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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.
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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)
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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
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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.
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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
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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.
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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).
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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.
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