Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the law relating to the management of water resources in the Australian Capital Territory, to amend the Water Act 2007, and for related purposes
Administered by: PMC (DCC)
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 19 Nov 2009
Introduced HR 19 Nov 2009

 

2008 - 2009

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

AUSTRALIAN CAPITAL TERRITORY AND OTHER LEGISLATION AMENDMENT (WATER MANAGEMENT) BILL 2009

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Climate Change and Water,

Senator the Honourable Penny Wong)


 

AUSTRALIAN CAPITAL TERRITORY AND OTHER LEGISLATION AMENDMENT (WATER MANAGEMENT) BILL 2009

GENERAL OUTLINE

1.                  The Australian Capital Territory and Other Legislation Amendment (Water Management) Bill 2009 (the Bill) aims to continue improvement in governance of water within the Murray-Darling Basin, by making the appropriate level of government responsible for managing water in the Australian Capital Territory (ACT) on a day-to-day basis. It will ensure that the ACT Government has the power to manage all water abstraction within the ACT, continuing the improvement of water management by Commonwealth agencies and clarifying minor aspects of the Water Act 2007 and related legislation.

2.                  The primary purpose of the Bill is to amend the Australian Capital Territory (Planning and Land Management) Act 1988 (the PALM Act) which regulates the management of land in the ACT.  The Bill will amend this Act so the abstraction of water on National Land is no longer managed by the Commonwealth Government (abstraction of water on Territory land, other than by Commonwealth bodies, is already managed by the ACT). Rather the abstraction of water on National Land and by Commonwealth agencies throughout the ACT will be managed by the government of the ACT under the Water Resources Act 2007 (ACT), following the necessary amendments of that Act by the ACT Legislative Assembly, and associated amendments to the Australian Capital Territory (Self-Government) Regulations 1989 (Cth) and the National Land Ordinance 1989 (Cth). 

3.                  The Bill also amends the Canberra Water Supply (Googong Dam) Act 1974 (the Googong Dam Act) to ensure that the ACT Executive has the necessary powers to fully manage the surface waters of the Googong Dam under the ACT Water Resources Act.

4.                  Thirdly, the Bill amends the Water Act 2007 (the Water Act).  The definition of ‘express amendment’ as it applies to the definition of ‘referring State’ is amended to conform with the equivalent definition in the State laws that refer legislative power to the Commonwealth to support the enactment of the referred provisions of the Water Act.

5.                  The Bill also amends the Water Act to provide that the water resources of the Googong Dam Area are required to be included in a water resource plan area for which the ACT has responsibility to prepare a water resource plan.

6.                  The Bill also amends the Water Act to ensure that Commonwealth non-environmental use of water in the Murray-Darling Basin, particularly water used by the Department of Defence at its facilities, is taken account of through the Basin Plan.

7.                  The Bill also amends the Water Act to provide that the Basin Plan, and water resource plans prepared by the Murray Darling Basin Authority, may make provision for a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing at a particular time or as in force from time to time.

8.                  Finally, the Bill makes minor amendments to the water related provisions of the Trade Practices Act 1974 and to the Water Amendment Act 2008 to clarify some minor ambiguities in the intended operation of those provisions. 

 

FINANCIAL IMPACT STATEMENT

9.                  The cost associated with establishing entitlements to water used by Commonwealth agencies or private entities on Commonwealth land will be borne by the Commonwealth.  The majority of on-going costs will also be borne by the Commonwealth. Two private entities will bear costs as a result of this Bill, with a total combined cost, at current prices, of under $50,000 per annum.

NOTES ON INDIVIDUAL CLAUSES

Clause 1 – Short Title

10.              This is a formal provision setting out how the Act is to be cited, that is the Australian Capital Territory and Other Legislation Amendment (Water Management) Act 2009.

Clause 2 Commencement

11.              This clause provides a table that sets out the commencement dates of the various sections in, and schedules to, the Bill.

12.              This Bill relies in part on the ACT parliament passing amendments to their legislation. The timing set out in this clause is important to ensure continuity in legislative coverage. Commencement of the various schedules in the Bill will be proclaimed so as to line up with the commencement of changes to the ACT Water Resources Act 2007.

Clause 3 – Schedule(s)

13.              This clause is the formal enabling provision providing that each Act specified in a Schedule is amended or repealed as set out in that Schedule.

 

Schedule 1 – Amendments to the Australian Capital Territory (Planning and Land Management) Act 1988

 

Item 1 Section 4 – Definitions

14.              Section 4 includes certain definitions of terms used in the PALM Act. This item adds a definition of the term take.  In relation to water, take is defined to have the same meaning as it had in the Water Resources Act 2007 of the Australian Capital Territory at the commencement of this Schedule 1.

 

Item 2 to 4 Section 6 – Functions of the Authority

15.              This amendment inserts s 6(2) which excludes from the National Capital Authority's functions, the function of managing or regulating, or both, the taking of water on National Land. Once this Schedule commences, those functions will be undertaken by the ACT Executive under the Water Resources Act 2007 (ACT).

16.              It should be noted that this exclusion does not limit other functions of the National Capital Authority under the PALM Act that relate to water but do not concern the taking of water. So for example, this exclusion does not limit the requirement in s 12 of the PALM Act that works in designated areas must be approved by the National Capital Authority (see Note 2 inserted by this item).

17.              Further, this exclusion does not limit the National Capital Authority's function of preparing and administering a National Capital Plan under s 6(a) of the PALM Act, nor does it limit the matters that the National Capital Plan may deal with under s 10 of the PALM Act. So, for example, in setting standards for the maintenance and enhancement of the National Capital under paragraph 10(2)(a), the National Capital Plan can set requirements pertaining to the level at which Lake Burley Griffin must be maintained.

 

Item 5 At the end of subsection 29(1) – Administration of Territory Land and National Land

18.              Section 29 vests powers in the ACT Executive (the Executive) to administer Territory land on behalf of the Commonwealth. The insertion of paragraph 29(2)(c) extends the responsibilities of the Executive to include responsibility for the management or regulation, or both, of the taking of water on National Land, reflecting the transfer of this role from the National Capital Authority to the ACT Executive.

 

Item 6 Paragraph 30(2)(a) – Territory Liable as manager

19.              Section 30 establishes that liability for land management under the PALM Act rests with the Territory. Item 6 amends this section to extend Territory liability to include a liability arising from the management or regulation, or both, of the taking of water on National Land in line with the increased responsibilities bestowed on the Territory under this Bill.

 

Schedule 2 – Water Act 2007

 

Item 1 Subsection 18B(9) - (definition of amendment)

20.              This amendment repeals the definition of ‘amendment’ in s 18B(9). The substance of the definition is replicated in the definition of ‘express amendment’ in s 18B(9).

21.              This Item is taken to have commenced on 15 December 2008.

 

Item 2 Subsection 18B(9) - (definition of express amendment)

22.              This amendment adds to the definition of ‘express amendment’ in s 18B(9). The substance of the previous definition of ‘amendment’ (repealed by Item 1 of this Schedule) is inserted into the definition of ‘express amendment’.

23.              This amendment is intended to make the definition of ‘express amendment’ in             s 18B(9) mirror the equivalent definitions in the laws of Queensland, New South Wales, Victoria and South Australia which refer legislative power to the Commonwealth to enact the referred provisions of the Water Act.

24.              This item is taken to have commenced on 15 December 2008.

 

Item 3 Transitional - Referring States

25.               This amendment makes it clear, for the avoidance of any doubt, that New South Wales, Queensland, South Australia and Victoria are taken, for the purposes of the Water Act:

a.         to have been referring states from the time that Items 1 and 2 of this Schedule commence (on 15 December 2008, the date on which the Water Amendment Act 2008 commenced) to the commencement of this item; and

b.         to continue to be referring States at and after the commencement of this item, subject to s 18B.

 

Item 4 Subsection 21(1)

26.              This amendment inserts a note at the end of s 21(1) which refers to subsection 33(4). The note serves as a reminder that the Basin Plan may apply, adopt or incorporate an instrument or other writing as in force or existing at a particular time, or from time to time.

 

Item 5 Subparagraph 21(4)(c)(ii) – General basis on which Basin Plan to be developed

27.              Section 21 sets out the basis on which the Basin Plan is to be developed. Subsection 21(4) requires the Minister and the Authority to take account of, and have regard to, a range of issues and information in developing and adopting the Basin Plan.

28.              This insertion clarifies that the Minister and the Authority must take into account consumptive and other economic uses of water by the Commonwealth, as well as other users, when developing and adopting the Basin Plan.

 

Item 6 Subsection 22(1) (note)

29.              This amendment renames the existing note to subsection 22(1) as Note 1. Note 2 is inserted by Item 7 of this Schedule.

 

Item 7 Subsection 22(1) (after the note)

30.              This amendment inserts a note at the end of s 22(1) which refers to subsection 33(4). The note serves as a reminder that the Basin Plan may apply, adopt or incorporate an instrument or other writing as in force or existing at a particular time, or from time to time.

 


Item 8 Subsection 22(1) (table item 2, column headed "Specific requirements")

31.              This amendment inserts an additional ‘specific requirement’ in item 2 of the table at s 22(1). The additional ‘specific requirement’ makes it clear that the surface waters of the Googong Dam Area are required to be included in a water resource plan area for which the ACT has responsibility to prepare a water resource plan. This requirement reflects the existing arrangements for the management of the Googong Dam Area by the ACT provided for in:

           the Googong Dam Act (which gives effect to the Commonwealth's paramount right to the use and control of certain waters of the Queanbeyan and Molonglo Rivers and their tributaries for the purposes of the ACT, as provided for in the Agreement dated 18 October 1909 made between Australia and the State of New South Wales and set out in the First Schedule to the Seat of Government Acceptance Act 1909‑1973; and

           the lease of 4 September 2008 which the Commonwealth has granted to the ACT over the Googong Dam Area for a term of 150 years

and complements new s 63A, which provides that for the purposes of the Water Act, the surface waters of the Googong Dam Area are to be treated as though they were located in the ACT and not in New South Wales. 

32.              These amendments aim to avoid the administrative complexity that would arise if the existing requirement under the Water Act for NSW to prepare a water resource plan for the Googong Dam Area was maintained. It is more efficient for the jurisdiction with management responsibility for a water resource to also have planning responsibility for the resource. In the case of the Googong Dam Area, despite it being located in NSW, the relevant jurisdiction is the ACT.

 

Item 9 At the end of s 33

33.              This item amends s 33 to allow  the Basin Plan to make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as it is in force from time to time (rather than only as in force at a particular point in time). This is contrary to the general presumption in subsection 14(2) of the Legislative Instruments Act 2003.

34.              A capacity to apply, adopt or incorporate matters contained in an instrument or other writing as it is in force from time to time have particular benefits for the making of the Basin Plan. It is possible that the Basin Plan might need to incorporate documents or instruments that are not legislative instruments (for example, guidelines, models or standards) as in force from time to time. The alternative would be to amend the Basin Plan each time a particular instrument was amended, which would not be a practical solution, or to incorporate out-of-date material into the Basin Plan. 

35.              It should be noted that the Basin Plan is a legislative instrument. The Parliament will have the opportunity to consider any provisions in the Basin Plan which apply, adopt or incorporate a particular matter as it is in force from time to time and to object should the Parliament have concerns.

36.              Finally, s 33 (6) ensures that any instrument or other writing applied, adopted or incorporated by regulation will be made publicly available on the Murray Darling Basin Authority’s website.

 

Item 10 - At the end of section 55

37.              This item amends s 55 to allow water resource plans adopted by the Minister under     s 69 to make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as it is in force from time to time (rather than only as in force at a particular point in time). This is contrary to the general presumption in subsection 14(2) of the Legislative Instruments Act 2003.

38.              A capacity to apply, adopt or incorporate matters contained in an instrument or other writing as it is in force from time to time have particular benefits for the making of water resource plans adopted by the Minister under s 69. These plans will be prepared by the Murray Darling Basin Authority, upon request by the Minister under s 68. Such plans may need to incorporate documents or instruments that are not legislative instruments (for example, guidelines, models or standards) as in force from time to time. The alternative would be to amend the plans each time a particular instrument was amended, which would not be a practical solution, or to incorporate out-of-date material into the plans. 

39.              It should be noted that a water resource plan adopted by the Minister under s 69 is a legislative instrument. The Parliament will have the opportunity to consider any provisions in the plan which apply, adopt or incorporate a particular matter as it is in force from time to time and to object should the Parliament have concerns.

40.              Finally, s 55(6) ensures that any instrument or other writing applied, adopted or incorporated by regulation will be made publicly available on the Murray Darling Basin Authority’s website.

 

Items 11, 13-17 At the end of subsection 63(1), 65(2), 68(2), 71(1) and 72(1) – Notes

41.              These items insert notes that refer back to the new s 63A, and serve as a reminder that the surface waters of the Googong Dam Area are to be treated, for the purposes of the Water Act 2007, as though they are located in the ACT.

 

Item 12 After Section 63 – Googong Dam Area to be treated as if located in the Australian Capital Territory

42.              This item inserts a new s 63A. Section 63A provides, for the purposes of the Water Act, that the surface waters of the Googong Dam Area (as defined by the Googong Dam Act) are to be treated as if they are located in the ACT and not located in New South Wales. The policy rationale for this amendment is explained at paragraphs 31 to 32 above.

43.              When the Basin Plan is prepared, it will be required to include the Googong Dam Area in a water resource plan area for which the ACT has responsibility to prepare a water resource plan (see s 22(1), Item 2).

 

Schedule 3 – Canberra Water Supply (Googong Dam) Act 1974

 

Item 1 Section 4 – Functions of the Executive

44.              Section 4 of the Googong Dam Act currently sets out the functions of the ACT Executive in the Googong Dam Area under the Googong Dam Act. These functions are exercised on behalf of the Commonwealth.

45.              The existing section is being moved into s 4(2) and a new s 4(1) is being inserted to provide the ACT Executive, on behalf of the Commonwealth, with the additional functions of managing, protecting and using the water resources of the Googong Dam Area in a way that is consistent with the objects of the ACT Water Resources Act 2007.  This amendment ensures that the Executive of the ACT has the powers it requires under Commonwealth law in order to manage the Googong Dam Area in accordance with the Water Resources Act 2007.

46.              New s 4(1) needs to be read together with s 22(2) of the Australian Capital Territory (Self-Government) Act 1988 (the Self-Government Act) which provides that the ACT Legislative Assembly has the power to make laws with respect to the exercise of powers by the Executive. New s 4(1) confers powers on the Authority to manage, protect and use the water resources of the Googong Dam Area in a way that is consistent with the objects of the ACT Water Resources Act 2007 and the ACT Legislative Assembly can regulate the use of those powers through the Water Resource Act 2007 by virtue of s 22(2) of the Self-Government Act.

 

Schedule 4 – Water Amendment Act 2008

 

Item 1 Item 4 of Schedule 3 – Appointment of the Chief Executive

47.              This amendment clarifies that the Chief Executive Officer of the Murray-Darling Basin Authority is to be taken as having been appointed for a period of 4 years, as from the date of commencement of the Water Amendment Act 2008, which is as of 15 December 2008.

48.              This amendment is not intended to preclude the application of any other provision of the Water Act to the Chief Executive Officer of the Murray Darling Basin Authority.

 

Schedule 5 – Trade Practices Act 1974

 

Item 1 Subsection 25 (1) – Delegation by Commission

49.              This subsection currently allows the Australian Competition and Consumer Commission (ACCC), by resolution, to delegate any of its powers under the Water Act to a single member of the Commission.

50.              This amendment extends this power of delegation to cover the delegation to a single member of the Commission of any of the ACCC's powers under rules made under the Water Act. As was previously the case, the ACCC will not have the power to delegate its power of delegation under s 25(1).

51.              This amendment is necessary because it is rules made under the Water Act, rather than the Water Act itself, which will confer the majority of substantive functions on the ACCC.