Federal Register of Legislation - Australian Government

Primary content

Rules/Other as made
These Rules regulate the publication of information for water planning and management charges in the Murray-Darling Basin as defined under section 91 of the Water Act 2007.
Administered by: Agriculture
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 67
Registered 23 Jul 2010
Tabling HistoryDate
Tabled HR28-Sep-2010
Tabled Senate28-Sep-2010
To be repealed 01 Jul 2020
Repealed by Water Charge Amendment Rules 2019

EXPLANATORY STATEMENT

 

Water Act 2007

 

Water Charge (Planning and Management Information) Rules 2010

 

Background

 

Water planning and water management activities are in broad terms those activities that are undertaken by or on behalf of governments to ensure the long-term sustainability of water resources and to plan for and manage the current and future use of those resources.

 

Water planning and water management activities vary significantly in scope and objective and can be classified into the following categories:

·        Water reform, strategy and policy (including activities relating to the development of intergovernmental agreements, broad strategies for managing water and overarching statutory instruments)

·        Water planning (including activities relating to water resource planning and environmental and ecosystem management planning)

·        Water management (including activities relating to measures to improve water use, and the construction of works and environmental works to remediate environmental impacts arising from water use)

·        Water monitoring and evaluation (including activities relating to the monitoring and evaluation of water resources and water dependent ecosystems)

·        Information management and reporting (including activities relating to water resource accounting and publication of water resource information)

·        Water administration and regulation (including activities relating to the administration of entitlements and permits, the development of entitlement frameworks, the administration of water trading arrangements, business administration, and the administration of water metering arrangements)

·        Water industry regulation (including activities relating to the oversight of water businesses).

 

Examples of water planning and management activities include:

·        the facilitation and administration of water trading

·        the development of catchment scale water plans and rules for water sharing

·        works to address or remediate the impact of water use

·        the monitoring and evaluation of water quality and environmental health

·        reviews of water business operations to ensure compliance with statutory requirements.

 

Historically, State and Territory governments have been responsible for undertaking water planning and water management activities within their respective jurisdictions, usually funding these activities by a combination of government contributions and charges on water users.

In the Murray-Darling Basin (Basin), governments impose different types of charges ranging from broad-based levies to fees for service. Not all governments carry out or charge for the same activities, nor do they use the same type or structure of charges. Information currently available on charges for water planning and water management activities in the Basin is limited and inconsistent.

 

Under the National Water Initiative (NWI), the Commonwealth, States and Territories have committed to achieve pricing transparency and cost recovery for water planning and management.

 

Purpose of the Rules

 

The Water Act 2007 (Water Act) provides for the Minister for Climate Change, Energy Efficiency and Water to make rules regulating certain types of water charges in the Basin, including charges for water planning and water management activities.

 

Water charge rules must contribute to achieving the Basin water charging objectives and principles set out in Schedule 2 of the Water Act, which are based on best practice water pricing agreements under the NWI. Water charging objectives broadly seek to:

a)      promote the economically efficient and sustainable use of water resources, water infrastructure assets and government resources devoted to the management of water resources;

b)      ensure sufficient revenue streams to allow efficient delivery of the required services;

c)      facilitate the efficient functioning of water markets;

d)      give effect to the principle of user-pays and achieve pricing transparency in respect of water storage and delivery in irrigation systems and cost recovery for water planning and management; and

e)      avoid perverse or unintended pricing outcomes.

 

For water planning and management, water charging principles prescribe that:

(1)   all costs associated with water planning and management must be identified, including the costs of underpinning water markets (such as the provision of registers, accounting and measurement frameworks and performance monitoring and benchmarking);

(2)   the proportion of costs that can be attributed to water access entitlement holders is to be identified consistently with the principles set out in subclauses (3) and (4);

(3)   water planning and management charges are to be linked as closely as possible to the costs of activities or products;

(4)   water planning and management charges are to exclude activities undertaken for the government (such as policy development and ministerial or parliamentary services); and

(5)   States and Territories are to report publicly on cost recovery for water planning and management annually. The reports are to include:

(a) the total cost of water planning and management and

(b) the proportion of the total cost of water planning and management attributed to water access entitlement holders and the basis on which this proportion is determined.

 

The Water Charge (Planning and Management Information) Rules 2010 (the Rules) advance the Basin water charging objective of achieving pricing transparency, by requiring persons determining charges for water planning and water management activities to publish information about these charges.

 

The publication of this information will make information on water planning and management charges more widely and consistently available across Basin states. It will also result in greater, more direct disclosure of both the costs of water planning and water management activities for which charges are levied, and the link between those costs and the charges imposed on water access entitlement holders and other water users.

 

Authority

 

Subsection 92(1) of the Water Act provides that the Minister for Climate Change, Energy Efficiency and Water may make water charge rules, which relate to regulated water charges. Regulated water charges include charges for water planning and management activities.

 

The Rules relate only to regulated charges for water planning and water management activities, and do not apply to charges in respect of urban water supply activities beyond the point at which the water has been removed from a Basin water resource.

 

Details of the Rules are set out in the Attachment.

 

Process

 

The process for making water charge rules is set out in section 93 of the Water Act. In particular, section 93 requires the Minister to ask the Australian Competition and Consumer Commission (ACCC) for advice about water charge rules the Minister proposes to make and to have regard to that advice.

 

Section 93 also provides for regulations to set out the detailed process that the Minister must follow in making water charge rules. The Water Regulations 2008 (Regulations) set out this detailed process. Regulation 4.02 sets out the process the Minister must follow in requesting the ACCC’s advice.

 

The Minister requested the ACCC’s advice in December 2007. At the same time the Minister requested the ACCC to provide draft rules as part of its advice. The ACCC provided its final advice to the Minister in July 2009.

 

Consultation

 

Under regulation 4.05 of the Water Regulations 2008, the Minister must undertake consultation on draft water charge rules unless the Minister is satisfied that the ACCC has already undertaken the required consultation.

 

The ACCC undertook a comprehensive three stage consultation process. The first stage involved publication of an issues paper, the second stage a position paper outlining the ACCC’s initial policy position, and the third stage was the release of a draft set of rules and advice. Additionally, the ACCC undertook consultation meetings with stakeholders.

 

Under the Regulations, the Minister must also undertake further consultation if draft water charge rules, in the Minister’s opinion, are not substantially the same as those provided by the ACCC. The Rules are substantially the same as the draft rules which the ACCC provided to the Minister together with its advice.

 

Enforcement

 

Section 137 of the Water Act sets out the role of the ACCC as the sole enforcement agency for contraventions of the Rules.

 

Other

 

Further explanatory material is available in the Water Planning and Management Charge Rules Final Advice, July 2009 provided by the ACCC and available at www.environment.gov.au/water.

 

The Rules are a legislative instrument for the purpose of the Legislative Instruments Act 2003.

 

The Rules commence on the day after they are registered.


ATTACHMENT

 

DETAILS OF THE WATER CHARGE (PLANNING AND MANAGEMENT INFORMATION) RULES 2010

 

1.      Name of Rules

Rule 1 provides that the title of the Rules is the Water Charge (Planning and Management Information) Rules 2010.

 

2.      Commencement

Rule 2 provides that the Rules commence on the day after they are registered.

 

Paragraph 5(3)(a) provides for a transitional period for publication of information about a regulated charge. The transitional period applies if the regulated charge takes effect before the commencement of the rules. The term transitional period is defined in rule 4.

 

3.      Objects

Rule 3 sets out the objects of the Rules.

 

4.      Definitions

Rule 4 provides for definitions of terms used in the Rules, including a definition of regulated charge, and a definition for the transitional period before the rules are enforceable.

 

5.      Publication of information about regulated charges

Rule 5 requires information to be published by the person determining the regulated charge. The person determining the charge may be an individual, such as a Minister or Secretary of a Department, or may be a government agency, Tribunal or other entity, depending on who has the statutory, contractual or other authority for making the decision about the amount of the charge.

 

Subrule 5(2) sets out the information relating to the regulated charge that must be published.

 

Paragraph 5(2)(a) requires publication of the name or a description of the regulated charge. If a regulated charge does not have a name, a description of the regulated charge must be published.

 

Paragraph 5(2)(b) requires publication of the amount of the regulated charge or details of rates, fixed and variable components and all other details necessary to determine the amount.

 

The amount can be expressed in dollars or fee units. Fee units are used in some Basin States to set fees and charges under legislation. The amount of the fee unit is set in accordance with a process established under State legislation: for example, in Victoria, the Treasurer sets the value of a fee unit in accordance with a process set out in the Monetary Units Act 2004 (Vic).

 

Paragraph 5(2)(c) requires publication of the legislative, contractual or other authority for the charge.

 

Paragraph 5(2)(d) requires publication of a description of the process applied to determine the regulated charge. A description of the process may include any matter that was relevant to the determination of the regulated charge but must include an explanation of any cost allocation principles that were applied in determining the charge and, if consultation, a review or audit was undertaken of the regulated charge before it was determined, a description of that process and a summary of its outcome.

 

Paragraph 5(2)(e) requires publication of the class of persons by whom the regulated charge is payable.

 

Paragraph 5(2)(f) requires publication of the person to whom, or agency to which, the regulated charge is payable. The person determining the charge may not be the same entity as the person or agency imposing the charge, and some charges may be collected on behalf of the charging agency by another agency.

 

Paragraph 5(2)(g) requires publication of information about when the regulated charge is payable, including details of payment by instalments if relevant.

 

Paragraph 5(2)(h) requires publication, if applicable, of the water resource, catchment or district, and the water resource plan or other plan, to which the regulated charge relates.

 

Paragraph 5(2)(i) requires publication, if applicable, of the class of water access right, water delivery right or irrigation right to which the regulated charge relates.

 

Paragraph 5(2)(j) requires publication of a description of the water planning and water management activity or activities to which the regulated charge relates.

 

The information to be published includes details of the financial year or other period during which the activities are being carried out; the operating, capital and corporate services costs of the activities for the relevant period; whether those costs have been subject to consultation, review or audit; and a description of the relationship between the costs of the activities and the calculation of the regulated charge.

 

The cost information that will be published under the rules will depend in part on whether the charge recovers the costs of activities that have already been undertaken or whether it relates to activities that are proposed to be undertaken. For this reason, the rules require an indication of whether the cost information relates to actual or estimated costs.

 

Sub-paragraph 5(2)(j)(iv) requires identification of whether or not there is a direct relationship between the costs incurred in carrying out the identified water planning and water management activities and the amount of the regulated charge.

 

Paragraph 5(2)(k) enables the person determining the regulated charge to publish additional information under subrule 5(2) if the person considers that further information is necessary or desirable to explain the regulated charge. For example, some regulated charges will also recover the costs of activities that are not water planning and water management activities, and it may be necessary to provide information indicating the extent to which the charge relates to those other activities. Publication of the additional information is within the discretion on the person determining the charge.

 

Subrule 5(3) sets out when the information relating to a regulated charge must be published. Information about regulated charges that took effect before the commencement date and relate to a period that ends after the transitional period must be published before the end of the transitional period. Information on regulated charges that took effect on or after the commencement date but before the end of the transitional period must be published no later than 3 months after the date on which the charge takes effect or the end of the transitional period, whichever is later. Information on a regulated charge that takes effect on a date after the transitional period must be published before the regulated charge takes effect. A change in the name, description or amount of a regulated charge after the transitional period must be published before the change takes effect.

 

Subrule 5(4) provides that the information set out in subrule (2) relating to the regulated charge must, while the regulated charge is current, be published in the Australian Government Gazette or on the internet site of either the person that determined the regulated charge or the agency to which the regulated charge is payable. A regulated charge is current if it has been determined and the determination has not expired or there has been no change to the regulated charge.

 

The information must be published with a statement that the information is published in accordance with these rules. This subrule also requires the information and the statement, while the regulated charge is current, to be made available upon request, during business hours at either the principal place of business of the person that determined the regulated charge or the person or agency to which the regulated charge is payable.

 

Subrule 5(5) provides that, in addition to the publication requirements in subrule 5(4), the person determining the charge must publish, or cause to be published, a notice in a newspaper circulating generally in the area where any person liable to pay the charge resides or carries on a business. If a newspaper does not circulate generally in these areas, the notice must be published in newspapers that circulate generally in each part of the area that the person liable to pay the charge resides or carries on a business. The notice must be to the effect that the information is published and must describe where the information is available.

 

Subrule 5(6) provides that if a request is made for a copy of the published information, the person determining the charge must provide, or cause to be provided, a copy of the information as soon as possible after the request is made.