Explanatory Statement
Issued by Authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management
Water Act 2007
Water Act (Wimmera-Mallee (surface water) Water Resource Plan) Accreditation Decision 2019
Legislative Authority
The Water Act 2007 (the Act) provides the legislative framework for managing Australia’s largest water resource, the Murray-Darling Basin, and makes provision for other matters of national interest in relation to water and water information.
Subsection 54(1) of the Act requires that there be a water resource plan for each water resource plan area identified in the Basin Plan 2012 (the Basin Plan). Water resource plans set out water management arrangements for surface water and groundwater within each water resource plan area.
Under section 63 of the Act, the Basin States (Queensland, New South Wales, Victoria, South Australia and the Australian Capital Territory) may submit a proposed water resource plan to the Murray-Darling Basin Authority (the Authority) for consideration and the Authority is required to provide the proposed water resource plan and its recommendations on accreditation to the Minister. If the Authority gives the Minister a proposed water resource plan and recommendations, the Minister must consider the proposed water resource plan and the recommendations and either accredit the water resource plan or not accredit the water resource plan. The decision to accredit or not to accredit a water resource plan must be made in writing and is is a non-disallowable legislative instrument.
Purpose
The purpose of the Water Act (Wimmera-Mallee (surface water) Water Resource Plan) Accreditation Decision 2019 (the Accreditation Decision) is to set out the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management’s (the Minister’s) decision, under section 63 of the Act to accredit the Wimmera-Mallee (surface water) Water Resource Plan (the WRP).
The Minister must accredit a proposed water resource plan if, after considering recommendations from the Authority (provided in accordance with subsection 63(3) of the Act), the Minister is satisfied that the proposed water resource plan is consistent with the relevant Basin Plan.
Subsection 63(6) of the Act provides that the relevant basin plan for the water resource plan is the version of the basin plan that the applies in relation to the water resource plan under subsection 56(2). For the purposes of subsections 56(2) and 56(2A) of the Act, the relevant Basin Plan for the Accreditation Decision is the version that was registered on the Federal Register of Legislation on 23 January 2017 (F2017C00078).
Background
The WRP was developed by the State of Victoria, in consultation with key stakeholders and regional communities, and was given to the Authority on 3 July 2019, in accordance with subsection 63(1) of the Act. The WRP is set out, or identified, in the document titled Wimmera-Mallee Water Resource Plan. (That document also sets out, or identifies, the water resource plan for the Wimmera-Mallee (groundwater) water resource plan area, which is not the subject of this Accreditation Decision.) The Authority published the proposed WRP on their website on 2 August 2019. The WRP sets out water management arrangements for surface water within the Wimmera-Mallee (surface water) WRP area. The WRP applies to one surface water sustainable diversion limit (SDL) resource unit. The SDL resource unit is identified in section 6.02 of the Basin Plan when read with Schedule 2 at table item 24 (surface water).
The Authority considered the WRP and, as required by subsection 63(3) of the Act, prepared recommendations for the Minister on whether the WRP should be accredited. The Authority formed the view that the WRP is consistent with the relevant Basin Plan and recommended that the Minister accredit the WRP. The Authority gave the WRP and its recommendations on the WRP to the Minister on 23 August 2019.
The Minister considered the WRP and the Authority’s recommendations as required by subsection 63(5) of the Act and was satisfied that the WRP is consistent with the relevant Basin Plan. As required by subsection 63(6) of the Act, the Minister made the decision to accredit the WRP.
Impact and Effect
The WRP will be given effect through sections 58 and 59 of the Act. In summary, section 58 provides that the Authority and any other agency of the Commonwealth must act consistently with, and give effect to, an accredited WRP, subject to some exceptions. In summary, section 59 provides that the Basin Officials Committee, an agency of a Basin State, an operating authority, an infrastructure operator or the holder of a water access right must not act inconsistently with an accredited WRP, subject to some exceptions.
Consultation
Section 17 of the Legislation Act 2003 (the Legislation Act) requires that before making a legislative instrument, the rule-maker must be satisfied that any consultation that the rule-maker considers to be appropriate and reasonably practicable to undertake has been undertaken.
Section 10.07 of the Basin Plan requires the consultation to be undertaken in the preparation of the WRP to be described. Section 10.53 also requires a WRP to be prepared having regard to the views of relevant Indigenous organisations with respect to particular matters. A description of the consultation undertaken by Victoria in relation to the development of the WRP is set out in Part 5.2.6 of the document titled Wimmera-Mallee Water Resource Plan, which is a key document that forms part of the WRP. The proposed Wimmera-Mallee Water Resource Plan was available on 2 August 2019 on the Authority’s website at https://www.mdba.gov.au/basin-plan-roll-out/water-resource-plans.
The Authority consulted with relevant Indigenous organisations, namely, the Murray Lower Darling Rivers Indigenous Nations (MLDRIN), on whether the proposed WRP is consistent with the requirements in Chapter 10, Part 14 of the Basin Plan, regarding Indigenous values and uses.
The Office of Best Practice Regulation (OBPR) have advised that a regulation impact statement is not required (ID: 21669).
Paragraph 63(7)(b) of the Act provides that the Accreditation Decision is a legislative instrument for purposes of the Legislation Act, but that section 42 (disallowance) of the Legislation Act does not apply to the Accreditation Decision. Consequently, a statement of compatibility with Human Rights is not required in accordance with paragraph 15J(2)(f) of the Legislation Act.
Attachment A
Details of the Water Act (Wimmera-Mallee (surface water) Water Resource Plan) Accreditation Decision 2019
Section 1—Name
This section provides that the name of the instrument is the Water Act (Wimmera-Mallee (surface water) Water Resource Plan) Accreditation Decision 2019 (Accreditation Decision).
Section 2—Commencement
This section provides that the Accreditation Decision commences the day after it is registered on the Federal Register of Legislation.
Section 3—Authority
This section provides that the Accreditation Decision is made under section 63 of the Act.
Section 4—Definitions
This section sets out the definitions that are used throughout the Accreditation Decision. It defines “Act” to mean the Water Act 2007. It also includes a note that explains that a number of expressions used in the Accreditation Decision are defined in section 4 of the Act, including “Authority” and “Basin Plan”.
Section 5—Accreditation of Wimmera-Mallee (surface water) Water Resource Plan
This section provides that the Wimmera-Mallee (surface water) Water Resource Plan that is set out, or identified, in accordance with section 10.04 of the Basin Plan, in the document titled Wimmera-Mallee Water Resource Plan that was given to the Authority by Victoria under subsection 63(1) of the Act on 3 July 2019, is accredited.
The document titled Wimmera-Mallee Water Resource Plan also sets out, or identifies, the water resource plan for the Wimmera-Mallee (groundwater) water resource plan area, which is not the subject of this Accreditation Decision.
The accredited WRP is available on the Authority’s website at https://www.mdba.gov.au/basin-plan-roll-out/water-resource-plans (as at 9 September 2019).