EXPLANATORY STATEMENT
Select Legislative Instrument No. 75, 2014
Issued by the Authority of the Parliamentary Secretary to the Minister for the Environment
Water Act 2007
Water Amendment (Murray-Darling Basin Agreement) Regulation 2014 (No. 1)
Section 256 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.
Section 18C(1) of the Act provides that regulations may be made to amend Schedule 1 to the Act. Schedule 1 sets out the Murray‑Darling Basin Agreement (the Agreement). Section 18C(1) requires the agreement of the Murray‑Darling Basin Ministerial Council (Ministerial Council) to any amendments to Schedule 1. The Ministerial Council agreed to the amendments in this Regulation on 9 May 2014.
The Agreement is between the contracting governments of the Commonwealth, New South Wales, Victoria, South Australia, Queensland and the Australian Capital Territory. The Ministerial Council consists of a Minister of each of the contracting governments. While the Agreement is set out in Schedule 1 to the Act, it is not Commonwealth legislation. Regulations are made to update the text of the Agreement set out in Schedule 1 to the Act.
The purpose of this Regulation is to amend the text of the Agreement set out in Schedule 1 to the Act to give effect to the Governance Reforms for Joint Programs as agreed to by the Ministerial Council.
Joint Programs are programs required under the Agreement to be implemented by the Murray‑Darling Basin Authority (the Authority) on behalf of the contracting governments. They are programs for jointly funded activities in relation to ‘River Murray operations’ and natural resource management.
The Governance Reforms for Joint Programs provide increased clarity and certainty regarding the respective responsibilities of the Ministerial Council, the Basin Officials Committee and the Authority, and set out the relationships and commitments between all three regarding how they will interact into the future.
In strengthening Ministerial Council oversight of Joint Programs, the agreed reforms include a Ministerial Statement of Intent and Service Level Agreement between the Ministerial Council and the Authority, supported by the amendments made to the Agreement by this Regulation.
The purpose of the Statement of Intent is to set out how the ministers of the Ministerial Council will work together, and their expectations of how the Basin Officials Committee and the Authority will work to meet their responsibilities to the Ministerial Council.
The purpose of the Service Level Agreement between the Ministerial Council and the Authority is to clearly set out the level of service to be provided to the Council by the Authority.
The Statement of Intent and Service Level Agreement will be published on the Authority’s website.
Regulation Impact Statement
The proposal will not have any regulatory impact on business, individuals or community organisations.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Water Amendment (Murray-Darling Basin Agreement) Regulation 2014 (No.1)
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.
Overview of the Legislative Instrument
This legislative instrument amends Schedule 1 of the Act to give effect to the Governance Reforms for Joint Programs agreed to by the Ministerial Council. The Ministerial Council agreed to this package of reforms to strengthen the governance arrangements that underpin the continuing cooperation between jurisdictions, and the management of joint assets, water resources and programs by the Authority for the participating governments. These reforms strengthen the clarity and certainty regarding the respective responsibilities of the Ministerial Council, the Basin Officials Committee and the Authority, and how they will interact with one another into the future. In strengthening Ministerial Council oversight of Joint Programs, agreed reforms include a Ministerial Statement of Intent and Service Level Agreement between the Council and the Authority, supported by this package of amendments.
Human rights implications
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’.[1] The purpose of the Murray–Darling Basin Agreement is to promote and co-ordinate effective planning and management for the equitable, efficient and sustainable use of the water and other natural resources of the Murray‑Darling Basin.
The provisions in the Agreement relating to Joint Programs support the human right to water. The amendments made to the Agreement improve the governance arrangements for the Joint Programs for jointly funded works and measures.
Conclusion
The legislative instrument is compatible with human rights because it supports the human right to water.
The Murray-Darling Basin Authority, the Basin Officials Committee and the Ministerial Council were consulted in preparing this Regulation.
This Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation commences on the day it is registered on the Federal Register of Legislative Instruments.
ATTACHMENT
Details of the Water Amendment (Murray-Darling Basin Agreement) Regulation 2014 (No.1)
Section 1 - Name of Regulation
This section provides that the title of the Regulation is the Water Amendment (Murray-Darling Basin Agreement) Regulation 2014 (No.1) (the Regulation).
Section 2 - Commencement
This section provides that the Regulation commences on the day it is registered.
Section 3 - Authority
This section provides that the Regulation is made under the Water Act 2007 (the Act).
Section 4 - Expiry of this Regulation
Section 4 provides for the Regulation to cease on the day after it commences. The Regulation when it is commences will amend the text of the Murray-Darling Basin Agreement in Schedule 1. After the text of the Agreement is amended the Regulation will have no continuing legal effect and will be ‘spent’. The expiry is consistent with the Government’s aim of delivering clearer laws and reducing red tape.
Section 5 - Schedule (s)
This section provides that each instrument that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule and any other item in a Schedule has effect according to its terms.
Schedule 1 to the Regulation
Amendments to Schedule 1 of the Water Act 2007
Item [1] - Clause 2
This item inserts a definition of ‘service level agreement’ into Clause 2 of Schedule 1. ‘Service level agreement’ means the service level agreement referred to in the new clause 35A. The purpose of the ‘service level agreement’ is to set out how the Authority will undertake its functions under the Agreement and deliver the programs agreed by the Council, with the objective of enhancing accountability, transparency and efficiency in the delivery of Joint Programs.
Item [2] - After paragraph 9(c) of Schedule 1
This item inserts a new paragraph 9(ca). The item clarifies that the Ministerial Council has the function to approve any amendments to the annual corporate plan prepared in accordance with clause 35. The paragraph adds to the Ministerial Council’s oversight over the Authority.
Item [3] - After paragraph 9(d) of Schedule 1
This item inserts a new paragraph 9(da). The item adds the approval of the statement of intent to the Ministerial Council’s functions. The statement of intent is intended to set out: how the Ministerial Council intends to work together; and the Council’s expectations of how the Basin Officials Committee and the Authority will work to meet their responsibilities to the Council.
Item [4] - Paragraph 29(2)(d) of Schedule 1
This item omits the word “and” at the end of paragraph 29(2)(d). This is a consequential amendment as a result of item [3], which inserts paragraph 29(2)(da).
Item [5] - After paragraph 29(2)(d) of Schedule 1
This item inserts new paragraph 29(2)(da). The item requires the Authority to act in accordance with the service level agreement in carrying out its functions. This item adds clarity and certainty to the Authority’s responsibilities.
Item [6] - After sub‑clause 35(1) of Schedule 1
This item inserts new subclause 35(1A). The item states that if the Ministerial Council requests the Authority to prepare a draft amendment to the corporate plan to give effect to a decision of the Ministerial Council, the Authority must prepare the draft amendment and provide it to the Basin Officials Committee. The sub-clause enables the Ministerial Council’s preferences to be clearly reflected in the delivery of Joint Programs.
Item [7] - Sub‑clause 35(2) of Schedule 1
This item omits the words “considering the draft amendment” in sub-clause 35(2) and substitutes the words “considering a draft amendment provided to it under sub‑clause (1) or (1A)”. Currently the sub‑clause only provides for amendments to the annual corporate plan as initiated by the Authority. The amendment establishes that the Authority must prepare a draft amendment to the annual corporate plan for consideration by the Ministerial Council if requested to do so by the Council. The sub-clause strengthens the Ministerial Council oversight over the Authority.
Item [8] - Paragraph 35(3)(b) of Schedule 1
This item omits the words “for further consideration” and substitutes the words “and request that the Authority make changes to the draft amendment”. This item strengthens the role of the Ministerial Council to amend the annual corporate plan. Currently the Ministerial Council may refer a draft amendment to the corporate plan back to the Authority for further consideration. The amendment allows the Ministerial Council to request the Authority to make changes to the draft amendment of the corporate plan (as agreed by the Ministerial Council). The sub-clause strengthens the Ministerial Council oversight over the Authority.
Item [9] - At the end of Part V of Schedule 1
This item inserts the new clause 35A. The item states that the service level agreement between the Ministerial Council and the Authority will set out the key elements of how the Authority will undertake its responsibilities for the Joint Programs and other functions under this Agreement, including:
- the corporate plan (deliverables, standards, costs, timelines, risk assessment and risk treatment); and
- the asset management plan (annual review and delivery); and
- the objectives and outcomes document; and
- financial and performance reporting; and
- management and decision making protocols; and
- audit and review processes.
The purpose of the ‘service level agreement’ is to set out how the Authority will undertake its functions under the Agreement and deliver the programs agreed by the Council, with the objective of enhancing accountability, transparency and efficiency in the delivery of Joint Programs.
Amendments to the Water Regulations 2008
Item [10] - Part 1A
This item repeals Part 1A of the Regulations. As the text of Murray‑Darling Basin Agreement in Schedule 1 to the Act has been amended by the regulations, the regulations have no continuing legal effect and are ‘spent’.
Item [11] - Schedule 1A
This item repeals Schedule 1A to the Regulations. As the text of Murray‑Darling Basin Agreement in Schedule 1 to the Act has been amended by Schedule 1A, Schedule 1A has no continuing legal effect and is ‘spent’.
[1] CESCR General Comment No.15: The Right to Water E/C 12/2002/11.