Water Amendment Act 2008

Overview

The Water Amendment Act 2008 No. 139, enacted by the Parliament of Australia, serves to amend the Water Act 2007 and address several related issues. This legislation primarily aims to facilitate the transition from the Murray-Darling Basin Commission to the Murray-Darling Basin Authority, ensuring continuity and effectiveness in managing the water resources of the Murray-Darling Basin. It also seeks to refine the processes for developing and amending the Basin Plan, ensuring that critical human water needs are adequately prioritised and that there are clear mechanisms for managing water access rights and entitlements. Furthermore, the Act includes provisions for the oversight and regulation of water charges and water market rules, as well as measures to address the implications of the Snowy Hydro Corporatisation Act 1997 on water allocations within the Murray-Darling Basin. Through these amendments, the Act seeks to enhance the coordination and efficiency of water management across the basin, reflecting the importance of sustainable water use and environmental protection in the region.

Scope and Application

The Water Amendment Act 2008 No. 139 is an Act of the Commonwealth of Australia that amends the Water Act 2007. This Act applies to the Murray-Darling Basin, a region that includes parts of New South Wales, Victoria, South Australia, Queensland, and the Australian Capital Territory. The primary focus of the Act is on the management of water resources within this basin, particularly concerning the Murray-Darling Basin Agreement and related agreements. The Murray-Darling Basin Authority, established under this Act, has the power to manage and regulate water resources, including the implementation of water charge rules and water market rules in referring states and the Australian Capital Territory. These rules apply to various charges and transactions related to water access rights, water delivery rights, and water entitlements. The Act also delineates the roles and responsibilities of the Authority and other entities such as the Basin Community Committee, the Murray-Darling Basin Ministerial Council, and the Basin Officials Committee. Additionally, the Act addresses transitional provisions from the Murray-Darling Basin Commission to the Authority, including the transfer of assets, liabilities, and records. It provides for the vesting of transitional assets and liabilities of the Murray-Darling Basin Commission into the Authority and the substitution of the Authority in pending legal proceedings involving the Commission. The Act further outlines the procedures for making water charge and water market rules, including consultations with relevant states and infrastructure operators, and specifies the civil penalties for contraventions of these rules. The Act also includes provisions for monitoring and reporting on water charges and market activities by the Australian Competition and Consumer Commission (ACCC). Exemptions and exclusions are specified for certain water resources and activities, such as urban water supply activities beyond the point of water removal from a basin water resource. The Act specifies the geographic reach of its provisions to include basin water resources, water service infrastructure, and water access entitlements within the Murray-Darling Basin. The operation of the Act is not intended to exclude or limit the concurrent operation of state laws, except where there is a direct inconsistency. Subordinate instruments may extend or restrict the application of the Act, including regulations that can modify the operation of the Act to deal with interactions between Commonwealth and state laws. The Act does not apply to certain matters declared by state laws to be excluded, and it provides for the review and potential modification of these exclusions through regulations.

Key Provisions

• The Water Amendment Act 2008 (No. 139, 2008) primarily amends the Water Act 2007, introducing several new provisions and altering existing ones to facilitate better management and regulation of water resources within the Murray-Darling Basin. The Act includes new sections and parts, such as Part 1A, which defines the Murray-Darling Basin Agreement and the roles of various entities like the Murray-Darling Basin Authority and the Basin Officials Committee within the context of this agreement. It also introduces Part 2A, which mandates the consideration of critical human water needs in developing the Basin Plan, ensuring that these needs are prioritised, particularly in the River Murray System. Furthermore, the Act mandates specific requirements for the management of water resources, such as the need for the Basin Plan to include statements about the amount of water required to meet critical human water needs and to specify conditions under which different tiers of water sharing arrangements commence.
• The Water Amendment Act 2008 imposes several obligations on the parties it governs. For instance, it requires the Murray-Darling Basin Authority to manage money and assets in accordance with the Murray-Darling Basin Agreement and to handle the transformation of water entitlements to enable trading. Additionally, it mandates that the Basin Officials Committee and agencies of referring States or the Australian Capital Territory must not perform or fail to perform any act inconsistent with the Basin Plan unless explicitly permitted by the Murray-Darling Basin Ministerial Council. The Act also obligates the Authority to formulate model water charge rules and model water market rules, which contribute to achieving the objectives and principles of the Basin water charging and water market rules, respectively. These rules are to be made with regard to advice from the Australian Competition and Consumer Commission (ACCC) and after public consultations.
• The Act stipulates various offences and penalties for breaches of its provisions. Civil penalty provisions are included in sections 92(8) and 97(7) of the Act, where a contravention of these provisions can result in a penalty of 200 penalty units. Additionally, section 92(10) and section 97(9) allow a person who suffers loss or damage due to another's contravention of these civil penalty provisions to recover the amount of the loss or damage through legal action against the person responsible for the contravention. The Act also includes measures to ensure compliance and oversight, such as requiring the ACCC to monitor water charges and compliance with water charge rules, as well as the compliance with water market rules. Failure to comply with these rules can result in significant penalties and legal consequences.
• The Act includes provisions that address the interaction between Commonwealth water legislation and State laws. For instance, section 250A defines "Commonwealth water legislation" to mean the Water Act 2007, the regulations, or any other instrument made under the Act. Section 250B ensures that the Commonwealth water legislation is not intended to exclude or limit the concurrent operation of State laws, except in cases of direct inconsistency. It also outlines that if a person is convicted of an offence under both Commonwealth water legislation and a State law for the same act or omission, they cannot be convicted under the other law. Furthermore, section 250C specifies that if a State law declares certain matters to be excluded from the operation of Commonwealth water legislation, those provisions will not apply to the State in respect of those matters. The Act also allows for the modification of Commonwealth water legislation to avoid inconsistencies with State laws, as per section 250E. Non-compliance with the Act's provisions can lead to civil or criminal penalties, depending on the severity of the breach and the specific provisions contravened.

Legal classification tags

Area of Law

Environmental Law

Water Law

Instrument

Amending Act

Concepts

Commencement Provisions

Repeal & Amendment

Licensing & Registration

Reporting & Disclosure Obligations

Enforcement Powers

Compliance Obligations

Regulatory Standards