Commonwealth Numbered Regulations - Explanatory Statements

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WATER AMENDMENT REGULATIONS 2008 (NO. 1) (SLI NO 204 OF 2008)

 

 

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 204

 

Issued by the Authority of the Minister for Climate Change and Water

 

Water Act 2007

 

Water Amendment Regulations 2008 (No. 1)

 

The provisions of the Water Act 2007 (the Act), which commenced on 3 March 2008, provide for the coordinated management of the water resources of the Murray-Darling Basin.

 

Subsection 256(1) of the Act provides that the Governor‑General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The purpose of the Regulations is to set out the process that the Minister must follow when making water charge and water market rules.

 

Subsection 93(5) of the Act provides that the regulations must provide for the process that the Minister is to follow in making water charge rules. Water charge rules are legislative instruments that relate to the rules, terms and conditions and determination of regulated water charges, including fees payable to irrigation infrastructure operators, bulk water charges and water planning and water management charges. The Water Regulations 2008 (the Principal Regulations) do not currently set out such a process.

 

Subsection 98(4) of the Act provides that the regulations must provide for the process that the Minister is to follow in making water market rules. Water market rules are legislative instruments that relate to the actions of irrigation infrastructure operators and seek to free up the trade of water access rights within the Murray-Darling Basin by ensuring that policies or administrative requirements of irrigation operators do not represent a barrier to trade. The Principal Regulations do not currently set out such a process.

 

Section 92 sets out the basis on which the Minister for Climate Change and Water (the Minister) may make water charge rules, the legal nature of the rules and the matters the water charge rules may cover. The water charge rules must contribute to achieving the Basin water charging objectives and principles set out in Schedule 2 to the Act. Section 97 sets out the basis on which the Minister may make water market rules, the legal nature of the rules and matters the water market rules may cover. The water market rules must contribute to achieving the Basin water market and trading objectives and principles set out in Schedule 3 to the Act.

 

The Minister is required to ask the Australian Competition and Consumer Commission (ACCC) for advice prior to making water charge and water market rules pursuant to subsections 93(1) and 98(1) of the Act respectively.

 

The Regulations provide that if the Minister is satisfied that the ACCC has undertaken the required consultations with the relevant State Ministers for each Basin State, infrastructure operators within the Murray-Darling Basin and the public, the Minister is not required to undertake separate consultation. If the Minister is not so satisfied, the Minister is required to undertake consultation with the same stakeholders. The Regulations therefore ensure that relevant State Ministers for each Basin State, infrastructure operators within the Murray-Darling Basin and the public are consulted and that the minimum specified consultative process has been met either by the ACCC or the Minister.

 

The Department undertook significant consultation on these Regulations. Letters were sent to each of the Murray-Darling Basin State Governments and 51 key industry and conservation stakeholders inviting them to provide comment on the proposed Regulations. A media statement was released on the Minister’s website, a notice placed on the Departmental website and advertisements placed in 3 regional agribusiness newspapers and one national newspaper inviting comment from interested parties. 11 submissions were received providing comment on the proposed Regulations and minor amendments were made.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

These Regulations commenced the day after they were registered on the Federal Register of Legislative Instruments.


2

ATTACHMENT

 

Water Amendment Regulations 2008 (No. 1)

 

The details of the Regulations are:

 

Part 1 - Preliminary

 

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Water Amendment Regulations 2008 (No. 1).

 

Regulation 2 – Commencement

This regulation provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 – Amendment of Water Regulations 2008

This regulation provides that Schedule 1 amends the Water Regulations 2008.

 

Schedule 1 – Amendments

 

Item 1 – After Part 1

This item inserts a new Part 4 (Water charge rules and water market rules) as follows:

 

Division 4.1 – Water Charge Rules

 

Subdivision 4.1.1 – Purpose of Division

 

Regulation 4.01 – Purpose of Division

This regulation specifies that the Division is made for the purposes of section 93 and section 256 of the Water Act 2007 (the Act).

 

Subdivision 4.1.2 – ACCC advice

 

Regulation 4.02 – Minister to request ACCC advice

Subsection 93(1) of the Act requires the Minister to ask the ACCC for advice about water charge rules that the Minister proposes to make. The purpose of this regulation is to set out requirements that relate to the Minister asking the ACCC for advice. In requesting the advice the Minister may ask the ACCC to provide draft rules, must provide the ACCC with a specific date by which the advice must be provided and may request detailed information regarding any consultation undertaken in the course of it preparing its advice. The Minister may then adopt any rules so provided, with or without variation, or may develop rules having regard to the ACCC’s advice.

 

 

 

 

 

Subdivision 4.1.3 – Consultation for amendments and revocations of a minor or technical nature

 

Regulation 4.03 – Consultation for amendments and revocations of a minor or technical nature

In circumstances where the Minister determines, after receiving advice from the ACCC that the proposed rules, amendments or revocations are of a minor or technical nature, this regulation sets out the consultation process that must be undertaken by the Minister. Minor or technical amendments would include amendments to improve the drafting of the rules and to update references, and incidental amendments which do not implement any significant change in the policy underlying the rules. The process includes inviting the relevant State Minister for each Basin State, infrastructure operators within the Murray-Darling Basin and the public to make written submissions on the proposed rules, amendments or revocations. The Minister must give each group a minimum of 4 weeks to provide the submission.

 

Subdivision 4.1.4 – Publication of rules

 

Regulation 4.04 – Publication of proposed water charge rules

The purpose of this regulation is to require the Minister to publish a notice detailing the proposed water charge rules prior to proceeding with a proposal to make, amend or revoke water charge rules, and to prescribe the process for doing so. It specifies information that must be published on the Department’s Internet site and information that must be included in a notice to be published in a national newspaper and an agribusiness focussed newspaper in each Basin State. It also specifies the timeframes for publishing the notices prior to implementing the water charge rules.

 

Subdivision 4.1.5 - Consultations

 

Regulation 4.05 – Minister must consult unless ACCC consults

The purpose of this regulation is to prescribe that where regulation 4.03 does not apply, that is to say, where a proposal has been made to make, amend or revoke water charge rules which are not determined by the Minister to be of a minor or technical nature, the Minister must undertake a consultation process as required by regulation 4.06. However, if the ACCC’s advice includes draft water charge rules and the Minister intends to adopt, or substantially adopt, these rules and the Minister is satisfied that the ACCC has already undertaken consultations described by this regulation, then the Minister is not required to undertake a separate consultation process.

 

Regulation 4.06 – Consultation by the Minister

The purpose of this regulation is to prescribe the consultation process that must be undertaken when neither regulation 4.03 nor regulation 4.05 applies, that is to say where the proposal to make, amend or revoke water charge rules is not determined by the Minister to be of a minor or technical nature and:

Where this regulation does apply, the Minister must undertake a consultation process that ensures that the relevant State Minister for each Basin State, infrastructure operators within the Murray-Darling Basin and the public all have the opportunity to make written submissions about the proposed rules.

 

Regulation 4.07 – Further consultation

The purpose of this regulation is to allow the Minister to undertake any consultation when making, amending or revoking water charge rules, in addition to the consultation required under the Regulations.

 

Regulation 4.08 – Further ACCC advice

The purpose of this regulation is to permit the Minister to request further advice from the ACCC regarding a proposal to make, amend or revoke water charge rules and to prescribe the process that the Minister is to follow in doing so. The Minister may request further advice where the Minister is considering departing from the ACCC’s previous advice provided in relation to the proposal.

 

Subdivision 4.1.6 – Disclosure of information

 

Regulation 4.09 – Minister may disclose to ACCC written submissions

The purpose of this regulation is to allow the Minister to disclose to the ACCC any written submissions the Minister receives regarding a proposal to make, amend or revoke water charge rules, or any information in such a submission (including confidential information). In addition, the regulation sets out the circumstances in which the Minister must require the ACCC not to publish or disclose a written submission, or information contained in a submission.

 

Regulation 4.10 – Minister may publish written submissions unless confidential

The purpose of this regulation is to specify the circumstances in which the Minister can publish a submission (or part of a submission) received in relation to the proposal to make, amend or revoke water charge rules. Where a claim is made that information within a submission is confidential and the Minister agrees, then the Minister may publish the submission with the confidential information omitted.

 

Regulation 4.11 – Minister disagrees with claim that information is confidential

The purpose of this regulation is to prescribe the process that the Minister must undertake where the Minister disagrees with a claimant’s claim that the written submission contains confidential information. The Minister must provide the claimant with a notice inviting them to withdraw their claim of confidentiality. If the claimant does not withdraw their claim of confidentiality, the Minister must return the information to which the claim relates and not have regard to the information when considering the proposal to make, amend or revoke water charge rules. The Minister can have regard to the balance of the submission, and can publish this.

 

Regulation 4.12 – Minister may publish records provided by ACCC

The purpose of this regulation is to specify that the Minister may publish records that the ACCC provides to the Minister pertaining to the ACCC’s consultation process, with the exception of those records the ACCC identifies as being records that the ACCC itself is not permitted to publish.

 

Subdivision 4.1.7 – Failure to comply

 

Regulation 4.13 – Consequence of failure to comply with a requirement in this Division

This regulation specifies that a failure to comply with a requirement of this Division will not affect the validity or enforceability of the water charge rules. The purpose, and effect, of this regulation is to prevent administrative or procedural oversights from invalidating the water charge rules after they have been made. The Minister is still obliged to comply with the Regulations.

Division 4.2 – Water Market Rules

 

Subdivision 4.2.1 – Purpose of Division

 

Regulation 4.14 – Purpose of Division

This regulation specifies that the Division is made for the purposes of sections 98 and 256 of the Act.

 

Subdivision 4.2.2 – ACCC advice

 

Regulation 4.15 – Minister to request ACCC advice

Subsection 98(1) of the Act requires the Minister to ask the ACCC for advice about water market rules that the Minister proposes to make. The purpose of this regulation is to set out requirements that relate to the Minister asking the ACCC for advice. In requesting the advice the Minister may ask the ACCC to provide draft rules, must provide the ACCC with a specific date by which the advice must be provided and may request detailed information regarding any consultation undertaken by the ACCC in the course of it preparing its advice. The Minister may then adopt any rules so provided, with or without variation, or may develop rules having regard to the ACCC’s advice.

 

Subdivision 4.2.3 – Consultation for amendments and revocations of a minor or technical nature

 

Regulation 4.16 – Consultation for amendments and revocations of a minor or technical nature

In circumstances where the Minister determines, after receiving advice from the ACCC that the proposed rules, amendments or revocations are of a minor or technical nature, this regulation sets out the consultation process that must be undertaken by the Minister. Minor or technical amendments would include amendments to improve the drafting of the rules and to update references, and incidental amendments which do not implement any significant change in the policy underlying the rules. This process includes inviting the relevant State Minister for each Basin State, infrastructure operators within the Murray-Darling Basin and the public to make written submissions on the proposed rules, amendments or revocations. The Minister must give each group a minimum of 4 weeks to provide the submission.

 

 

 

 

 

Subdivision 4.2.4 – Publication of rules

 

Regulation 4.17 – Publication of proposed water market rules

The purpose of this regulation is to require the Minister to publish a notice detailing the proposed water market rules prior to proceeding with a proposal to make, amend or revoke water market rules, and to prescribe the process for doing so. It specifies information that must be published on the Department’s Internet site and information that must be included in a notice to be published in a national newspaper and an agribusiness focussed newspaper in each Basin State. It also specifies the timeframes for publishing the notices prior to implementing the water market rules.

 

Subdivision 4.2.5 - Consultations

 

Regulation 4.18 – Minister must consult unless ACCC consults

The purpose of this regulation is to prescribe that where regulation 4.16 does not apply, that is to say where a proposal has been made to make, amend or revoke water market rules which are not determined by the Minister to be of a minor or technical nature, the Minister must undertake a consultation process as required by regulation 4.19. However, if the ACCC’s advice includes draft water market rules and the Minister intends to adopt, or substantially adopt, these rules and the Minister is satisfied that the ACCC has already undertaken consultations described by this regulation, then the Minister is not required to undertake a separate consultation process.

 

Regulation 4.19 – Consultation by the Minister

The purpose of this regulation is to prescribe the consultation process that must be undertaken when neither regulation 4.16, nor regulation 4.18 applies, that is to say where the proposal to make, amend or revoke water market rules is not determined by the Minister to be of a minor or of a technical nature and:

Where this regulation does apply, the Minister must undertake a consultation process that ensures that the relevant State Minister for each Basin State, infrastructure operators within the Murray-Darling Basin and the public all have the opportunity to make written submissions about the proposed rules.

 

Regulation 4.20 – Further consultation

The purpose of this regulation is to allow the Minister to undertake any consultation when making, amending or revoking water market rules, in addition to the consultation required under the Regulations.

 

Regulation 4.21 – Further ACCC advice

The purpose of this regulation is to permit the Minister to request further advice from the ACCC regarding a proposal to make, amend or revoke water market rules and to prescribe the process that the Minister is to follow in doing so. The Minister may request further advice where the Minister is considering departing from the ACCC’s previous advice provided in relation to the proposal.

 

Subdivision 4.2.6 – Disclosure of information

 

Regulation 4.22 – Minister may disclose to ACCC written submissions

The purpose of this regulation is to allow the Minister to disclose to the ACCC any written submissions the Minister receives regarding a proposal to make, amend or revoke water market rules, or any information in such a submission (including confidential information). In addition, the regulation sets out the circumstances in which the Minister must require the ACCC not to publish or disclose a written submission, or information contained in a submission.

 

Regulation 4.23 – Minister may publish written submissions unless confidential

The purpose of this regulation is to specify the circumstances in which the Minister can publish a submission (or part of a submission) received in relation to the proposal to make, amend or revoke water market rules. Where a claim is made that information within a submission is confidential and the Minister agrees, then the Minister may publish the submission with the confidential information omitted.

 

Regulation 4.24 – Minister disagrees with claim that information is confidential

The purpose of this regulation is to prescribe the process that the Minister must undertake where the Minister disagrees with a claimant’s claim that the written submission contains confidential information. The Minister must provide the claimant with a notice inviting them to withdraw their claim of confidentiality. If the claimant does not withdraw their claim of confidentiality, the Minister must return the information to which the claim relates and not have regard to the information when considering the proposal to make, amend or revoke water market rules. The Minister can have regard to the balance of the submission, and can publish this.

 

Regulation 4.25 – Minister may publish records provided by ACCC

The purpose of this regulation is to specify that the Minister may publish records that the ACCC provides to the Minister pertaining to the ACCC’s consultation process, with the exception of those records the ACCC identifies as being records that the ACCC itself is not permitted to publish.

 

Subdivision 4.2.7 – Failure to comply

 

Regulation 4.26 – Consequence of failure to comply with a requirement in this Division

This regulation specifies that a failure to comply with a requirement of this Division will not affect the validity or enforceability of the water market rules. The purpose, and effect, of this regulation is to prevent administrative or procedural oversights from invalidating the water market rules after they have been made. The Minister is still obliged to comply with the Regulations.

 


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