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Water Amendment Bill 2018

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2016-2017-2018

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

WATER AMENDMENT BILL 2018

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Agriculture and Water Resources,

the Hon. David Littleproud MP)

 



WATER AMENDMENT BILL 2018

GENERAL OUTLINE

The Water Amendment Bill 2018 (the Bill) will amend the Water Act 2007 (the Water Act) to enable the Commonwealth Water Minister (the Minister) to direct the Murray-Darling Basin Authority (the Authority) to prepare an amendment to the Basin Plan 2012 (the Basin Plan) that is the same in effect as a Basin Plan amendment that has previously been disallowed, or taken to have been disallowed, by either House of Parliament. The Authority will not be required to conduct the consultation process contained in Subdivision F of Division 1 of Part 2 of the Water Act when preparing an amendment in response to a Ministerial direction made under the proposed power. The Subdivision F consultation process provides for the Authority to consult with the public, the Basin States, the Basin Officials Committee, the Basin Community Committee and the Murray-Darling Basin Ministerial Council. The Authority is also required to consult the Australian Competition and Consumer Commission where amendments may relate to the water trading rules.

Any new amendment prepared under this power must be the same in effect as a disallowed amendment. This means neither the Minister nor the Authority may prepare or adopt amendments that have not previously been subject to the detailed (including extensive consultation) process contained in Subdivision F of Division 1 of Part 2 of the Water Act. This requirement will protect the integrity of the consultation process.

Notably, any direction to prepare an amendment must be given within 12 months, that period beginning on the day the original amendment is disallowed (or taken to be disallowed).

The Bill will add a new Schedule 10 to the Water Act, which for the avoidance of doubt, clarifies that certain amendments to the Basin Plan relating to the Basin Plan Amendment Instrument 2017 (No. 1) will be the same in effect as the disallowed Basin Plan Amendment Instrument 2017 (No. 1).

Ministerial directions powers are already permitted under the Water Act in its current form. This new power is an extension of the existing power of the Minister to give a direction.

The Authority was consulted during the drafting of this Bill.

FINANCIAL IMPACT STATEMENT

The Bill will have no financial impact on the Australian Government Budget.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Water Amendment Bill 2018

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act .

Overview of the Bill

The Water Amendment Bill 2018 (the Bill) will amend the Water Act 2007 (the Water Act) to enable the Commonwealth Water Minister (the Minister) to direct the Murray-Darling Basin Authority (the Authority) to prepare an amendment to the Basin Plan 2012 (the Basin Plan) that is the same in effect as a Basin Plan amendment that has previously been disallowed, or taken to have been disallowed, by either House of Parliament.

For any Basin Plan amendment prepared by the Authority under this power, it must be the same in effect as the disallowed amendment. The Authority may not propose changes to the disallowed amendment that have not previously been subject to the detailed process (including extensive consultation) detailed in sections 45 to 48 of the Water Act.

The process contained in sections 45 to 48 of the Water Act requires the Authority to consult with the public, the Basin States, the Basin Officials Committee, the Basin Community Committee and the Murray-Darling Basin Ministerial Council. The Authority is also required to consult the Australian Competition and Consumer Commission on amendments where they relate to the water trading rules.

The Bill specifies certain changes will not prevent the new amendment from being the same in effect as the disallowed amendment, for instance, minor or non-substantive amendments or a change that is required because another amendment of the Basin Plan has commenced after the commencement of the earlier amendment.

Human rights implications

The Bill does not engage any of the applicable rights or freedoms contained in the seven core international human rights treaties to which Australia is a party.

Ministerial directions powers are already permitted under the Water Act in its current form. This new power is an extension of the existing power of the Minister to give a direction. Any amendment prepared in response to a direction made under the proposed Bill may engage human rights implications at such time that the amendment is made.

Conclusion

This Bill is compatible with human rights as it does not engage any human rights issues.

(Circulated by authority of the Minister for Agriculture and Water Resources,

the Hon. David Littleproud MP)

 

 



ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS

the Act

Water Act 2007

the Authority

Murray-Darling Basin Authority

the Basin Plan

Basin Plan 2012

the department

the department administered by the Minister administering the Water Act 2007

the Minister

the Minister administering the Water Act 2007

SDL

sustainable diversion limit



 



 

NOTES ON AMENDMENTS

Preliminary

Clause 1              Short Title

Clause 1 provides for the short title of the Act to be the Water Amendment Act 2018 .

Clause 2              Commencement

Clause 2 provides for the commencement of each provision in the Bill, as set out in the table.

Item 1 in the table provides that the whole of the Bill will commence on the earlier of either the day after the Bill receives the Royal Assent and 1 July 2018.

Subclause 2(2) provides that any information in column 3 of the table is not part of the Bill. Information may be inserted in column 3 of the table, or information in it may be edited, in any published version of the Bill.

Clause 3              Schedules

Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Bill has effect according to its terms.



 

Schedule 1—Amendments

Overview

Schedule 1 to the Bill will insert a new section, section 49AA, to the Water Act 2007 (the Water Act). The Bill will also insert related amendments to sections to give effect to 49AA.

The Bill will amend the Water Act to enable the Minister to direct the Murray-Darling Basin Authority (the Authority) to prepare an amendment that will be in the same in effect as a Basin Plan 2012 (Basin Plan) amendment that has been previously disallowed by the Federal Parliament, without having to undertake the consultation process requirements set out in the Water Act (Subdivision F of Division 1 of Part 2 of the Water Act).

For any Basin Plan amendment prepared by the Authority under this power, it must be the same in effect as the disallowed amendment. Essentially this ensures that the Authority cannot propose changes to the disallowed amendment that have not previously been subject to the detailed process (including extensive consultation) detailed in sections 45 to 48 of the Water Act.

The Bill specifies certain changes will not prevent the new amendment from being the same in effect as the disallowed amendment, for instance, changes that are required because another amendment of the Basin Plan has commenced after the commencement of the earlier amendment, or minor or non-substantive amendments.

 

Water Act 2007

Item 1                            Subsection 33(2)

This item inserts a reference to new section 49AA into subsection 33(2) of the Water Act to make it clear that an amendment made under section 49AA is a legislative instrument.

Item 2                  At the end of Subdivision F of Division 1 of Part 2

This item adds a new section 49AA to the Water Act which will provide an expedited process to remake a disallowed Basin Plan amendment (the earlier amendment). The new section will allow the Minister to direct the Authority to prepare an amendment to the Basin Plan that will be the same in effect as an earlier amendment to the Basin Plan that has been disallowed, or taken to have been disallowed, by the Federal Parliament. This amendment can be prepared by the Authority without having to undergo the consultation requirements contained in Subdivision F of Division 1 of Part 2 of the Water Act.

The power to direct

Subsection 49AA(1) provides that any direction made by the Minister under this new section must be made in writing.

There are limitations on the power to direct, as follows:

·          The amendment must be the same in effect as an earlier amendment that has been disallowed;

·          The earlier amendment must have been previously prepared under Subdivision F of Division 1 of Part 2 of the Water Act, that is, it has been subject to the detailed process (including extensive consultation with the Basin States, Basin Officials Committee, Basin Community Committee, Murray-Darling Basin Ministerial Council and the public);

·          The direction must be given within a 12 month period beginning on the day the earlier amendment was disallowed (or taken to have been disallowed); and

·          The earlier amendment must not have been one that was previously adopted under section 49AA. If the Minister does not adopt the amendment, it would be open to the Minister to re-direct the Authority to propose a further iteration of the amendment, provided that the direction was given within the same 12 month period.

These limitations will operate so that the Authority cannot prepare an amendment that introduces new provisions that will deliver a different outcome to the earlier amendment that has not been subject to the extensive consultation process under the Water Act. There is also a 12 month limitation to ensure the previous consultation on the earlier amendment is relevant and valid.

Subsection 49AA(2) provides that the Authority is required to comply with the Minister’s direction to prepare another Basin Plan amendment the same in effect as an earlier amendment and that it must be provided to the Minister as soon as practicable after receipt of the direction.

Subsection 49AA(3) provides that as soon as practicable after receiving the amendment the Minister must either adopt or not adopt the amendment.

Subsection 49AA(4) clarifies that sections 46 to 48 of the Water Act, detailing the process for amending the Basin Plan, do not apply to amendments prepared under this section.

Subsection 49AA(5) provides that a direction made under subsection 49AA(1) is a legislative instrument. However this direction is not a disallowable legislative instrument required under the Legislation Act 2003 to be tabled in Parliament. The direction is also not subject to the sunsetting provisions for legislative instruments detailed in Part 4 of Chapter 3 of the Legislation Act 2003 .

Subsection 49AA(6) clarifies that certain types of changes in an amendment will not be prevented from being taken to be the same in effect as a disallowed amendment. The clarification provided in subsection 49AA(6) is not intended to limit the kinds of amendments that will be the same in effect. Rather, this clarification is provided to remove any doubt about whether these kinds of amendments would be the same in effect. The following clarification is provided:

·          Paragraph (a) includes changes which are required because another amendment, such as the Basin Plan Amendment (SDL Adjustments) Instrument 2017 has commenced in law after the commencement of the earlier amendment.

·          Paragraph (b) would include a change in the amendment that is required because of a legislative requirement having occurred under the Basin Plan. For instance, this would include the 2017 sustainable diversion limit adjustment determination occurring in December 2017 after the commencement of the earlier amendment.

·          Paragraph (c) would include a change in the amendment in respect of commencement dates.

·          The note clarifies that minor or non-substantive amendment do not prevent the amendment from being the same in effect as the earlier disallowed amendment and includes as an example minor or non-substantive amendments that are prescribed for  paragraph 49(1)(a) (see Regulation 2.03 of the Water Regulations 2008 ).

Item 3                  Subsection 175(1) (note)

This item repeals the note and substitutes a new note to subsection 175(1). The new note points to examples in the Water Act (subparagraph 44(3)(b)(ii), subparagraph 48(3)(b)(ii) and subsection 49AA(1) are specifically mentioned) that enable the Minister to give directions. The new note also indicates that the Minister’s power to make a direction may be subject to limitations.

Item 4                  Paragraph 251(2)(b)

This item inserts a reference to new section 49AA into paragraph 251(2)(b) of the Water Act so that the power to adopt an amendment under section 49AA cannot be delegated by the Minister.  

Item 5                           After paragraph 251(2)(b)

This item inserts a new subparagraph (ba) to paragraph 251(2)(b) of the Water Act. This new subparagraph ensures that the new directions power given to the Minister by section 49AA is not able to be delegated. The effect of this item is that the new directions power can only ever be exercised by the Minister.

Item 6                           After section 255B

This item inserts a new section 255C to the Water Act. This item makes clear that there are transitional provisions relating to these amendments that are contained in a new Schedule 10 to the Water Act, and that Schedule 10 to the Water Act has effect.

Item 7                  At the end of the Act

Item 7 adds a new schedule, to the end of the Water Act: Schedule 10—Transitional provisions relating to amendments.

The new item 1 of Part 1 of Schedule 10 specifies that the amendments made by Schedule 1 to the Bill apply regardless of when a previous amendment has been disallowed before this Schedule has commenced in law.

The new item 2 of Part 1 of Schedule 10 sets out transitional provisions relating to the preparation of an amendment of the Basin Plan that is the same in effect as the disallowed Basin Plan Amendment Instrument 2017 (No.1) .

 



 

For the avoidance of doubt item 2(2) clarifies that including in the amendment the following listed changes will be the same in effect as the Basin Plan Amendment Instrument 2017 (No.1) :

·          Paragraph (a) provides for a change to the definition of re-allocation adjustment request to enable a request to be made in anticipation of this provision being amended in the Basin Plan;

·          Paragraph (b) provides for a change in subsection 6.05(13) to provide that the Authority must publish variations to the SDL resource unit shared reduction amounts on its website, even when there has not been an initial re-allocation adjustment requirement; and

·          Paragraph (c) provides for a change to section 7.14A that will reflect that the 2017 sustainable diversion limit adjustments have already occurred.