Qualification of rights to water

A qualification of rights is a change to a legal entitlement to water.

A qualification of rights can either be permanent or temporary.

The Water Act 1989 grants the Minister for Water (the Minister) the power to qualify rights.

Rights to water that may be qualified include licences, water shares, bulk entitlements and environmental entitlements; however, the Crown's right to water under section 7(1) and a person's right to water under section 8(4)(c) cannot be qualified.

A permanent qualification of rights can be made under section 33AAB of the Water Act 1989 for the Minister to change the water sharing arrangements under existing entitlements in a given area.

The Minister may only permanently qualify rights to water following a long-term water resources assessment, which indicates that a decline in the long-term availability of surface water or groundwater has had a disproportionate effect:

• On the environmental water reserve; or
• On water allocated for consumptive purposes; or
• That there has been a deterioration in waterway health for reasons related to flow.

Any permanent qualification cannot take effect until after 2021 and can occur no more frequently than every 15 years thereafter.

A temporary qualification of rights can be made under section 33AAA of the Water Act 1989 to ensure critical water needs are met in extreme circumstances. It is a temporary change in water sharing arrangements in a given area.

The provision is designed to allow the Minister to intervene when there is a water shortage resulting in a failure of the water sharing arrangements under existing entitlements. For example, this may occur during an extreme drought or as a result of a poor water quality event following a bushfire.

The Minister must first declared a water shortage under section 33AAA(2) of the Water Act 1989. Following this the Minister may temporarily qualify rights to water, which means rights may be suspended, reduced, increased or otherwise altered.

A qualification of rights must apply to all rights in the same proportion unless the Minister deems there are extreme circumstances that warrant differential qualifications.

Notice of a qualification of rights must be either given to the person affected by the qualification or published in a newspaper generally circulating in the relevant area.

The Minister may make a temporary qualifications of rights by Order published in the Victorian Government Gazette. A temporary qualification of rights will remain in place until a time specified in the Order.

The  guidelines for temporary qualification of rights to surface water explain the roles and responsibilities of the Minister, the Department, bulk and environmental entitlement holders and water corporations in the process.

The guidelines have been developed through the experience of completing a number of qualifications to surface water entitlements during the extremely dry period between 2006 and 2009. They have been developed with the aim of streamlining the implementation of qualifications if they are required in future.

The guidelines:

• Outline the process involved for the bulk entitlement holder (generally water corporation), DELWP and the Minister in order to satisfy the requirements of the Water Act 1989
• Outline who is responsible for:
  • Preparing a request for a qualification;
  • Assessing the risks of a qualification;
  • Determining a request for a qualification;
  • Managing the impacts and risks associated with qualifications; and
  • Reviewing, reporting and auditing at the expiration of a qualification.

When a bulk entitlement holder (usually a water corporation) makes a request to the Minister to qualify rights, they must be able to demonstrate a water shortage which is beyond the reasonable scope of its water resource and contingency planning.

Download the guidelines:

• Temporary Qualifications of Rights to Surface Water  (PDF, 642.8 KB)
• Temporary Qualifications of Rights to Surface Water - accessible (DOCX, 73.2 KB)