shall come into effect when so approved.

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Application of legislation.

4. The following clause shall replace clause 25 in the principal agreement—

“25. Subject to the provisions of this Agreement—

(a) the provisions of the South Australian Natural Resources Management Act 2004 and of regulations made thereunder shall apply to such portion of the State of South Australia as is within the Designated Area;

(b) the provisions of the Victorian Water Act 1989 and of regulations made thereunder shall continue to apply to such portion of the State of Victoria as is within the Designated Area—

and the provisions of those Acts and regulations shall respectively be applied to—

Management Prescriptions.

5. The following clause shall replace clause 26 in the principal agreement—

“26. (1) Subject to clause 28 no application for a permit shall be granted and no permit renewed—

(a) in relation to the construction, deepening, enlarging or altering of any bore which passes or will pass through two or more aquifers unless a condition is attached to such permit which requires that an impervious seal be made and maintained between such aquifers;

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(b) in relation to the construction, deepening, enlarging or altering of any bore, or the extraction of water from any bore, in a particular zone, or aquifer within a zone, where the effect of extracting water from that bore would be to exceed the permissible annual volume for that particular zone, or aquifer within a zone;

(c) in relation to the construction, deepening, enlarging or altering of any bore, or the extraction of water from any bore, in a particular zone, sub-zone or aquifer within a zone or sub-zone if that bore is situated within, or proposed to be situated within, a distance less than the permissible distance from the border between the State of South Australia and the State of Victoria for that zone, sub-zone or aquifer within a zone or sub-zone unless the Committee has first considered the matter and determined that such application may be granted or such permit may be renewed;

(d) in relation to the construction, deepening, enlarging or altering of any bore, or the extraction of water from any bore, where the bore is situated, or proposed to be situated, in a particular sub-zone or aquifer within a sub-zone, where the effect of extracting water from that bore would be to exceed the allowable annual volume for a particular sub-zone or aquifer within a sub-zone.”.

6. The following sub-clause shall be inserted immediately after clause 26(1) and immediately before clause 27 in the principal agreement—

“(2) Subject to clause 28—

(a) no application for a permit shall be granted and no permit renewed; or

(b) a period of restriction shall be declared subject to clause 29(3)—

where the potentiometric surface lowering has exceeded the permissible potentiometric surface lowering in a particular zone, sub-zone or aquifer within a zone or sub-zone over the preceding five years.”.

Preparation of reports.

7. The following paragraph shall replace clause 27(1)(d) in the principal agreement—

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“(d) details of the potentiometric surface levels obtained from observation bores within each particular zone, sub-zone or aquifer within a zone or sub-zone in the preceding year ending on 30 June; and”.

8. The following paragraph shall replace clause 27(1)(e) in the principal agreement—

“(e) the rate of increase or level of salinity in such bores within a particular zone, sub-zone or aquifer within a zone or sub-zone as shall be specified by the Committee in the preceding year ending on 30 June.”.

9. The following sub-clause shall replace clause 27(3) in the principal agreement—

“(3) In this clause “Observation bore” with respect to South Australia, means any well as defined by section 3 of the Natural Resources Management Act 2004 and with respect to Victoria, means any bore as defined by section 3 of the Water Act 1989.”.

Powers of Review Committee.

10. The following sub-clause shall replace clause 28(2) in the principal agreement—

“(2) At intervals of not more than five years, the Committee shall review—

(a) the permissible distance from the border between the State of South Australia and the State of Victoria in relation to a particular zone, sub-zone or aquifer within a zone or sub-zone;

(b) the permissible annual volume of extraction in relation to a particular zone or aquifer within a zone;

(c) the allowable annual volume of extraction in relation to a particular sub-zone or aquifer within a sub-zone—

and shall have the power to alter any or all of the same in relation to a particular zone, sub-zone or aquifer within a zone or sub-zone.”.

11. The following sub-clause shall replace clause 28(3) in the principal agreement—

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“(3) At intervals of not more than five years, the Committee shall review—

(a) the permissible potentiometric surface lowering;

(b) the permissible salinity (if any) established pursuant to sub-clause (6)—

in relation to each particular zone, sub-zone or aquifer within a zone or sub-zone and if the Committee is satisfied that alteration to any or all of the same is desirable in relation to a particular zone, sub-zone or aquifer within a zone or sub-zone, it may recommend any such alteration to the Minister of each Contracting Government.”.

12. The following sub-clause shall replace clause 28(4) in the principal agreement—

“(4) Where the Minister of each Contracting Government agrees with any such recommendation, the permissible potentiometric surface lowering and/or the permissible salinity, for a particular zone, sub-zone or aquifer within a zone or sub-zone shall be deemed to have been altered in accordance with any such recommendation.”.

13. The following sub-clause shall replace clause 28(5) in the principal agreement—

“(5) The Committee may at any time recommend to the Minister of each Contracting Government that a permissible salinity be declared for a particular zone, sub-zone or aquifer within a zone or sub-zone.”.

14. The following sub-clause shall replace clause 28(6) in the principal agreement—

“(6) Where the Minister of each Contracting Government agrees with any such recommendation, a permissible salinity shall be deemed to have been declared for that particular zone, sub-zone or aquifer within that zone or sub-zone in accordance with that recommendation.”.

15. The following sub-clause shall be inserted immediately after clause 28(6) and immediately before clause 29 of the principal agreement—

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“(7) The Committee, having regard to the size and variability of a zone, may—

(a) divide the zone or the aquifer within a zone into two or more sub-zones;

(b) determine the boundaries of a particular sub-zone or aquifer within a sub-zone;

(c) determine the allowable annual volume for the sub-zone or aquifer within a sub-zone that does not exceed that permissible annual volume of which the sub-zone forms part;

(d) determine the permissible distance from the border between the State of South Australia and the State of Victoria for a particular sub-zone or aquifer within a zone or sub-zone—

and shall have the power to alter any or all the same in relation to a particular sub-zone or aquifer within a sub-zone.”.

Periods of Restriction.

16. The following sub-clause shall replace clause 29(3) in the principal agreement—

“(3) A period of restriction may be declared in relation to any zone, sub-zone or aquifer within a zone or sub-zone notwithstanding that the permissible annual volume or the allowable annual volume or the permissible salinity (if any) or the permissible potentiometric surface lowering for that zone or sub-zone, or any or all of them, has not been exceeded in any previous year.”.

Publication of declarations, etc.

17. The following clause shall replace clause 31 in the principal agreement—

“31. Any alteration made under clause 28(2) or 28(4) or 28(7) or any declaration made under clause 28(6) or 29(1) with respect to any zone or sub-zone shall be published in the Government Gazette of the Contracting Government within whose jurisdiction such zone is situate and in a newspaper circulating in that zone or sub-zone and shall take effect from the date of such publication in the Government Gazette.”.

18. The following Schedule shall replace the SECOND SCHEDULE of the principal agreement—

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SECOND SCHEDULE

19. The following Schedule shall replace the THIRD SCHEDULE of the principal agreement—

THIRD SCHEDULE

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20. Clause 24(2) in the principal agreement shall be deleted.

IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as at the day and year first above-written.

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