Bills Digest no. 72 2009–10
Australian Capital Territory and Other Legislation
Amendment (Water Management) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Australian Capital Territory and Other
Legislation Amendment (Water Management) Bill 2009
Date introduced: 19 November 2009
House: House of
Representatives
Portfolio: Climate Change and Water
Commencement: Various dates as set out in the table in section 2
of the Bill.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The primary purpose of the Bill
is to amend the Australian Capital Territory (Planning and Land
Management) Act 1988 (the PALM Act) so that water abstraction
on National Land is managed by the Australian Capital Territory
(ACT) Government under the relevant territory legislation rather
than the Commonwealth.
The Bill also amends other Acts to improve governance of water
within the Murray-Darling Basin.
In 1901 a decision was made to develop a national capital. The
move was as a direct result of the federation of colonies in
Australia. However, it was not until 1908 that the location of the
capital was decided. The Seat of Government Acceptance Act
1909 (Seat of Government Acceptance Act) provided a statutory
underpinning to an agreement between the Commonwealth and the State
of New South Wales (NSW) that:
- NSW would surrender to the Commonwealth certain lands for the
Territory which would be the seat of government, and
- the right of NSW and its residents to the use and control of
the waters of the Queanbeyan and Molonglo Rivers and their
tributaries to the east of the Goulburn to Cooma Railway would be
subject to, and secondary to, the use and requirements of the
Commonwealth which were declared to be paramount.[1]
At present, the ACT water supply is sourced from the Bendora,
Corin, Cotter and Googong Dams. The Bendora, Corin and Cotter Dams
are built on the Cotter River and are located in the ACT.
The Googong Dam was constructed in the 1970s on Commonwealth
land on the Queanbeyan River which is located in NSW, although its
water is reserved for use in the ACT. The ownership of the land on
which the Googong Dam was built has been a source of debate since
the ACT was granted self-government in 1989. The Commonwealth
indicated at about that time, that it intended to retain ownership
of the Googong Dam, stating:
The land in question obviously is owned by the
Commonwealth, just as is the land in the ACT. So for the reason
that it has obligations to New South Wales, it cannot abdicate its
role in respect of the dam. However, the amendments to the Dam Act
itself place the effective control and management of the area in
the hands of the Australian Capital Territory executive.[2]
However the ACT felt that the Commonwealth had agreed to hand
the land to the ACT but that the transfer was ineffectually
implemented by use of the wrong instrument .[3] In January 2007, John Stanhope, ACT
Chief Minister said:
The legal position is set out the Summary of
Legal Responsibilities for Cross Border Water Supply between the
ACT and NSW signed by the Commonwealth on 17 August 2006.
This Agreement, signed in August 2006 by the
Minister for Territories, demonstrates beyond doubt the
Commonwealth, ACT and NSW all had a clear and shared understanding
that the land was to be transferred to the ACT.[4]
The ACT Chief Minister s understanding was based on the
following passage:
The ownership of the Googong Dam Area is
currently in the process of transfer from the Commonwealth to the
ACT Government (ACTEW). This transfer will mean that Googong Dam
Area, and neighbouring Commonwealth freehold land will become
freehold land owned by the ACT, rather than a Commonwealth place
within the meaning of the Commonwealth Places (Application of
Laws) Act 1970. The Googong Dam Act will continue to govern
the primary use of the Googong Dam Area waters, subject to some
consequential changes. [5]
Questions about ownership and control of the Googong Dam and
associated infrastructure continued. During the 2007 Federal
election campaign, the then Member for Eden-Monaro, Gary Nairn,
said that under a Coalition government Googong Dam would be given
to the ACT on condition that Queanbeyan is given a secure water
allocation.[6]
Negotiations over the Googong Dam between the ACT and the
Commonwealth resumed after the 2007 election and agreement was
reached, not for ownership, but for a long term lease of the
Googong Dam to the ACT from the Commonwealth. On 4 September 2008,
the ACT signed a 150 year lease which did not come into effect
until a formal agreement was signed between the Australian, NSW and
the ACT Governments to guarantee Queanbeyan water supply from ACT
sources including the Googong Dam.[7]
At that time it was stated that:
We also intentionally drafted the document to
ensure that, while the Commonwealth s interests in the land are
fully protected, the ACT government will be able to acquit its
responsibilities without us constantly looking over its shoulder
what we aimed for was to allow the ACT government to get on and
manage the dam on our behalf as set out in the Canberra Water
Supply (Googong Dam) Act 1974.[8]
The amendments in this Bill require that the water resources of
the Googong Dam are included in the ACT water resource plan area
identified in the Basin Plan being developed for the Murray-Darling
Basin rather than in the water resource plan area for NSW and are
consistent with the current lease agreement.
Within the ACT, water is managed by both the National Capital
Authority (NCA) and the ACT Government.
The role of the NCA is supported by the PALM Act.[9] Section 6 of the PALM Act
provides that the NCA is to manage National
Land .[10] This is specific land, declared by the Minister to be
land that is, or is intended to be, used by or on behalf of the
Commonwealth.[11]
All other land within the ACT is regulated by the ACT Government.
Under the PALM Act the term land includes
water.[12]
The NCA manages the taking of water on National Land which
includes Lake Burley-Griffin. The amount of water managed is less
than 1 Gigalitre (GL) per annum compared to 45 65 GL per annum of
water consumed by the ACT and Queanbeyan which is managed by the
ACT Government.[13]
The Australian National Botanic Gardens (the Botanic Gardens) is
presently using potable water[14] from the Canberra water supply which has
increased in cost by 250 per cent over the past ten years.[15] As a result the
Botanic Gardens has had to implement water conservation measures to
allow the plant collection to go off this supply. Plant collections
are being reviewed and the Botanic Gardens is using improved
irrigation technologies, modifying landscaping to conserve water
and reducing the number of cultivated beds. However, water
restrictions imposed during the present drought has placed much of
the collection under stress and resulted in some loss of plant
specimens, contraction of planted areas and decline in some
horticultural displays.
The NCA has been discussing with the Botanic Gardens about
accessing water from Lake Burley-Griffin so they no longer have to
use potable water to irrigate their plant collection.
The NCA was able to negotiate an increase in the amount of water
available for abstraction from Lake Burley-Griffin with the ACT
Government in order to grant a licence of 170 Megalitres (ML) per
year to the Botanic Gardens.[16] A temporary permit was granted by the NCA to the
Botanic Gardens to extract this amount of water until December
2009. The Botanic Gardens has applied for another permit for one
year enabling it to cover the period until the present Bill is
passed and commences. The water for the Botanic Gardens will come
from unused allocation under the cap of the ACT Government for
water from Lake Burley-Griffin since the NCA did not have any room
under its cap.
The new arrangement of transferring management of water on
National Land from the NCA to the ACT Government:
will permit the ACT and Commonwealth to share
its total cap, allowing the gardens to draw water from Lake
Burley-Griffin, which is currently under Commonwealth control,
without any increase in the overall water use within the
catchment.[17]
Located in the south-east of Australia, the Murray-Darling Basin
covers over one million square kilometres, equivalent to 14 per
cent of Australia s total area. The Murray-Darling Basin extends
over three-quarters of NSW, more than half of Victoria, significant
portions of Queensland and South Australia, and includes the whole
of the ACT.[18]
Section 19 of the Water Act 2007 (the Water Act)
requires that there is a Basin Plan for the management of the
Murray-Darling Basin water resources. Essentially the Basin Plan is
to provide for limits on the quantity of water that may be taken
from the Murray-Darling Basin water resources as a whole, and from
the water resources of each water resource plan area.
The Basin Plan for the integrated and sustainable management of
water resources in the Murray-Darling Basin is planned to commence
in 2011.[19] The
mandatory content of the Basin Plan is listed in the Water Act as
including, though not limited to:
- limits on the amount of water (both surface water and
groundwater) that can be taken from Basin water resources on a
sustainable basis
- identification of risks to Basin water resources, such as
climate change, and strategies to manage those risks
- requirements that state water resource plans will need
to comply with if they are to be accredited under this
Act
- an environmental watering plan to optimise environmental
outcomes for the Basin
- a water quality and salinity management plan
- rules about trading of water rights in relation to Basin water
resources.[20]
Under the water-sharing arrangements, when existing Basin states
water resource plans cease, new plans will be prepared by Basin
states and provided to the Commonwealth Minister for accreditation.
Among the requirements for inclusion in a water resource plan are
matters such as the long-term annual diversion limit for the water
resources of the water resource plan area; the regulation of
interception activities with a significant impact on the water
resources; planning for environmental flows; and water quality and
salinity objectives for the water resource plan area.[21]
The Bill has been considered by the Scrutiny of Bills Committee
(the Committee) which noted the retrospective effect of certain
proposed provisions.
The Committee stated:
As a matter of practice, the Committee draws
attention to any bill that seeks to have retrospective impact and
will comment adversely where such a bill has a detrimental effect
on people. Items 1 and 2 of Schedule 2 amend subsection 18B(9) of
the Water Act 2007.
A note to item 2 explains that section 18B was
inserted by the WaterAmendment Act 2008 which commenced on
15 December 2008. This means that the relevant provisions in this
bill will be taken to have commenced immediately after the
commencement of the amended section 18B.
The Committee also notes that the explanatory
memorandum explains (at page 5) that the amendments in items 1 and
2 of Schedule 2 mirror equivalent provisions in relevant state laws
which refer legislative power to the Commonwealth to enact the
referred provisions of the Water Act.
In the circumstances, the Committee makes
no further comment on these provisions.[22]
According to the Explanatory Memorandum:
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.[23]
Schedule 1 amends the PALM Act. The purpose of these amendments
is to ensure that the abstraction of water on National Land is no
longer managed by the Australian Government. To achieve this:
- item 1 inserts the term take into existing
section 4 so that it will have the same meaning in the PALM Act is
as in section 11 of the Water Resources Act 2007 (ACT),
that is:
- for surface water
to withdraw, pump, extract or use surface water; and to divert
surface water for the purpose of using it; and do anything else
that results in a reduction of flow of surface water in a
waterway
- for ground water
to allow ground water to flow or be pumped from a bore.
- item 4 inserts proposed subsection
6(2) which specifically excludes the management of the
taking water on National Land from the functions of the NCA
- item 5 inserts proposed paragraph
29(1)(c) which gives responsibility for management of the
taking of water on National Land to the ACT Government, and
- item 6 inserts proposed paragraph
30(2)(a) so that liability for the management of the
taking of water on National Land is assigned to the ACT
Government.
Schedule 2 of the Bill amends the Water Act.
Existing section 18B of the Water Act sets out the meaning of
the term referring state . The
requirement for such term arises because some of the Constitutional
underpinning of the Water Act lies in the referral of certain
powers by the States to the Commonwealth under section 51(xxxvii)
of the Commonwealth of Australia Constitution Act. Items 1
3 have the effect that where the Water Act uses the term
referring state it means the Basin
states.
According to the Second Reading Speech, the Bill seeks to ensure
that water used by the Department of Defence facilities and other
Commonwealth agencies in the Murray-Darling Basin is taken into
account when the Basin Plan is being prepared.[24] Item 5 of the
Bill inserts the phrase including the Commonwealth in subparagraph
21(4)(c)(ii) so that this can be achieved.
A number of amendments are directed towards the inclusion of the
resources of the Googong Dam Area in the water resource plan for
the ACT rather than the water resource plan for NSW. These are
contained in items 7 and 11 13.
In particular item 12 inserts proposed
section 63A which specifically provides that the Googong
Dam Area is to be treated as if it was located in the ACT.
Items 11 and 13 17 insert notes
into various sections of the Water Act in identical terms that the
surface water of the Googong Dam Area is to be treated as if it
were located in the ACT. The effect of these amendments is to make
reference in those sections to proposed section
63A.
Items 9 and 10 provide for
amendments to existing sections 33 and 55 respectively. The effect
of the amendments is that both the Basin Plan and a water resource
plan may make provision about a matter that applies, adopts or
incorporates any matter contained in an instrument or other writing
which is in force from time to time. The purpose of the amendments
is to ensure documents such as guidelines, models or standards can
be incorporated as and when they are in force, rather than having
to formally amend the Basin Plan or water resource plan.
The purpose of the Canberra Water Supply (Googong Dam) Act
1974 (Googong Dam Act) was to provide a legislative basis for
the construction of a dam and other works for the storage of waters
from the Queanbeyan River to ensure an adequate supply of water to
the ACT. Existing section 4 of the Googong Dam Act sets out the
functions of the ACT Government in relation to the Googong Dam
area. Those functions are currently exercised on behalf of the
Commonwealth.
Item 1 of Schedule 3 of the Bill amends section
4 to make clear that the ACT Government is to manage, protect and
use the waters of Googong Dam in a way that is consistent with the
objects of the Water Resources Act 2007 (ACT). Those
objects are set out in section 6 as follows:
- to ensure that management and use of the water resources of the
Territory sustain the physical, economic and social wellbeing of
the people of the ACT while protecting the ecosystems that depend
on those resources
- to protect aquatic ecosystems and aquifers from damage and,
where practicable, to reverse damage that has already happened,
and
- to ensure that the water resources are able to meet the
reasonably foreseeable needs of future generations.
It is not intended that this change will affect any agreements
reached by the Commonwealth, NSW and ACT Governments on the supply
of water to Queanbeyan.[25]
Schedule 4
The Water Amendment Act 2008 (Water Amendment Act)
amended the Water Act to make changes to the cooperative water
planning, management and regulatory regime in the Murray-Darling
Basin. Those changes reflected agreement by the relevant States and
the ACT to refer constitutional powers to the Commonwealth to
broaden the Commonwealth s planning, management and regulatory
powers.[26]
Schedule 3 of the Water Amendment Act contained transitional
provisions. Item 1 of Schedule 4 of this Bill
amends clause 4 of the Water Amendment Act to clarify, for the
avoidance of doubt, that the Chief Executive Officer of the
Murray-Darling Basin Authority has been appointed for four years
from 15 December 2008 the date of commencement of the Water
Amendment Act.
Existing subsection 25(1) of the Trade Practices Act
1974 (TPA) empowers the Australian Competition and Consumer
Commission (ACCC), by resolution, to delegate to a single member,
any of its powers under a number of Acts, including the Water Act.
Item 1 of Schedule 5 proposes to amend the
subsection to include any rules made under the Water Act. The
rationale for the amendment is that it is the rules made under the
Water Act rather than the Water Act of itself, which contain the
substantive functions of the ACCC.[27]
[2]. G Richardson, In Committee:
Australian Capital Territory (Self Government) Bill 1988, Senate,
Debates, 24 November 1988, p. 2742, viewed 23 November
2009,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F1988-11-24%2F0097%22
Bill McCormick and Paula Pyburne
1 December 2009
Bills Digest Service
Parliamentary Library
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