Key provisions
2.1
The bill, which contains one schedule of amendments, will insert a new
section 49AA into subsection F of Division 1 of Part 2 of the Water Act, and
make related amendments to other sections of the Water Act to give effect to
the new section.
2.2
If passed, the provisions of the bill will allow the water minister to
remake the NBR instrument. The Department of Agriculture and Water Resources (DAWR)
noted that the disallowed NBR instrument amended the Basin Plan to implement
changes arising from:
- the Northern Basin Review of SDLs;
- three groundwater reviews and a need for other technical
groundwater amendments;
-
the Australian Government response to the 2014 Water Act review;
and
- a need for other technical amendments.[1]
Amendment of the Basin Plan
Schedule 1 - new section 49AA
2.3
Item 2 of Schedule 1 of the bill inserts section 49AA in to the Water
Act. According to the EM, this new section will 'provide an expedited process
to remake a disallowed Basin Plan amendment', known as an 'earlier amendment'.
Under this section, the Commonwealth Water Minister (water minister) will have
authority to direct the MDBA 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 by either House of the Parliament.[2]
2.4
Proposed subsection 49AA(1) gives the authority for the water minister
to make the direction to the MDBA, with certain limitations. The limitations
are that:
- the amendment must be the same in effect as the earlier,
disallowed amendment;
-
the earlier amendment was prepared in accordance with the
detailed consultation requirements under Part 2 of the Water Act;[3]
-
the direction to the MDBA is given within a 12 month period,
beginning on the day that the earlier amendment was disallowed (or taken to be
disallowed); and
- the earlier amendment must not have been one that was previously
adopted under section 49AA.[4]
2.5
With regard to the last point, the EM states that if the water minister
does not adopt an amendment, the minister could re‑direct the MDBA to
'propose a further iteration of the amendment, provided that the direction was
given within the same 12 month period'.[5]
2.6
The EM argues that the limitations listed above will:
...operate so that the [MDBA] 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.[6]
2.7
In its submission to the inquiry, DAWR reiterated this position, stating
that the MDBA may not propose changes to the disallowed instrument that have
not previously been subject to the detailed process (including extensive
consultation) set out in sections 45 to 48 of the Water Act. This also ensures
that the MDBA 'cannot include any new or different amendments, as these would
not achieve the same effect as the disallowed amendment'.[7]
2.8
In his second reading speech, Minister Littleproud also made clear that
the ministerial direction powers would only apply to disallowed instruments
that were prepared under subdivision F of Division1 of Part 2 of the Water Act.
The new power provided by the bill may not necessarily apply if an amendment to
adjust SDLs, made under section 23A and 23B of the Water Act, was disallowed.[8]
Other provisions
2.9
Under proposed subsection 49AA(2), the MDBA must comply with a direction
made under subsection (1) by the water minister. The MDBA must prepare the
amendment and give it to the water minister as soon as practicable.
2.10
Once the amendment is received by the water minister, subsection 49AA(3)
provides that the minister must either adopt the amendment, in writing, or give
notice to the MDBA of a decision not to adopt the amendment.
2.11
Subsection 49AA(4) is a clarifying provision, stating that sections 46
to 48 of the Water Act do not apply to a Basin Plan amendment that has been
prepared, or prepared and adopted, under new section 49AA. These sections of
the Water Act relate to consultations by the MDBA in preparing a Basin Plan
amendment, the MDBA seeking submissions and comments on the proposed amendment,
and ministerial adoption of the proposed Basin Plan amendment.
2.12
Subsection 49AA(6) also acts as a clarifying provision. This subsection
provides 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 EM
goes on to state that:
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.[9]
2.13
Subsection 49AA(6) details the changes that would not prevent an
amendment being taken to be the same in effect as a disallowed amendment,
including:
-
a change that is required because another amendment to the Basin
Plan has commenced after the commencement of the earlier amendment (for
example, the Basin Plan Amendment (SDL Adjustments) Instrument 2017 which
commenced in law after the commencement of the earlier amendment);
- a change that is required because a requirement under the Basin
Plan has already occurred, or been met, after the commencement of the earlier
amendment (for example, the 2017 SDL adjustment determination occurring in
December 2017 after the commencement of the earlier amendment); and
- a change that causes the amendment to commence later than the
earlier amendment (a change in commencement dates).[10]
2.14
Minor or non-substantive amendments would also not prevent the amendment
from being the same in effect as the earlier disallowed amendment.[11]
2.15
The bill also ensures that the water minister cannot delegate the
functions of section 49AA to anyone else, and therefore the new directions
power can only ever be exercised by the water minister (items 4 and 5 of the
bill).[12]
Transitional provisions – new
Schedule 10
2.16
Item 7 of the bill inserts a new Schedule 10 into the Water Act, for
transitional provisions relating to amendments made by Schedule 1 of the bill.
2.17
The transitional provisions state that any amendments made by Schedule 1
of the bill 'apply whether the earlier amendment of the Basin Plan was
disallowed (or taken to have been disallowed)' under the relevant sections of
the Legislation Act, before, at or after the commencement of that schedule.[13] As noted by the EM, this means that any amendments made by Schedule 1 – being new
section 49AA – 'apply regardless of when a previous amendment has been
disallowed before [Schedule 10] has commenced in law'.[14]
2.18
Item 7 of the bill relates directly to the instrument disallowed on
14 February 2018 by the Senate, the NBR instrument (Basin Plan
Amendment Instrument 2017 (No. 1)). The transitional provisions are to
apply if the water minister gives a direction to the MDBA to prepare an
amendment of the Basin Plan that is the same in effect as the NBR instrument.
2.19
The new subsection 2(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 NBR instrument. As detailed by the EM, subsection 2(2)
states that one or more of the following changes does not prevent the amendment
from being the same in effect as the disallowed amendment:
- 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;
-
a change in subsection 6.05(13) of the Basin Plan to provide that
the MDBA 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
-
a change to section 7.14A of the Basin Plan that will reflect
that the 2017 SDL adjustments have already occurred.[15]
Disallowance and sunsetting
2.20
New subsection 49AA(5) proposed by the bill states that a direction made
under subsection 49AA(1) is a legislative instrument. However, it is not
subject to section 42 of the Legislation Act 2003 (Legislation Act),
relating to disallowance, nor is it subject to the sunsetting provisions of the
Legislation Act. The EM notes that:
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.[16]
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