EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 174

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

Subject: Water Act 2007

Water Amendment Regulations 2009 (No. 1)

Subsection 256(1) of the Water Act 2007 (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.

Part 7 of the Water Regulations 2008 (the Principal Regulations) is made for the purposes of section 126 of the Act. Section 126 provides that persons specified in the Regulations, or included in a class of persons so specified, must give particular water information to the Bureau of Meteorology (the Bureau).

Subsection 256(3) of the Act provides that regulations made for the purposes of Part 7 (Water Information) of the Act may make provision for extrinsic material to be incorporated in the regulations by reference. This material may be incorporated as it is at a particular time or as it changes from time to time. Additionally, the material does not have to exist at the time when the regulations are made.

The purpose of the Regulations is to amend the Principal Regulations to allow the Bureau, in undertaking its functions under Part 7 of the Act, to refer to up-to-date lists of water information providers and of commercially sensitive sites.

These lists are currently contained in Schedules to the Principal Regulations. As organisations split, merge or are renamed, Schedule 2 (names of persons) quickly becomes out of date, creating confusion both for the Bureau and the organisations named. Likewise, Schedule 4, which lists commercially sensitive sites from which the provision of water information can be delayed, cannot be updated as quickly as is desirable.

The Regulations omit Schedules 2 and 4 from the Principal Regulations and incorporate the lists of persons and of sites by reference. The Bureau will maintain the lists on its website, thus improving the currency of the information.

The Governor-General's regulation making power in section 256 of the Water Act 2007 was amended by the Water Amendment Act 2008, effective from 15 December 2008, specifically to allow the Bureau to refer to an up-to-date list of persons in the Principal Regulations. These Regulations put into effect that policy decision.

The amendments to Part 7 of the Principal Regulations provide for the contents of Schedule 2 and Schedule 4 to be contained in two separate documents published by the Bureau of Meteorology at: http://www.bom.gov.au/water. The documents are titled Persons and Classes of Persons, and Commercially Sensitive Sites, respectively. They follow the same format as Schedules 2 and 4, except for minor reformatting of Part 1 of the Persons and Classes of Persons document to accommodate the relocation of two organisations previously listed in Regulation 7.02.

Removing Schedules 2 and 4 from the Regulations and maintaining them on the Bureau's website does not materially affect the operation of the Principal Regulations. From this perspective, the Bureau considers that the amendment is of a machinery nature and does not substantially alter the existing circumstances of those listed in the Principal Regulations, nor does it have an effect on business. Therefore, the Bureau is satisfied that section 18 of the Legislative Instruments Act 2003, whereby consultation may be unnecessary, applies to these Regulations.

Nevertheless, the Bureau consulted with various government agencies. Before issuing drafting instructions, the Bureau discussed the amendments with the Department of the Environment, Water, Heritage and the Arts (DEWHA) and the Australian Government Solicitor's office to ensure that they would be consistent with the policy intent in Subsection 256(3) of the Water Act. It also consulted the Office of Best Practice Regulation (OBPR) and the Office of Legislative Drafting and Publication to obtain more general advice regarding incorporation of extrinsic material by reference in regulations. Additionally, the Bureau submitted a Preliminary Assessment to the OBPR which advised that no further regulatory analysis was necessary.

The majority of persons named in the Principal Regulations are state and local government entities. The Bureau consulted the States and Territories about the legislative proposal through the Jurisdictional Reference Group on Water Information (JRGWI). JRGWI provides a forum for the States, Territories and the Bureau to exchange views and advise the Bureau on water information activities. It includes representatives from each State and Territory. JRGWI members supported the Bureau's approach to improving the currency of the schedules.

The Bureau has also taken several steps to inform people about the amendment by writing to all persons listed in Schedule 2 and other stakeholders to alert them to the changes, including why they are occurring, their effect, the location of the online lists of names and the procedures the Bureau will follow for altering the lists in the future.

The Regulations permit the Bureau to modify the lists referred to, including adding new persons to the Principal Regulations. As noted by subsection 256(4) of the Water Act, subsection 256(3) is contrary to the general presumption in subsection 14(2) of the Legislative Instruments Act. It allows any matter contained in a written instrument or other document, as in force or existing from time to time to be incorporated in the Regulations.

Therefore, the Bureau has developed a rigorous protocol to ensure the transparency and integrity of the updates to the lists as well as compliance with Subsection 256(5) of the Water Act. Subsection 256(5) specifies that the Bureau must make sure that the documents, and any amendments to them, are publicly available on the Bureau's website.

The Bureau’s processes for updating the lists of persons and of sites are contained in a document titled Procedures for managing online lists of named persons and sites in the Water Regulations 2008 which is available at: http://www.bom.gov.au/water.

As well as containing links to the lists of names, sites and operating procedures document, the Bureau’s website explains the amendments to the Regulations. It also links to a register of the changes that the Bureau makes to the lists of names, thus ensuring transparency with regard to all alterations of the online documents.

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

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

Details of the Regulations are set out in the Attachment.

Attachment

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 2009 (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 – Subregulation 1.03 (1), definitions

This item substitutes definitions in Subregulation 1.03 (1).

 

The new definitions provide that persons in Categories A through H are as specified in Categories A through H in the document entitled Persons and Classes of Persons.

 

Item 2 – new regulation 1.06

This item inserts a new regulation 1.06 after regulation 1.05.

 

New regulation 1.06 identifies the documents entitled Persons and Classes of Persons and Commercially Sensitive Sites as being published from time to time by the Bureau of Meteorology and located on the internet at http://www.bom.gov.au/water.

 

These documents contain the information that was in Schedules 2 and 4.

 

Item 3 – Regulations 7.02 to 7.09

This item omits regulations 7.02 to 7.09.

 

Regulations 7.02 to 7.09 defined the persons named in the Regulations under the Categories A through H.

 

Items 4 and 5 – Paragraph 7.13 (4) (b) and Paragraph 7.14 (4) (b)

These items omit references to Schedule 4 and insert references to the document entitled Commercially Sensitive Sites, published from time to time by the Bureau of Meteorology and available at: http://www.bom.gov.au/water.

 

Paragraphs 7.13 (4) (b) and paragraph 7.14 (4) (b) allow persons listed in Category C to delay providing water information from sites listed in the document entitled Commercially Sensitive Sites by two calendar months.

 

Items 6 and 7 – Schedule 2 and Schedule 4

These items omit Schedule 2 (Persons) and Schedule 4 (Commercially Sensitive Sites) from the Regulations.

 

The information in these Schedules will be contained in documents on the Bureau's website. The documents are included in the Regulations by reference to allow the Bureau to keep them up to date.