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  • Water register information notes

    These information notes are designed to give more detailed information about the water register.

    On this page:

    Who must register

    From 1 July 2017 foreign persons are required to register their interests in registrable water entitlement and contractual water rights with us.

    A foreign person is generally:

    • an individual who is not ordinarily resident in Australia
    • a foreign government or foreign government investor
    • a corporation, trustee of a trust or general partner of a limited partnership where an individual not ordinarily resident in Australia, foreign corporation or foreign government holds a substantial interest of at least 20%
    • a corporation, trustee of a trust or general partner of a limited partnership in which two or more persons hold an aggregate substantial interest of at least 40%.

    A person who is not an Australian citizen will only be taken to be ordinarily resident in Australia if they have spent 200 days or more of the preceding 12 month period in Australia and the person is not in Australia on a visa which is time-limited. Australian citizens and permanent residents living overseas must consider if they are ordinarily resident to determine if they are foreign persons.

    For the purposes of the water register, there are no sectors or types of water users which are exempt from the requirement to register where they meet the definition of a foreign person and hold registrable water entitlements.

    An agent or representative of the owner of the registrable water entitlements or contractual water rights can register on behalf of the owner.

    For more information on the definition of a foreign person see guidance note 31: Who is a ‘foreign person’?External Link

    Example 1

    Ms Smith is an Australian citizen. She resides in the United Kingdom, which has been her permanent home for the last 15 years. As Ms Smith is not ordinarily resident in Australia, she is a foreign person.

    End of example

    Example 2

    Mr Huang is a Singaporean national who owns an agricultural holding and water entitlements. As Mr Huang is not a citizen of Australia and is not a permanent resident who is ordinarily resident in Australia, he is a foreign person.

    End of example

    Example 3

    The Cattle Company Pty Ltd is incorporated in Australia. It owns farmland in Australia and runs a cattle station. A foreign company owns 24% of the shares in the Cattle Company Pty Ltd. The Cattle Company Pty Ltd is a foreign person.

    End of example

    Example 4

    The Orchard Company acts as trustee for the Orchard Unit Trust. 30% of the units in the Orchard Unit Trust are owned by a foreign person. The Orchard Company acting as trustee for the Orchard Trust is a foreign person.

    End of example

    Example 5

    The Orange Company is general partner of the Orange Limited Partnership. The Limited Partnership is 40% owned by three foreign companies from the United States, the United Kingdom and Japan. The Orange Company is considered a foreign person because they are a general partner of the Orange Limited Partnership which has 40% or more of the interests in the partnership held by foreign persons.

    End of example

    Example 6

    The Department of Agricultural Acquisitions is part of a body politic of a foreign country. The department is a foreign person.

    End of example

    Irrigation infrastructure operators

    Requirements to register

    An irrigation infrastructure operator (IIO) will only be required to register water holdings and interests if:

    • the IIO meets the definition of a foreign person and;
    • the IIO holds water entitlements (or portions of entitlements) that are not subject to irrigation rights; and/or
    • the IIO holds water entitlements (or portions of entitlements) that are not used for conveyance purposes.

    See also:

    Conveyance water

    The volume of water that can be attributed to conveyance water is the additional water that is required to deliver water to users, and includes water lost in transit from its source to end users due to seepage, leakage, evaporation or other similar effects.

    Note that the exemption for conveyance is only available to IIOs, not to individual entitlement holders.

    Example 1

    Irrigation Fifty Co-op is an IIO which is owned by its 200 member irrigators, 85 members are foreign persons. As the IIO is a limited partnership where two or more foreign persons hold an aggregate substantial interest of at least 40%, the IIO is a foreign person.

    End of example

    Example 2

    Merry River Irrigation is an IIO which is owned by its 100 member irrigators and 15 members are foreign persons.

    As the IIO is a limited partnership where two or more foreign persons do not hold an aggregate substantial interest of at least 40%, the IIO is not a foreign person.

    End of example

    Example 3

    Sunny Valley is an IIO which distributes water in the Sunny Valley region, its member irrigators are also company shareholders. Four foreign companies each hold 10% in Sunny Valley which makes Sunny Valley a foreign person.

    Sunny Valley holds 100 water entitlements. They hold 98 water entitlements for members, who hold irrigation rights against Sunny Valley in relation to those entitlements. Of the remaining two registrable water entitlements, one is held by Sunny Valley for conveyance water and the other for investment purposes.

    Sunny Valley is only required to register its interests in the water entitlement held for investment purposes.

    End of example

    Example 4

    Dynamic Water Cooperative (DWC) is a foreign IIO providing irrigation services in New South Wales. DWC has a small number of water access entitlements, known in New South Wales as water access licences (WALs). DWC uses WAL1234, whose nominal volume is 2,500 ML, partly to account for:

    • irrigation distribution system losses (conveyance),
    • customer’s irrigation rights, and
    • its own trading purposes.

    At the end of the year DWC establishes that a volume of 1,500 ML is subject to its customers’ irrigation rights and estimates that annual conveyance losses are in the order of 750 ML. DWC is therefore required to register WAL1234, with a volume of 250 ML, with the ATO.

    End of example

    IIOs are welcome to use these pages as guidance and reference for member irrigators or shareholders.

    Send an email to us at landregister@ato.gov.au if you need further guidance.

    Water holdings and interests requiring registration

    Foreign persons will need to register their interests in a ‘registrable water entitlement’ or a ‘contractual water right’. Both of these terms are defined in the Register of Foreign Ownership of Water or Agricultural Land Act 2015.

    Registrable water entitlement

    A ‘registrable water entitlement’ is:

    • an irrigation right – which is a right a person has against an irrigation infrastructure operator (IIO) to receive water (and excludes a water access right or a water delivery right);
    • a right (including an Australian water access entitlement) conferred by or under a law of a State or Territory to do either or both of the following:    
      • to hold water from a water resource in Australia
      • to take water from a water resource in Australia.
       

    A water entitlement given to an irrigator by an IIO is considered an irrigation right and so is a registrable water entitlement.

    Exclusions

    The following types of water rights will be excluded from the definition of a ‘registrable water entitlement’:

    • stock and domestic rights, and harvestable rights used for stock and domestic purposes
    • riparian rights
    • annual water allocations, and
    • rights held by an IIO to the extent that either another person holds an irrigation right in relation to that right, or they are for conveyance water.

    See also:

    • Who must register

    Example 1

    Simone is a foreign person and holds a right to receive 6.3 ML from the Lower River Irrigating Cooperative (which is an IIO). This right is an irrigation right and must be registered with us.

    End of example

    Example 2

    Pyrite Exploration Corporation (PEC) is a foreign company that conducts mining operations in a remote area in the state of Queensland not covered by a water resource plan. The Queensland government issued PEC with a 5,000 ML ten-year licence on 12 September 2014. The licence allows PEC to take, hold and interfere with the specific groundwater resource in accordance with the licence conditions. This licence is a right conferred under a state law to hold and take water from a water resource within Australia and is a registrable water entitlement. PEC must register the water entitlement.

    End of example

    Example 3

    Anthony and Leah Block are foreign persons who have a dam on their property in Victoria to capture water for the purpose of providing drinking water for their cattle. This is considered a harvestable right used for stock and domestic purposes and so they are not required to register.

    End of example

    Example 4

    Laurent Dubois is a foreign person who has a harvestable water right issued by the state of New South Wales. It allows him to capture and store rain which falls on his property. Mr Dubois owns an intensive piggery business and is allowed to use the first 20 ML of this right for stock and domestic purposes The remainder is used for commercial purposes in his piggery. The 20 ML of his right which is for stock and domestic purposes will not meet the definition of a registrable water entitlement, and will not need to be registered with us. To the extent that the remaining part of Mr Dubois' right is not a stock and domestic right, it will meet the definition of registrable water entitlement and must be registered with us.

    End of example

    Contractual water right

    A contractual water right is a contractual right (including a deed) that a person or other entity holds (alone or jointly) to another person’s registrable water entitlement.

    Where a foreign person acquires a contractual water right it will only be registrable if the rights contracted will be for a period of longer than five years (including any options to extend or renew the contract).

    A contract between an irrigator and IIO for the irrigator to receive water is an irrigation right and not a contractual water right even though a contract might be involved. The contractual water right is intended to include only those entitlements which are leased or otherwise obtained from a person, other than an irrigation infrastructure operator, who holds that water entitlement.

    Example

    Quartz Quarry Pty Ltd is an Australian owned company that holds a state government-issued water access right that provides access to a maximum of 150 ML of water from an aquifer in a given period. This right meets the definition of a registrable water entitlement conferred under a state law to take water from a water resource and meets the definition of a registrable water entitlement. However as Quartz Quarry Pty Ltd does not need to register this entitlement as it is not a foreign person.

    On 15 September 2017, Quartz Quarry leases part of its entitlement to Gemstone Exploration Ltd. Gemstone Exploration holds a contractual water right and is a foreign person. The term of the lease is for an initial period of four years, with the ability to extend the lease for another six years. Gemstone Exploration Ltd must notify us of the contractual water right before 1 December 2017.

    End of example

    When to register

    From 1 July 2017, foreign persons must register their interests in registrable water entitlements and contractual water rights, and certain changes in these interests, with us.

    A foreign person may register at any time during the year (for example, when the event occurs), but no later than 30 days after the end of the financial year in which the event occurred.

    A foreign person will need to register their interest in a registrable water entitlement or contractual water rights with us, when:

    • they acquire a registrable water entitlement or contractual water right under a contract where the term of the contract is likely to exceed five years after the person starts to hold the right
    • they become a foreign person while holding a registrable water entitlement or contractual water right under a contract where the term of the contract is likely to exceed five years after the later of the person becoming a foreign person or the time the person started to hold the interest.

    A foreign person will need to update their existing registration, when:

    • they dispose of the registrable water entitlement or contractual water right
    • they stop being a foreign person
    • the volume of their registrable water entitlement or contractual water right changes.

    However, if the acquisition and disposal of the same registrable water entitlement or contractual water right occurs during a financial year, there is no need to notify us of either event.

    Similarly, if a person who holds a registrable water entitlement or contractual water right begins to meet the definition of a foreign person during a financial year but does not meet the definition by the end of the same year, the person will not be required to register.

    If you anticipate multiple transactions during the year, it is recommended that you wait until year end to register the relevant event and volume of water held.

    Example 1

    Binny Jenkins is a foreign person who owns an asparagus farm in New South Wales and has an irrigation right with ABC Irrigation Ltd. She enters into the contract with ABC Irrigation Ltd on 15 February 2018.

    The irrigation right meets the definition of a registrable water entitlement. Binny has until 11.59pm on 30 July 2018 to register the irrigation right with us.

    End of example

    Example 2

    Pippa Storey is a foreign person who purchases a new 10 ML water allocation in a catchment in Queensland in February 2018. Pippa already holds another water allocation for 20 ML with the same characteristics in that catchment, which has been previously registered with us.

    Pippa has until the end of July 2018 to register her new water allocation. However, before registering her new water allocation Pippa decides to amalgamate the latest water allocation with her existing holding for ease of administration and does this before 1 July 2018.

    As a result of the amalgamation, the volume against Pippa’s water allocation changes and she must notify us of this event. Pippa does not need to register the water allocation she purchased in February as she purchased the water allocation in the same financial year she disposed of it.

    End of example

    Example 3

    Pine Growers Australia is a foreign person who buys a new water access licence in a catchment in New South Wales on 6 February 2018. The company has until 11.59pm on 30 July 2018 to register the entitlement with us.

    However, in March 2018, they sell the company and all assets including the water access licence to Gum Growers Victoria.

    As Pine Growers Australia bought and sold the entitlement during the 2017–18 financial year, it has no requirement to register the purchase or the sale with us.

    End of example

    Example 4

    Antonia owns a vineyard in the vicinity of Shepparton Victoria and is a foreign person. In November 2019, due to the dry conditions in recent years and the forecast that such conditions may extend over several more years, Antonia takes a 10 year lease of over 100 ML of her neighbour Luigi’s water share. Luigi has a water share in excess of his needs.

    The contract between Antonia and Luigi over Luigi’s water share meets the definition of a contractual water right. As the term of this contract exceeds five years, Antonia must register the contractual water right with us before 11.59pm on 30 July 2020.

    End of example

    Example 5

    Saffron is a foreign person and acquires a registrable water entitlement on 13 October 2018. Her solicitor registers her acquisition of the entitlement on 22 October 2018. Saffron becomes a permanent resident on 6 March 2019. Because she has notified us of her acquisition earlier in the financial year she has until 30 July 2019 to advise us that she has become a permanent resident and does not need to be on the register.

    End of example
    Last modified: 04 Sep 2018QC 52592