WATER AMENDMENT REGULATION 2012 (NO. 2) (SLI NO 232 OF 2012) EXPLANATORY STATEMENT

(Issued by the Authority of the Minister for Sustainability, Environment, Water, Population and Communities)

Subsection 4(1) paragraph (a) of the definition of 'Basin water resources' in the Water Act 2007 (the Act) provides that water resources may be excluded by regulation.

Subparagraph 74A(1)(b)(ii) of the Act provides that a day may be specified for the purposes of a determination under section 74A by regulation.

Subsection 241(1)(b) of the Act provides that a plan may be prescribed as a transitional water resource plan by regulation.

Subsection 256(1) of the Act provides that the Governor-General may make regulations prescribing matters required or permitted to by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The regulation amends the Water Regulation 2008 (the Principal Regulations) to:

* exclude certain water resources from the definition of Basin water resources under the Act;

* make minor amendments to the definition of the currently excluded water resources in the 'Hundreds of Livingston and Carcuma overlap area' to ensure consistency in spatial expression;

* specify for the purposes of risk assignment under subparagraph 74A(1)(b)(ii), 28 October 2011, as the day that Queensland's water management law has applied the risk assignment framework; and

* prescribe a number of Victorian water resource plans as transitional water resource plans under subparagraph 241(1)(b).

Subsection 4(1) of the Act defines Basin water resources to mean all water resources within, or beneath, the Murray-Darling Basin, other than: (a) water resources that are prescribed by the regulations for the purposes of paragraph (a) of the definition; or (b) ground water that forms part of the Great Artesian Basin.

The Murray-Darling Basin Boundary (the Basin Boundary) defined under section 18A of the Act, which informs the definition of Basin water resources, was originally determined based on States' surface water planning areas. Therefore there are some water resources, that have been included in the Basin Boundary, that are on the edge of state water planning areas or fall partially inside and partially outside the Basin Boundary. South Australia has five small areas of predominately ground water at the edge of the Basin and the Victorian West Wimmera ground water management area is only partially inside the Basin Boundary. The regulation excludes both the surface and ground water resources in the South Australian areas and only ground water in the Victorian area. The water resources in these areas are minimally connected, if at all, to other Basin water resources.

The Department of Sustainability, Environment, Water, Population and Communities (the department) has consulted with the South Australian Department of Environment, Water and Natural Resources (DEWNR), the Victorian Department of Sustainability and Environment (DSE) and the Murray-Darling Basin Authority (the Authority) regarding these exclusions.

Excluding these water resources means that as they no longer form water resources of the Basin, they are not be required to be included in the Murray-Darling Basin Plan (Basin Plan). South Australia and Victoria will not need to prepare or have accredited water resource plans for these areas under the Basin Plan. The excluded water resources are subject to state water management legislation.

The regulation to exclude ground water resources in the Hundreds area made in 2008 used a polygon spatial description. In contrast, the current amendments to exclude additional South Australian and Victorian water resources (outlined above) identify these water resources by using a line description that refers to the current Basin Boundary. Using a line description is preferable as it is a more accurate and precise method for identifying excluded resources. For consistency, the regulations rename the current Hundreds area to 'Area 6' and reformat its spatial description to align with the format of these additional exclusions.

These are machinery changes and do not affect the status of the Hundreds area; it remains excluded from the definition of Basin water resources.

Under the risk assignment framework in Part 2, Division 4 of the Act water access entitlement holders whose allocations are reduced or reliability changed as a result of the Basin Plan may qualify for a payment if the statutory criteria are satisfied.

The risk assignment framework in the Act sets out how the risk relating to future reductions in water allocations or reliability for consumptive use should be shared between water access entitlement holders, Basin States and the Commonwealth. This framework is based on the National Water Initiative and the Intergovernmental Agreement on Murray-Darling Basin Reform (Reform IGA). Under the Reform IGA the Commonwealth agreed to take on a greater share of the risk relating to future reductions in water allocations attributable to the 'new knowledge' component for reductions which took effect after 1 January 2015. The Commonwealth also agreed to take on this additional risk at an earlier date in those Basin States which took on their risk sharing obligations under clauses 48 to 50 of the Reform IGA. Section 74A of the Act provides that a Ministerial determination may be made that a Basin State's water management law has applied the risk assignment framework provided in the National Water Initiative and the Reform IGA. To be eligible for a payment in relation to new knowledge the Minister must have made a determination that the relevant Basin State has taken on its risk sharing obligations under section 74A of the Act in the State's water management law.

A precondition for making this determination is that it will attach to either the date provided in paragraph 74A(1)(b) being the 30 June 2009 or a later date specified in the regulations which must be a date before the Basin Plan first takes effect. Queensland amended its water management legislation to change its risk assignment framework with a view to the Commonwealth accepting Queensland's share of 'new knowledge' risk. The relevant provisions commenced on 28 October 2011.

This regulation sets out that the later date for Queensland is 28 October 2011. The effect of this prescribed date is that the Minister may now make a determination under subsection 74A(1) to recognise the Queensland provisions as applying the risk assignment framework, so that the Commonwealth may accept Queensland's share of the 'new knowledge' risk.

This is the second round of prescribing Victorian transitional water resource plans by regulation. The first round of prescription was enacted through Schedule 1 of the Water Amendment Regulation 2012 (No. 1), which commenced on 11 May 2012.

Listing these transitional water resource plans provides Victoria with the ability to continue to undertake comprehensive water management and planning until the Basin Plan is wholly in effect. The prescription of this round of transitional water resource plans affords Victoria some flexibility in its ability to transition to the new water resource planning and management requirements, particularly regarding salinity management, under the Basin Plan.

Extensive consultation has been undertaken with DSE and the Authority during this round of assessment of transitional water resource plans. The prescription only relates to Victorian water resource plans. Other jurisdictions' water resource plans are included in Schedule 4 of the Act.

The effect of the prescription of transitional water resource plans is to delay the application of those provisions of the Basin Plan which are inconsistent with a transitional water resource plan, in the area where a transitional water resource plan applies, until 30 June 2019.

The Office of Best Practice Regulation has advised that a Regulation Impact Statement was not necessary for any of these amendments.

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

This legislative instrument amends the Water Regulations 2008 (Water Regulations) by making the following minor amendments to the Water Regulations to:

* prescribe that the date the Minister may make a determination that Queensland has applied a compliant risk management framework is the 28 October 2011; and

This legislative instrument engages the right to an adequate standard of living and the right to health in the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to an adequate standard of living is protected in Article 11 of the ICESCR and the right to physical and mental health is protected in article 12 of the ICESCR. The Committee on Economic, Social and Cultural Rights, established to oversee the implementation of the ICESCR, has interpreted these articles as including a human right to water which encompasses an entitlement to 'sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses' (human right to water).[1]

The human rights implications of the legislative instrument must be considered in the context of the Water Act 2007 (Water Act). The overall framework of the Water Act supports access to sufficient, safe, acceptable and physically accessible water for personal and domestic uses. This is reflected in the Water Act by section 20 which sets out the purpose of the Basin Plan and is supported through subsection 22(1) which sets out the specific content required to be included in the Basin Plan, such as a water quality and salinity management plan (Item 10). In addition, subparagraph 86A(1)(a) requires that the Basin Plan be prepared having regard to the fact that the Commonwealth and the Basin States have agreed that critical human water needs are the highest priority water use for communities who are dependent on Basin water resources. These sections support the human right to water.

These amendments to the Water Regulations deal with minor administrative and machinery matters which are provided for in the Water Act and required to support implementation of the Basin Plan.

The amendment to exclude water resources from the definition of Basin water resources does not affect the ability of States to manage these resources in a manner consistent with maintaining critical human water needs and water quality.

The amendment to prescribe the 28 October 2011, as the day for Queensland under subsection 74A(1)(b)(ii) a technical amendment. The Minister is now able to make a determination regarding Queensland's assignment of risk to the Commonwealth, since the specified day. This does not affect the ability of Queensland to manage its water resources under the Basin Plan in a manner that maintains critical human water needs and water quality.

The listing of transitional water resource plans provides Victoria with the ability to undertake comprehensive water management and planning, particularly regarding salinity management until the Basin Plan takes effect. Again, the listing of plans is not inconsistent with States maintaining critical human water needs and water quality.

The legislative instrument is compatible with human rights because it supports the human right to water.

The Act does not specify any conditions that need to be satisfied before the power to make the regulation may be exercised.

The regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Authority: Subsections 4(1), 74A(1)(b)(ii), 241(1)(b) and 256(1) of the Water Act 2007

Details of the Water Amendment Regulation 2012 (No. 2)

Part 1 - Preliminary

Regulation 1- Name of regulation

This regulation provides that the title of the regulation is the Water Amendment Regulation 2012
(No. 2).

Regulation 2- Commencement

This regulation provides that the regulation commences on the day after it is registered.

Regulation 3- Amendment of Water Regulations 2008

This regulation provides that Schedule 1 amends the Water Regulations 2008.

Schedule 1- Amendment

Item [1] Regulation 1.05

Under subsection 4(1) of the Water Act 2007 (the Act), Basin water resources are defined as 'all water resources within, or beneath, the Murray-Darling Basin, but does not include: (a) water resources within, or beneath, the Murray-Darling Basin that are prescribed by the regulations for the purposes of this paragraph; or (b) ground water that forms part of the Great Artesian Basin.'

The definition of Basin water resources, in subsection 4(1) is also affected by the definition of the Murray-Darling Basin (the Basin) in section 18A, which provides that the Basin is the area falling within the boundary described in the 'Murray-Darling Basin Boundary-Water Act 2007-----/span>' dataset. An indicative map of this area is set out in Schedule 1A of the Act and a copy of this dataset can be obtained from the department's website at http://www.environment.gov.au.

In 2008, the ground water in the Hundreds of Livingston and Carcuma overlap area (Hundreds area) in South Australia was excluded by prescription in the Principal Regulations.

Item 1 substitutes a new regulation 1.05 into the Principal Regulations. This regulation, together with the new Schedule 1, sets out the six areas additional water resource areas excluded from the definition of Basin water resources. The intention is that there will be a total of seven prescribed areas and the previously prescribed Hundreds area will be referred to as 'area 6'.

The Hundreds area is referred to as area 6 by new regulation 1.05 because the six new areas that are prescribed do not have pre-existing, appropriate area names. The new areas are relatively small areas but are each generally comprised of several state water planning or natural resource management areas. The use of numerical, rather than area name references are intended to promote consistency and minimise confusion related to the excluded areas' locations.

The expression of subregulation 1.05(1) refers to 'area 1, 2, 3, 4, or 5' which are surface and ground water resources in South Australia and 'area 6 or 7' which are only ground water resources in South Australia and Victoria, respectively. Despite the use of 'or' it is intended that all areas 1-7 are excluded from the definition, cumulatively.

Item [2] After Part 2, Division 2.1

Section 74A of the Act provides that the Minister may make a determination that a State has applied the risk assignment framework provided for in clauses 48 to 50 of the National Water Initiative, read in conjunction with clause 10.1.3 of the Agreement on Murray-Darling Basin reform of 3 July 2008, and that the framework has been applied by, and at all times since 30 June 2009, or a later day specified in the regulations.

Item 2 inserts a new regulation 2.22 into the Principal Regulations. Under regulation 2.22, the specified day for Queensland is the 28 October 2011 for the purpose of subparagraph 74A(1)(b)(ii) of the Act.

By specifying the 28 October 2011, the Minister is now able to make a determination that Queensland has applied the risk assignment framework as set out in section 74A of the Act by, and at all times since, 28 October 2011.

The regulation has been numbered 2.22 as opposed to 2.02 to allow for the insertion of provisions by future amendments to the Principal Regulations.

Item [3] Schedule 1

The Murray-Darling Basin Boundary (the Basin Boundary) defined under section 18A of the Act, which informs the definition of Basin water resources under subsection 4(1), was originally determined based on States' surface water planning areas. Therefore there are some water resources, that have been included in the Basin Boundary, that are on the edge of state water planning areas or fall partially inside and partially outside the Basin Boundary. Subsection 4(1) provides for water resources in such areas to be prescribed as excluded from the definition of Basin water resources.

Item 3 substitutes a new Schedule 1 to the Principal Regulations. This Schedule describes areas 1 to 7 for the purposes of regulation 1.05.

This Schedule sets out the spatial line description for each excluded area. The descriptions are in sets of latitudinal and longitudinal geographical coordinates (coordinates) for each prescribed area. Part 1 deals with Area 1, Part 2 deals with Area 2, Part 3 deals with Area 3, Part 4 deals with Area 4, Part 5 deals with Area 5, Part 6 deals with Area 6 and Part 7 deals with Area 7.

Each Part's description commences and finishes with a point of intersection with the Basin Boundary. The commencing point, or where the exclusion line diverges from the Basin Boundary, is: the first coordinate contained in the line of text and prior to each coordinates table. The end point is the last coordinate in each table: where the line of exclusion rejoins the Basin Boundary.

Each Part also contains two Notes directing the reader to information on the Basin Boundary, as defined in section 18A of the Act. Note 1 provides that a copy of the 'Murray-Darling Basin Boundary-Water Act 2007-----/span>' dataset can be obtained from the department's website at http://www.environment.gov.au. Note 2 provides that an indicative map of the area is set out in Schedule 1A to the Act.

The Schedule does not make substantive changes to the extent of excluded water resources in the Hundreds of Livingston and Carcuma area (Hundreds area). New regulation 1.05 provides that the Hundreds area will be hereafter be referred to as Area 6.

Item [4] Schedule 4, Part 1, definition of all water resource plan areas, after paragraph (e)

Item 4 inserts a new definition into Part 1 of Schedule 4 to the Principal Regulations. Schedule 4 sets out the additional plans that have been prescribed as transitional water resource plans for the purposes of subsection 241(1) of the Act.

The definition of 'all water resource plan areas' in Schedule 4 now includes 'Northern Victoria'. This addition of Northern Victoria was required for clarity as some of the plans prescribed as transitional water resource plans by this amendment regulation, have specified Northern Victoria as their water resource plan area.

Item [5] Schedule 4, Part 2, items 115 to 120, column 3

Item 5 omits the reference to 'all water plan areas' and re-inserts 'all water resource plan areas'. Items 115 to 120 incorrectly referred to 'all water plan resource areas' where they should have referred to 'all water resource plan areas' to reflect the language of the Act and the Principal Regulations.

Item [6] Schedule 4, Part 2, after item 120

Section 241 of the Act deals with transitional water resource plans. A 'transitional water resource plan' is a plan that is specified in Schedule 4 to the Act, or prescribed by regulations made under paragraph 241(1)(b), together with any instruments made under or for the purposes of the plan (subsection 241(1)).

Subsection 245(2) of the Act provides that a plan recognised as a transitional water resource plan may prevail over Basin Plan water resource plan requirements only to the extent that the transitional water resource relates to a water resource plan area and it is inconsistent with Basin Plan requirements. This means that if a transitional water resource plan deals with a mandatory Basin Plan matter (subsection 22(1) of the Act), and those provisions are inconsistent with the Basin Plan, the transitional water resource plan's provisions will prevail over the Basin Plan to the extent of any inconsistency.

Section 243 of the Act also provides that transitional water resource plans as in force on 3 March 2008 (the date on which the Part 2 of the Act commenced) are deemed to have been accredited by the Minister. Any provisions of transitional water resource plans which are inconsistent with the Basin Plan will override the Basin Plan.

Schedule 4 to the Act specifies transitional water resource plans for Queensland, South Australia and New South Wales. Victoria did not identify water resource plans for inclusion in Schedule 4 before the Act passed. Instead, Regulations under paragraph 241(1)(b) prescribe a number of Victorian transitional water resource plans. This prescription was effected by the Water Amendment Regulations 2012 (No. 1) which amended the Principal Regulations, adding Schedule 4. Schedule 4 prescribed 120 Victorian transitional water resource plans.

Item 6 inserts nine additional transitional water resource plans into Part 2 of Schedule 4 to the Principal Regulations. The additional plans are specified as items 121-129 in the Part 2 Transitional Water Resource Plans- Victoria Table.

These plans apply to the Northern Victoria, Victorian Murray, Wimmera-Mallee water plan resource areas and in some cases apply to several or all water resource plan areas across Victoria. These plans will cease to have effect as transitional water resource plans on 30 June 2019.

The department will publish a list of instruments, which have been assessed by the department as constituting instruments made under or for the purposes of a transitional water resource plan, on its website at http://www.environment.gov.au.

[1] CESCR General Comment No. 15: The Right to Water E/C 12/2002/11.

Commonwealth Numbered Regulations - Explanatory Statements