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National Water Commission (Abolition) Bill 2015

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2013-14-15

 

 

 

 

 

 

The Parliament of the Commonwealth of Australia

 

 

 

 

House of RepresenTatives

 

 

 

 

 

National Water Commission (Abolition) Bill 2014

 

 

 

 

 

 

REVISED Explanatory Memorandum

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Parliamentary Secretary to the Minister for the Environment, the Hon Bob Baldwin MP)



 

National Water Commission (Abolition) Bill 2014

General OUTLINe

1.                   The National Water Commission (Abolition) Bill 2014 (the Bill) will abolish the National Water Commission (NWC) upon commencement of the Bill.

2.                   The Bill delivers on the Government’s commitment announced in the 2014-15 Budget to cease the operations of the NWC upon commencement of the Bill, while transferring key NWC functions to existing Commonwealth agencies.

The NWC

3.                   The NWC is an independent statutory body established by the National Water Commission Act 2004 (NWC Act).

4.                   Under the NWC Act, the NWC is responsible for assisting in the implementation of the Intergovernmental Agreement on a National Water Initiative (NWI) and providing advice to the Commonwealth and the Council of Australian Governments (COAG) on national water reform. The principal role of the NWC is to provide oversight and assessment of national water reforms.

5.                   Since the Australian Government and all State and Territory Governments agreed to the NWI in 2004, there has been considerable progress in improving water management practices, enhancing the security of irrigation water entitlements, enabling water markets and trade, strengthening Australia’s water resource information base and improving urban water security.

6.                   The Government remains committed to progress in national water reform and to supporting and promoting implementation of the NWI, however, it is no longer necessary to retain a separate body to undertake the functions of the NWC. For this reason, key NWC functions will be retained and transferred to existing agencies.

Continuing functions



7.                   The Bill retains two key statutory functions of the NWC: triennial assessments of progress on implementation of the NWI, and audits of the implementation of the Murray-Darling Basin Plan and associated Basin State water resource.

8.                   Under the NWC Act, the NWC is responsible for triennial assessments of progress of the NWI parties toward achieving the outcomes and objectives of the NWI, and making recommendations on actions that NWI parties might take to better implement the NWI within specified timeframes. 

9.                   This triennial assessment function will be transferred to the Productivity Commission (PC) through amendments to the Water Act 2007 (Water Act). The PC will have regard to the objectives set out in clause 23 of the NWI in performing this function.

10.               Under the Water Act, the NWC is responsible for five-yearly audits of the effectiveness of the implementation of the Basin Plan 2012 (Basin Plan) and water resource plans accredited under the Basin Plan.

11.               The five-yearly audits of Basin Plan implementation and water resource plans will also be transferred to the PC. Such audits will encompass consideration of the achievement of the Basin Plan’s management objectives and outcomes. These include the objectives and outcomes for the Basin Plan as a whole set out in section 5.02 of the Basin Plan, and include the optimisation of social, economic and environmental outcomes in the national interest, and the establishment of a sustainable and long-term adaptive management framework for Basin water resources.

12.               In conducting the triennial assessments of NWI implementation and the five-yearly Basin Plan audits, the Chair of the PC (the PC Chair) must establish a stakeholder working group, which will facilitate consultation with and advice from the water sector. Associate Commissioners with extensive skills and experience in water resource management must also be appointed for the purposes of these inquiries.

FINANCIAL IMPACT STATEMENT

13.               The closure of the NWC, as effected by the Bill, will provide a saving of $20.9 million over four years.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

14.               The Bill repeals the NWC Act, abolishing the NWC, a Commonwealth agency established by the Act. The principal role of the NWC is to provide oversight and assessment of national water reform. The Bill will also transfer two functions, the triennial assessment function and the Basin Plan audit function, to the PC.  

15.               The 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 2011 .

16.               The Bill does not engage any of the applicable rights or freedoms. The proposed amendments are of a machinery of government nature and do not limit any human rights or provide for any offences or penalties.

Conclusion

17.               The Bill is compatible with human rights as it does not engage any of the applicable rights or freedoms.

NOTES ON INDIVIDUAL CLAUSES

Clause 1 - Short Title

18.               This clause provides that the Act is to be cited as the National Water Commission (Abolition) Act 2014 (Act) .

Clause 2 - Commencement

19.               This clause provides that the Act will commence on the day after receiving the Royal Assent.

Clause 3 - Schedules

20.               This clause provides for the repeal of the National Water Commission Act 2004 (NWC Act) and amendments to the Water Act 2007 (Water Act) as specified in the Schedule.

Schedule 1 - Amendments

Part 1 - Repeals

National Water Commission Act 2004



Item 1 - The whole of the Act

21.               This item repeals the NWC Act.

Part 2 - Amendments

Productivity Commission Act 1998

Item 1A - Section 25

22.               This item amends section 25 of the Productivity Commission Act 1998 (the PC Act), which provides that the Productivity Minister may appoint Associate Commissioners following consultation with the PC Chair.

Item 1B - At the end of section 25

23.               This item inserts new subsections 25(2) and 25(3), which require the Productivity Minister to appoint an Associate Commissioner for the purposes of inquiries into the effectiveness of Basin Plan implementation and progress toward NWI objectives and outcomes. An Associate Commissioner appointed under subsection 25(3) must have extensive skills and experience in water resource management.

Water Act 2007

Items 2-4 - Subsection 4(1)

24.               These items insert new definitions into subsection 4(1), which sets out defined terms used throughout the Water Act.

Item 5 - Subsection 74A(4)

25.               This item repeals subsection 74A(4) of the Water Act to reflect the closure of the NWC. Subsection 74A(4) provides that the Minister may seek the NWC’s advice when considering whether to make or revoke a determination that a Basin State has applied the NWI risk assignment framework under state legislation. Determinations must be made prior to the Basin Plan first having taken effect.

26.               Determinations have been made for only two Basin States (New South Wales and Queensland). No more determinations can be made under this section following the commencement of the Basin Plan in November 2012. The section has a limited ongoing operation because it is possible for a determination to be revoked. There is no current intention to revoke either determination, and the Minister can seek advice if necessary and does not require a statutory power to do so.

Item 6 - Part 3

27.               This item repeals Part 3 of the Water Act and substitutes a new Part 3 providing for the referral of matters to the PC for inquiry. The new Part will provide the PC with responsibility for undertaking future triennial assessments of progress toward implementing the NWI and five-yearly audits of implementation of the Basin Plan and water resource plans accredited under the Water Act. These functions were formerly undertaken by the NWC.

28.               The matters that may be referred to the PC under the new Part 3 are taken to be matters relating to industry, industry development and productivity under paragraph 6(1)(a) of the Productivity Commission Act 1998 .

Productivity Commission inquiry - Basin Plan and water resource plans

29.               The new Part 3 will provide for the PC to undertake, on a five-yearly basis, the inquiry into implementation of the Basin Plan and water resource plans.

30.               Item 6 inserts new section 87, which requires the Productivity Minister to refer the matter of the effectiveness of the Basin Plan and water resource plans to PC. The Productivity Minister must refer the matter to the PC during the 5-year period ending on 31 December 2018, reflecting the fact that the NWC’s initial Basin Plan assessment was conducted in 2013.

31.               To allow for ongoing assessment of Basin Plan implementation, new subsection 87(2) requires the Productivity Minister to refer the matter to the PC during the 5-year period following the completion of the PC’s most recent inquiry.

32.               The Productivity Minister’s referral must specify the 5-year period in which the referral occurs as the period within which the PC must submit its report on the inquiry to the Productivity Minister. The effect of this is that the inquiry must be completed and report submitted to the Productivity Minister within the five year period specified.

33.               Once the inquiry has been referred to the PC, the PC Chair must establish a stakeholder working group in accordance with the requirements of new section 89 (as detailed below).

34.               The Bill also retains the requirement in the current provisions of the Water Act for the Basin Plan inquiry reports to be provided to the Murray-Darling Basin Authority (Authority) and Basin States as defined by subsection 4(1) of the Water Act. This will ensure that the Authority and Basin States remain appraised of progress toward implementation of the Basin Plan and opportunities for strengthening work toward implementation.

35.               A copy of the report will also be provided to the Commonwealth Minister with portfolio responsibility for water (Water Minister) as part of the PC’s usual practices.

Productivity Commission inquiry - National Water Initiative

36.               The new Part 3 will provide for the PC to undertake, on a triennial basis, assessments of progress by NWI parties toward achieving the NWI outcomes and objectives. The assessments are designed to comprehensively assess progress toward implementing the NWI and make recommendations on actions that NWI parties might take to better achieve national water reform objectives and outcomes. Consequently, it is important for the PC’s report on the inquiry to continue to be provided to the Council of Australian Governments (COAG) and relevant COAG subcommittees to ensure that all NWI parties remain appraised of the implementation of the NWI and opportunities to strengthen its implementation.

37.               Item 6 inserts new section 88, which requires the Productivity Minister to refer the matter of the progress of parties to the NWI towards achieving the objectives and outcomes of the NWI within the timelines required by the NWI. In conducting an inquiry under new section 88, the PC must have regard to the objectives and outcomes provided for in clause 23 of the NWI. The matter must be referred during the 3-year period ending on 31 December 2017.

38.               As part of the referral, the Productivity Minister must require the PC to make recommendations on actions that the parties to the NWI might take to better achieve NWI outcomes and objectives.

39.               To allow for ongoing assessment of NWI progress, new section 88 requires the Productivity Minister to refer the matter for inquiry during the 3-year period following the completion of the PC’s most recent inquiry.

40.               The Productivity Minister’s referral to the PC must specify the 3-year period in which the referral occurs as the period within which the PC must submit its report on the inquiry to the Productivity Minister. The effect of this is that the inquiry must be completed and a report submitted to the Productivity Minister within the three year period specified.

41.               Once the matter has been referred to the PC for inquiry, the PC Chair must establish a stakeholder working group in accordance with the requirements of new section 89 (as detailed below).

42.               New subsection 88(4) requires the PC to give a copy of the report to COAG and to any COAG subcommittee that deals with matters relating to water. The report is required to be provided to these parties, after it has been provided to the Productivity Minister but before it is tabled in Parliament. A copy of the report will also be provided to the Water Minister as part of the PC’s usual practices.

New section 89 - Stakeholder Working Group

43.               New section 89 will be inserted into Part 3 of the Water Act. New subsection 89(1) requires a stakeholder working group to be established for each referred matter (that is, for each matter referred to the PC for inquiry under new sections 87 and 88.

44.               New subsection 89(2) provides that a stakeholder working group for a referred matter:

a.      is to exchange information and views on the referred matter or any issues relevant to it; and

b.      may provide advice to the PC on the referred matter or any issues relevant to it.

45.               New subsection 89(3) provides that a stakeholder working group for a referred matter is to consist of such persons appointed by the Chair of the Productivity Commission who are representative of any:

a.      agricultural, environmental, industry, Indigenous or urban water body. An agricultural body encompasses a reference to both agricultural and irrigated agricultural bodies; or

b.      other body with an interest in an interest in the referred matter.

46.               New paragraph 89(4)(a) provides that the Chair of the Productivity Commission may determine any allowances that are payable to a member of a stakeholder working group in relation to his or her contribution as a member of the stakeholder working group, subject to new subsection 89(5). It is anticipated that allowances would only be paid to members of the stakeholder working group in exceptional circumstances.

47.               New paragraph 89(4)(b) provides that the Chair of the Productivity Commission will also be able to determine any other matter relating to the functioning of a stakeholder working group on a case by case basis for each inquiry, for instance, the terms of reference of the group and the duration of its operation, subject to new subsection 89(6).

48.               New subsections 89(5) and 89(7) provide that a member of a stakeholder working group is not to be paid any remuneration in relation to his or her contribution as a member of the stakeholder working group despite the provisions of the Remuneration Tribunal Act 1973 , and that membership of a stakeholder working group is not a public office within the meaning of that Act.

49.               New subsection 89(6) provides that the stakeholder working group must meet at least twice prior to the report being submitted to the Productivity Minister in respect of an inquiry referred to the PC.

Part 3 - Transitional provisions



Item 7 - Definitions

50.               This item sets out the definitions used in this Part.  

Item 8 - Transfer of records to the Department

51.               This item provides that any records or documents that were in the possession of the NWC immediately before the transition time (the date on which this Part commences) will be transferred to the Department.

Item 9 - Transfer of Ombudsman investigations

52.               This item sets out how outstanding complaints to the Ombudsman and Ombudsman investigations about NWC actions that are not finally disposed of by the Ombudsman by the transition time are to be dealt with.

53.               After the transition time, the Department will be substituted for the NWC in any unresolved matters in which the NWC was involved before the transition time.

54.               It provides that the Ombudsman Act 1976 will apply as if the NWC’s action had been taken by the Department.

Item 10 - Final annual report - National Water Commission

55.               This item provides for the final NWC annual report.

56.               It requires the Secretary of the Department to prepare and give to the Minister a report on the operations of the NWC during the final reporting period. ‘Final reporting period’ is defined in Item 7 and means the period beginning on 1 July 2014 and ending on the day before the Bill receives the Royal Assent.

57.               The Secretary must submit the report to the Minister within 3 months after the end of the final reporting period. The Minister may grant an extension of time in special circumstances.

58.               The Minister must table the report in each House of the Parliament as soon as is practicable, and the Secretary of the Department must publish the report on the Department’s website as soon as practicable after the report is tabled in the House of Representatives.  

59.               This item ensures that the NWC’s annual reporting obligations to the Minister and to the Parliament are met for the final period of the NWC’s operations.

Item 11 - Transitional rules

60.               This item provides that the Minister may, by legislative instrument, make rules in relation to transitional matters arising out of the amendments and repeals made by this Schedule.