EXPLANATORY STATEMENT
Water Act 2007
Accreditation of amendment of transitional water resource plan – River Murray Prescribed Watercourse Water Allocation Plan
(Issued under the Authority of the Minister for Climate Change and Water)
The purpose of the Accreditation of amendment of transitional water resource plan – River Murray Prescribed Watercourse Water Allocation Plan (the Instrument) is to accredit amendments to the River Murray Prescribed Watercourse Water Allocation Plan under s 65(5) of the Water Act 2007 (the Act). The River Murray Prescribed Watercourse Water Allocation Plan is a transitional water resource plan under item 7 of the table in Schedule 4 to the Act.
The Act requires the Murray-Darling Basin Authority (the Authority) to prepare a Basin Plan and give it to the Minister for adoption. When made by the Minister, the Basin Plan will be a Commonwealth legislative instrument, and under section 109 of the Constitution it will prevail over inconsistent State laws.
However, under Part 11 of the Act, transitional water resource plans (as well as interim water resources plans) have special status. Transitional water resource plans are those water resource plans recognised for this purpose under section 241 of the Act; the Commonwealth committed to respect these plans until their expiry or next major review. Under section 241 of the Act, transitional water resource plans are deemed to have been accredited by the Minister, and under section 245 of the Act, a transitional water resource plan prevails over the Basin Plan to the extent of any inconsistency between the two.
Under subsection 65(1) of the Act, an amendment of an accredited water resource plan has no effect for the purposes of the Act unless the amendment is accredited. This means that an amended part of a transitional water resource plan will not prevail over the Basin Plan under s 245 of the Act unless it has been accredited.
The Minister has the power under subsection 65(5) of the Act (as modified by s 246) to accredit an amendment of a transitional water resource plan. In deciding whether to accredit the amendment to the River Murray Prescribed Watercourse Water Allocation Plan, the Minister considered the recommendations of the Authority, as required under s 65(5)(b) of the Act. The Authority recommended that the Plan be accredited.
The River Murray Prescribed Watercourse Water Allocation Plan was amended under the Natural Resources Management Act 2004 (SA) by the South Australian Minister for the River Murray on 15 July 2009, effective from 1 July 2009. At the time the Instrument was made, the South Australian amendment instrument (containing the amended plan) could be found on the website of the South Australian Murray-Darling Basin Natural Resources Management Board: www.samdbnrm.sa.gov.au.
The main effect of the amendments to the Plan was to provide for the unbundling of water rights in the River Murray Prescribed Watercourse. South Australia have made the amendments to bring the Plan in line with the National Water Initiative requirement that water access entitlements and water allocations are managed separately from land ownership and separately from the required site approval for taking and using water.
The decision by the Minister to accredit the amendment is a legislative instrument for the purposes of the Legislative Instruments Act 2003, but section 42 of the Legislative Instruments Act 2003 does not apply to the decision (s 65(7)(b) of the Act). This means that the Commonwealth Parliament cannot disallow the Instrument. The sunsetting provisions of the Legislative Instruments Act 2003 apply to the Instrument; however under item 7 of the table in Schedule 4 to the Act the River Murray Prescribed Watercourse Water Allocation Plan will cease to have effect as a transitional water resource plan on 1 July 2014 (i.e., before the sunsetting provisions have effect).
Consultation was undertaken in South Australia as part of the development of the River Murray Prescribed Watercourse Water Allocation Plan, including the release of a concept statement, public meetings and an invitation to stakeholders and the wider community to participate in the development process. Because the effect of the Instrument is effectively to shield the Water Allocation Plan from being overridden by the Basin Plan, it was decided by the Minister that no further consultation was required for the purposes of s 17 of the Legislative Instruments Act 2003.
Overview
The Water Act 2007 was enacted by the Australian Parliament to establish a framework for the sustainable management and use of water resources in Australia, addressing issues such as over-allocation, environmental degradation, and the need for integrated water management. This Act was designed to facilitate the development and implementation of a Basin Plan for the Murray-Darling Basin, which is critical for the long-term sustainability of the nation's water resources. One of the key provisions of the Act is the ability to accredit amendments to transitional water resource plans, which are recognised plans that are respected until their expiry or next major review. The Accreditation of amendment of transitional water resource plan – River Murray Prescribed Watercourse Water Allocation Plan Instrument was introduced to accredit amendments to the River Murray Prescribed Watercourse Water Allocation Plan, ensuring that these amendments are recognised under the Act and can prevail over the Basin Plan to the extent of any inconsistency. The Minister for Climate Change and Water, considering recommendations from the Murray-Darling Basin Authority, accredited the amendment to align the Plan with National Water Initiative requirements, facilitating the unbundling of water rights in the River Murray Prescribed Watercourse.
Scope and Application
The Accreditation of amendment of transitional water resource plan – River Murray Prescribed Watercourse Water Allocation Plan is a legislative instrument under the Water Act 2007, which accredits amendments to the River Murray Prescribed Watercourse Water Allocation Plan. This plan, recognised as a transitional water resource plan under the Act, is deemed to have been accredited by the Minister and prevails over the Basin Plan to the extent of any inconsistency between the two. The Minister's decision to accredit the amendment is a legislative instrument and is not subject to disallowance by the Commonwealth Parliament, although it is subject to sunsetting provisions. The amendments to the Water Allocation Plan, which were made under the Natural Resources Management Act 2004 (SA) and implemented on 1 July 2009, primarily aimed to separate water rights from land ownership in alignment with the National Water Initiative. The Minister's decision to accredit the amendment was made following recommendations from the Murray-Darling Basin Authority and without further consultation, as the effect of the Instrument is to shield the Water Allocation Plan from being overridden by the Basin Plan.
Key Provisions
The Water Act 2007, specifically sections 65(5) and 245, provides the framework for the accreditation of amendments to transitional water resource plans, such as the River Murray Prescribed Watercourse Water Allocation Plan. Section 65(5) grants the Minister the authority to accredit amendments to these plans, a process that renders the amendments legally effective. Section 245 ensures that accredited transitional water resource plans take precedence over the Basin Plan in cases of inconsistency, thereby preserving their authority. The Instrument under consideration accredits amendments to the River Murray Prescribed Watercourse Water Allocation Plan, which were made under the Natural Resources Management Act 2004 (SA) and became effective on 1 July 2009. These amendments primarily involve the separation of water rights in the River Murray Prescribed Watercourse, aligning with the National Water Initiative's stipulations that water access entitlements and allocations should be managed independently from land ownership and site approval processes.
The Act imposes certain obligations and requirements on the Murray-Darling Basin Authority and the Minister for Climate Change and Water. The Authority, under section 65(5)(b) of the Act, must provide recommendations to the Minister regarding the accreditation of amendments to transitional water resource plans. In this instance, the Authority recommended the accreditation of the amendments to the River Murray Prescribed Watercourse Water Allocation Plan. The Minister, in exercising the power under section 65(5) of the Act, must consider these recommendations before making a decision. Furthermore, the Minister's decision to accredit the amendment is a legislative instrument governed by the Legislative Instruments Act 2003, although certain provisions of that Act, such as disallowance under section 42, do not apply to this decision. The accreditation decision is, however, subject to the sunsetting provisions of the Legislative Instruments Act 2003, although the River Murray Prescribed Watercourse Water Allocation Plan will cease to have effect as a transitional water resource plan on 1 July 2014, prior to the application of these provisions.
The Water Act 2007 does not explicitly detail specific offences or penalties for non-compliance with its provisions related to the accreditation of amendments to transitional water resource plans. However, the general framework for water management and the authority granted to the Minister under section 65(5) implies a responsibility to adhere to the legislative process and consider relevant recommendations. Non-compliance with the requirements to accredit amendments as per the Act could potentially lead to legal challenges or administrative actions. Given that the Minister’s decision is a legislative instrument, any failure to follow the prescribed process might be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977. Moreover, the integrity of the water management process, particularly in the Murray-Darling Basin, is crucial, and any failure to properly accredit amendments could have significant implications for water resource management and compliance with national and international water management standards.