Explanatory Statement

Issued by the authority of the Minister for the Environment and Water

Water Act 2007

Water Amendment (Water Markets Decisions) Regulations 2026

Legislative Authority

Subsection 256(1) of the Water Act 2007 (Water 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.

Part 2 of Schedule 3 of the Water Amendment (Restoring Our Rivers) Act 2023 (RoR Act) inserts a new Part 5A into the Water Act, with effect from 1 July 2026. Part 5A provides for water announcement obligations, and insider trading and market manipulation prohibitions in the Water Act.

Purpose

The purpose of the Water Amendment (Water Markets Decisions) Regulations 2026 (the Amendment Regulations) is to amend the Water Regulations 2008 by prescribing the decisions that are water markets decisions, their first announcement, reports that must be provided to the Bureau of Meteorology (the Bureau), the period for providing reports, the manner for providing reports and record keeping requirements relating to the announcement of water markets decisions.

The purpose of the Amendment Regulations is to:

Improve how important decisions that are reasonably likely to have a material effect on the market are announced to the public;
Support transparency and ensure equitable access to important water markets decision information for all market participants;
Enhance market integrity and reduce opportunities for inappropriate information advantages;
Support the insider trading prohibition in the Water Act which prohibits persons from acting on unpublished water markets decision information.

The Amendment Regulations replace sections 12.49 to 12.52 of the Basin Plan 2012 (the Basin Plan). These sections of the Basin Plan are to be repealed on 1 July 2026 and set out similar requirements to make water announcements generally available. The Amendment Regulations strengthen these requirements by extending them to apply to significant decisions made by irrigation infrastructure operators, providing greater clarity about the decisions that are water markets decisions, and prescribing the reports that must be provided to the Bureau for central publication.

The ability to prescribe such matters in regulations is consistent with good regulatory practice. Over time, market behaviours and technological advances are likely to necessitate changes to the manner in which information is to be provided to the Bureau. Allowing these regulations to prescribe such matters provides the necessary flexibility to respond quickly to changes in the regulatory framework and ensures that the Bureau receives information in a way that is useful and enables it to carry out its role in the overall framework.

Background

The Water Act makes provision for the management of the water resources of the Murray-Darling Basin, and for other matters of national interest in relation to water and water information, and for related purposes.

Commonwealth and Basin State agencies have existing water announcement obligations under the Basin Plan that apply to allocation, carryover announcements and certain other public announcements that may have a material effect on the price or value of water access rights.

In October 2022, the Australian Government announced its commitment to implementing the Water Market Reform Roadmap (Roadmap) to restore transparency, integrity and confidence in Murray–Darling Basin water markets. This formed the Australian Government’s response to the 2021 Australian Competition and Consumer Commission (ACCC) Murray–Darling Basin water markets inquiry – final report[1].

Recommendation 2 of the Roadmap recommended enacting legislation to prohibit price manipulation and insider trading for all tradeable water rights, including water delivery and irrigation rights. The Roadmap also recommended that the current mandatory water announcement requirements should largely remain and be extended to irrigation infrastructure operators, and that decisions should be provided to the Bureau in a timely way for publication (Roadmap recommendation 2).

The RoR Act amends the Water Act to, among other things, include in the Water Act expanded obligations in relation to water markets decisions, including their announcement and a prohibition on insider trading related to water announcements, to replace existing obligations in the Basin Plan.

Part 5A of the Water Act expands on the Basin Plan provisions by recognising that irrigation infrastructure operators also made significant decisions that can have a material effect on the market and requiring that announcements of water markets decisions should be provided to the Bureau of Meteorology for publication in a central location.

The Amendment Regulations prescribe matters that support the operation of the new obligations in Part 5A, including specifying the decisions that are water markets decisions. Consistent with the previous Basin Plan obligations relating to water announcements, the Amendment Regulations provide that trade decisions, trading strategy decisions, allocation decisions and carryover decisions continue to be water markets decisions. Similarly, the Amendment Regulations maintain that a trade decision is not a water markets decision where it is covered by a trading strategy exception that was also provided for within the Basin Plan.

The new term “water markets decisions” is relevant to both water announcement obligations and insider trading related to water announcements. Consistent with the RoR Act Explanatory Memorandum, the list of water markets decisions in this regulation are an exhaustive list to provide certainty and include decisions which could reasonably be expected, if announced, to have a material effect on the price or value of eligible tradeable water rights.

Where a water markets decision is going to be put into the public domain, Part 5A of the Water Act requires that it must be done in accordance with the new obligations so that the information is first announced in a way that is equitable to the market. Part 5A provides that such a decision must be first announced by either:

Giving the decision and details to the Bureau for publication as the means by which the decision is first announced, or
Announcing the decision through an alternative method prescribed in the regulations and subsequently reporting the announcement and details of the announcement to the Bureau within the time period prescribed in regulations.

The purpose of this is to ensure that water markets decisions are announced in a manner that makes them visible to the market, so that all interested participants are able to make informed trading decisions. This requirement should not prevent entities from continuing to communicate with water market participants through their own notifications or publications if they are compliant with the water markets decision first announcement requirements.

The Bureau has functions and powers under Part 7A of the Water Act to publish water markets decisions and will make information about all water markets decisions made throughout the Basin available via a single website. This will support increased visibility and transparency of decisions which will affect the market.

The ACCC is the regulator for information provided to the Bureau relating to water markets decisions, as well as monitoring and enforcing the insider trading and market misconduct prohibitions.

Consultation

Extensive stakeholder consultations have been conducted since December 2023 with key stakeholders.

Key stakeholders include the Basin State authorities (New South Wales, Queensland, Victoria, South Australia and the Australian Capital Territory); public and private irrigation infrastructure operators (IIOs); Commonwealth agencies; government environmental water holders; the Bureau; and the ACCC as the enforcement agency.

Targeted consultation seeking feedback from key stakeholders included an Introductory Paper in December 2023, followed by individual discussions with IIOs between November 2023 and April 2024.

The public consultation process involved:

A Discussion Paper in October 2024;
A Policy Proposal Paper in May 2025; and
A Policy Position Paper in September 2025.

For public consultation on the Discussion Paper and Policy Proposal Paper, the department invited written submissions and held online information and Q&A sessions during the consultation period to assist stakeholders in providing feedback. Twenty submissions were received in November 2024 in response to the Discussion Paper. Seven submissions were received in July 2025 in response to the Policy Proposal Paper.

For public consultation on the Policy Position Paper, the department held online information and Q&A sessions about the positions. Recordings of these sessions are available on the department’s website at https://www.dcceew.gov.au/water/policy/markets/reform/water-markets-decisions.

The department has also met individually with key stakeholders.

Stakeholders actively engaged in consultation by participating in information sessions, meeting with the department directly, and providing written submissions and feedback on the policy proposals and draft regulatory positions.

Overall, most of the feedback was supportive of the proposed regulatory arrangements and the objectives of improving transparency and fairness in water markets. However, some individuals highlighted risks of unclear obligations and the unintended capture of minor decisions imposing additional regulatory burden.

To address these comments, the policy was modified to:

Clarify the scope of decisions to ensure only genuinely market-relevant decisions are captured, including through the inclusion of exceptions where necessary to carve out minor or administrative actions; and
Align announcement and reporting processes with operational realities, including compatibility with existing state legislative requirements.

These refinements were implemented to balance operational feasibility of obligations with the objectives of improving market transparency and fairness, ensuring the Amendment Regulations are both effective and practically implementable.

Incorporation by Reference

Regulation 5A.04 (Reports about water markets decisions) provides for the incorporation by reference of lists of the geographic areas and types of eligible tradeable water rights set out in the Water Markets Data Standards to be incorporated by reference (see subregulations 5A.04(2) and (3)). These relate to the obligations to report, for the purposes of subsection 101B(2) of the Act, the geographic area or areas to which the decision relates (see paragraph 5A.04(1)(d)) and the type or types of eligible tradeable water rights to which the decision relates (see subparagraph 5A.04(1)(g)(i)).

The Water Markets Data Standards are a set of standards made by the Director of the Bureau under subsection 135J(1) of Part 7A of the Water Act relating to water markets information. Water Markets Data Standards may deal with any or all of the following:

a) the details for collecting, generating, recording or providing water markets information as required by Division 4 of Part 7;

b) the details of the persons or bodies that will be required to collect, generate, record or provide water markets information as required by Division 4 of Part 7; and

c) any other matter relating to water markets information that is specified in the Water Regulations.

From 1 July 2026, section 256 of the Water Act provides for the incorporation of material as in force or existing from time to time into Part 5A.

Lists of geographic areas and types of eligible tradeable water rights may change over time, particularly in response to changes in state legislation.

Incorporating the lists of the geographic areas and types of eligible tradeable water rights of the Water Markets Data Standards will ensure there is consistency in reporting these details to the Bureau. This will simplify reporting for those persons who report under both Part 5A and Part 7A of the Water Act.

Section 101Q of the Water Act provides that if, apart from section 101Q, a person would be required to give the same information under both Parts 5A and 7 of the Water Act to the Bureau, and they have given information under Part 5A, they are not required to give the information under Part 7. Similarly, section 135V seeks to avoid regulatory duplication between Part 7 and Part 7A, by providing that if, apart from section 135V, a person would be required to give the same information under both Parts 7 and 7A, and they have given information under Part 7A, they are not required to give the information under Part 7.

Sections 101Q and 135V are intended avoid the duplication of information required to be given by persons to the Bureau and to assist industry in understanding what its obligations are. Nonetheless, it is likely these persons will use the same systems to collect and store information, regardless of whether it is for Part 5A, Part 7 or Part 7A. Utilising the same lists for information to be given to the Bureau relating to geographic areas and eligible tradeable water rights will avoid confusion and reduce regulatory burden for those providing that information. It will also ensure that these lists remain up to date and consistent with changes in state legislation.

Privacy

Privacy obligations on the decision-maker

The Amendment Regulations impose publication, reporting and record keeping requirements on decision-makers, in regulations 5A.03, 5A.04 and 5A.07. Some of these may require the collection of personal information, for example: subparagraph 5A.04(1)(b)(ii) requires an email address of a person, or an area, within the agency or operator that may be contacted for information about the decision; and subparagraph 5A.04(1)(c)(iv) provides if the decision-maker considers it relevant to do so, the decision maker must provide a link to any additional documents and information relating to the decision.

Any personal information collected by the decision-maker would be subject to the privacy obligations applying in the relevant jurisdiction, but the disclosure of that information to the Bureau would be authorised by section 101B of the Water Act.

Privacy obligations on the Bureau

Information or documents provided to the Bureau by water markets authorities as authorised by section 101B of the Water Act may contain personal information. The Privacy Act 1988 (Privacy Act) and the Australian Privacy Principles contained in Schedule 1 of the Privacy Act would apply to any personal information provided to the Bureau.

Further, paragraph 135D(2)(b) of the Water Act prohibits the Director of Meteorology from publishing information about water markets decisions to the extent that the information identifies a particular individual by means of the individual’s name, address, customer number or other identifier (including an email address) unless the information is already published or is otherwise publicly available.

The Bureau may disclose information to the ACCC under subsection 135P(2) of the Water Act.

Privacy obligations on the ACCC

Under section 101D (ACCC may require person to give information or produce documents) of the Water Act, the ACCC can require a person who is required to keep records about water markets decisions. to give information or to provide documents about those records. The information or documents must be given to the ACCC within 21 days after the notice is received by the person. A person failing to comply with the notice may be liable to a civil penalty of 100 penalty units (currently $33,000) if the person fails to comply with the notice. A person providing false or misleading information in compliance or purported compliance with a notice given by the ACCC under section 101D is liable to a civil penalty of 120 penalty units (currently $39,600).

Under section 239AJ of the Water Act (‘Power [of the ACCC] to require information, documents and evidence’), the ACCC, the Chairperson of the ACCC or a Deputy Chairperson of the ACCC may require information, which may include personal information. This power may only be exercised if the ACCC, the Chairperson or Deputy Chairperson has reason to believe that a person is capable of giving information, producing documents or giving evidence relating to specified contraventions or is relevant to the performance of a function or the exercise of a power by the ACCC under the Water Act, the Water Regulations or the Water Markets Intermediaries Code. The specified contraventions include a contravention under Part 5A of the Water Act or regulations made under Part 5A of the Water Act (see subparagraph 239(3)(a)(ii) as amended by Item 33 of Schedule 6, Part 2 of the RoR Act). Significant penalties may apply (including imprisonment for 2 years or 100 penalty units, or both) where a person refuses or fails to comply with a notice under section 239AJ of the Water Act. Alternatively, a civil penalty of up to 100 penalty units may apply.

Information or documents required or compelled by the ACCC may contain personal information.

The Privacy Act 1988 (Privacy Act) and the Australian Privacy Principles contained in Schedule 1 of the Privacy Act would apply to any personal information disclosed to the ACCC by the Bureau under section 135P of the Water Act or required by the ACCC under sections 101D or 239AJ of the Water Act.

In addition, any personal information disclosed to the ACCC by the Bureau under section 235P of the Water Act or required or compelled by the ACCC under sections 101D or 239AJ of the Water Act, also falls within the definition of “protected information” under subsection 155AAA(21) of the Competition and Consumer Act 2010 (Competition and Consumer Act). This “protected information” is subject to the limitations on disclosure under that Act.

Information obtained by the ACCC under Part XID of the Competition and Consumer Act which relates to Part 5A is also protected information and subject to the same limitations on disclosure.

Details/ Operation

The Amendment Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

Details of the Amendment Regulations are set out in Attachment A.

Other

The Amendment Regulations are compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.

Attachment A

Details of the Water Amendment (Water Markets Decisions) Regulations 2026

Section 1 – Name

This section provides that the name of the instrument is the Water Amendment (Water Markets Decisions) Regulations 2026 (Amendment Regulations).

Section 2 – Commencement

This section provides for the Amendment Regulations to commence on 1 July 2026. This aligns with the commencement of Schedule 3, Part 2 of the Water Amendment (Restoring Our Rivers) Act 2023, which inserts Part 5A into the Water Act 2007 (the Water Act).

Section 3 – Authority

This section provides that the Amendment Regulations are made under the Water Act.

Section 4 – Schedule

This section provides that the Water Regulations 2008 (Water Regulations) are amended as set out in Schedule 1. Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

SCHEDULE 1 – AMENDMENTS

Part 1 – Main Amendments

Water Regulations 2008

Item 1 – Part 5A

This item inserts a new Part 5A – Water markets decisions into the Water Regulations.

The new Part 5A – Water markets decisions, has two divisions:

“Division 1 – Preliminary”, which sets out the purposes of the Part
“Division 2 – Announcing and reporting water markets decisions”, which prescribes the requirements for announcing and reporting water markets decisions.

Division 1 – Preliminary

5A.01 Purpose of this Division

This regulation provides that, for the purposes of subsection 4(1) and sections 101B and 101C of the Act, this Part deals with the following matters for announcing and reporting water markets decisions:

the decisions that are water markets decisions;
how the first announcement of water markets decisions is to be made;
what reports relating to water markets decisions must be provided to the Bureau of Meteorology (the Bureau) by the decision-maker;
the period for providing those reports to the Bureau;
the manner of providing those reports to the Bureau; and
record-keeping requirements for water markets decisions.

Division 2 – Announcing and reporting water markets decisions

5A.02 Water markets decisions

This regulation sets out the decisions which are water markets decisions for the purposes of subsection 4(1) of the Act. This term is relevant to water announcement obligations and insider trading related to water announcements.

To be a water markets decision, the decision must have been made by either an agency of the Commonwealth or of a Basin State; or an irrigation infrastructure operator (IIO).

The terms “agency of the Commonwealth”, “Basin State” and “agency of a State” are defined in subsection 4(1) of the Act.

agency of the Commonwealth means:

(a) a Minister of the Crown for the Commonwealth; or

(b) a Department of State for the Commonwealth; or

(c) a body (whether incorporated or not) established or appointed for a public purpose by or under a law of the Commonwealth; or

(d) a body established, or appointed, by the Governor-General; or

(e) a person holding or performing the duties of:

(i) an office established by or under; or

(ii) an appointment made under; a law of the Commonwealth (other than the office of head of a Department of State for the Commonwealth (however described)); or

(f) a person holding or performing the duties of an appointment that is made by the Governor-General (otherwise than under a law of the Commonwealth); or

(g) a company in which the Commonwealth, or a body corporate referred to in paragraph (c) or (d), has a controlling interest.

Basin State means the following:

(a) New South Wales;

(b) Victoria;

(d) South Australia;

(e) the Australian Capital Territory.

agency of a State means:

(a) a Minister of the Crown for the State; or

(b) a Department of State for the State; or

(c) a body (whether incorporated or not) established or appointed for a public purpose by or under a law of the State (including a local government body); or

(d) a body established or appointed by:

(i) a Governor of the State; or

(ii) a Minister of the Crown for the State; or

(iii) if the State is the Australian Capital Territory—the Australian Capital Territory Executive; or

(e) a person holding or performing the duties of:

(i) an office established by or under; or

(ii) an appointment made under; a law of the State (other than the office of head of a Department of State for the State (however described)); or

(f) a person holding or performing the duties of an appointment that is made by:

(i) a Governor of the State; or

(ii) a Minister of the Crown for the State; or

(iii) if the State is the Australian Capital Territory—the Australian Capital Territory Executive; (otherwise than under a law of the State); or

(g) a company in which the State, or a body corporate referred to in paragraph (c) or (d), has a controlling interest.

“Irrigation infrastructure operator” has the meaning given by subsection 7(4) of the Water Act. It applies to a subset of infrastructure operators. That is, it applies if a person owns or operates infrastructure for the storage of water; the delivery of water; and/or the drainage of water; for the purpose of providing a service to someone who does not own or operate the infrastructure and where the water service infrastructure is operated for the purposes of delivering water for the primary purpose of being used for irrigation.

Under these definitions, a person who makes a water markets decision includes the following:

Commonwealth or State Ministers – a Minister of the Crown for the Commonwealth or for a Basin State;
Government departments – any department or agency of the Commonwealth or a Basin State;
Public bodies established by law – any organisation (incorporated or not) created for a public purpose under legislation, or by a Governor or Minister;
Statutory Office Holders – individuals holding or carrying out duties of an office established by law or appointed under law;
Government-controlled companies – companies in which a government, or a government-created corporate body, holds a controlling interest;
IIOs; and
Government environmental water holders.

Where a person who makes a water markets decision is both an agency and an IIO, the obligations under Part 5A apply to that person where a relevant water markets decision is made. For example, a public IIO may be a Government-controlled company.

Ministers within Ministerial Councils would be captured within the definition of ‘agency of the Commonwealth’ or ‘agency of a state’. Therefore, the obligations under Part 5A would apply to each of those Ministers, within a Ministerial Council, where a relevant water markets decision is made. These obligations would only be triggered in rare circumstances, for example, where a Ministerial Council has made a decision in relation to trading rules that could have a material effect on the water market.

Consistent with subsection 101B(1) of the Water Act, which states that a person who makes a water markets decision must ensure that the decision is provided to the Bureau or announced in a manner prescribed by the regulations (and reported), in this circumstance the relevant decision is not required to be provided to the Bureau or first announced multiple times. There is no obligation as to which Minister provides or announces the decision, so long as the decision is appropriately provided or announced (and reported).

Persons who are not agencies of the Commonwealth or of a Basin State or IIOs cannot make water markets decisions and as such, do not have obligations under these regulations. For example, people who hold eligible tradeable water rights in their personal capacity (ie individual eligible tradeable water rights holders), water markets intermediaries and brokers, irrigators, agricultural businesses, or investment firms are not imposed obligations by these Amending Regulations.

To be a water markets decision, subsection 4(1) of the Water Act also provides that the decision must be prescribed by the regulations or is included in a class prescribed by the regulations.

All classes of decision are limited to decisions relating to eligible tradeable water rights and therefore to water markets decisions within the Murray-Darling Basin. A single water markets decision may cover multiple eligible tradeable water rights. For example, a legislation decision may cover all eligible tradeable water rights within that jurisdiction. All references to an eligible tradeable water right should be read as also referring to more than one eligible tradeable water right. This is consistent with the rules as to number under paragraph 23(b) of the Acts Interpretation Act 1901 (Cth).

Trade decisions

Paragraph 5A.02(1)(a) provides that a trade decision is a decision to do any of the following:

Offer to sell an eligible tradeable water right;
Invite an offer to sell an eligible tradeable water right; or
Purchase an eligible tradeable water right where offers for sale have not been invited.

A trade decision is also limited to the circumstances where a trade could reasonably be expected to have a material effect on the price or value of that eligible tradeable water right or another eligible tradeable water right. This requirement utilises the definition of ‘material effect’ in subsection 4(1) of the Water Act. A decision, or information, is taken to have a material effect on the price or value of an eligible tradeable water right if the decision or information is reasonably likely to influence persons who commonly acquire eligible tradeable water rights in deciding whether or not to acquire or dispose of such rights. For example, a decision to offer a large volume of water allocations for sale could reasonably be expected to have a material effect on the price or value of an eligible tradeable water right.

Examples of a decision to offer an eligible tradeable water right for sale include:

Where an agency or operator decides to sell a water allocation through an intermediary, broker, exchange or other method;
Where an agency or operator offers an eligible tradeable water right for sale or lease through an approach to market, auction or competitive tender; and
Where an IIO offers eligible members or customers the opportunity to purchase excess allocation as a result of efficiency gains or similar within a network, this would be regarded as offering eligible tradeable water rights for sale.

Examples of a decision to invite offers to sell an eligible tradeable water right include:

Where an agency or operator decides to invite expressions of interest or submissions from market participants to sell eligible tradeable water rights that they own.
Where an agency or operator decides to make a request for tenders, including through an open or limited tender process.

Examples of a decision to purchase an eligible tradeable water right where a person has not previously invited an offer to sell that right include:

Where an agency or operator decides to purchase a water allocation that has been listed for sale on an exchange.
Where an agency or operators decides to purchase an eligible tradeable water right through an intermediary, broker, or other method.

However, actions subsequent to an offer, invitation, or purchase, such as entering into a contract or agreement of sale to purchase or sell an eligible tradeable water right, or applying to a water market authority in relation to the purchase or sale of an eligible tradeable water right, would not be trading decisions. They are simply actions subsequent to the trading decision that is announced.

Similarly, where an entity has announced that it is offering eligible tradeable water rights for sale as a water markets decision, that entity does not need to later announce (and report) subsequent decisions to accept offers/bids to purchase the offered eligible tradeable water rights, nor decisions to apply to a water market authority in relation to a subsequent purchase of the eligible tradeable water rights.

The inclusion of this type of decision as a water markets decision is consistent with the existing obligations under the Basin Plan (which are to be repealed), which includes public announcements by an agency of the Commonwealth or of a Basin State that relate to a trading strategy or trade decision.

For the avoidance of doubt, the timing of when a water markets decision is first announced is a matter for the decision-maker. In relation to this subregulation, a trade decision may be first announced at the time that the action is being taken, or shortly in advance of the action being taken. For example, an agency or operator may announce a trade decision to offer eligible tradeable water rights for sale at the time that the offer is made available. Alternatively, an agency or operator may announce a trade decision that it will offer eligible tradeable water rights for sale shortly ahead of the offer becoming available to the market.

Distinct from trading strategy decisions, trade decisions should be understood as decisions that relate to actions that are either completed or that will be shortly completed. For example, where a decision to purchase an eligible tradeable water right without previously inviting offers is announced, this purchase would be taken to be completed. However, the announcement of decisions to offer eligible tradeable water rights for sale, or to invite offers of eligible tradeable water rights for sale, could occur either at the time that the action to offer or invite offers is taken or shortly before this action occurs. Where a decision is announced in relation to an action to be shortly fulfilled, the decision maker should be conscious of fulfilling the action as announced so as to not inadvertently breach the market manipulation provisions.

Exceptions relevant to trade decisions are set out in subregulation 5A.02(2).

Paragraph 5A.02(2)(a) provides that, for the purposes of paragraph 5A.02(1)(a) (a trade decision), a decision is not a water markets decision, if the relevant trade or proposed trade referred to in subparagraphs 5A.02(1)(a)(i), (ii) or (iii) is or will be consistent with, and conducted pursuant to, a trading strategy that is the subject of a trading strategy decision and that is generally available. This would be a trading strategy decision under paragraph 5A.02(1)(b), which is explained further below.

In this context, ‘trade’ should be understood to refer to purchases as described in subparagraph 5A.02(1)(a)(iii), while ‘proposed trade’ should be understood to cover offers and invitations to offer under subparagraph 5A.02(1)(a)(i)-(ii).

The note to paragraph 5A.02(2)(a) provides that the definition of generally available is in subsection 4(1) of the Water Act. As defined in subsection 4(1), information is generally available if it has been published in a manner that will, or will be likely to, bring it to the attention of interested members of the public.

The inclusion of this exception aligns with the existing provisions under the Basin Plan (which are to be repealed), which similarly provided that an announcement about a decision relating to a particular trade was not a water announcement where:

The trade is or will be consistent with, and conducted pursuant to, a trading strategy; and
That trading strategy has already been the subject of a water announcement that has become generally available.

The purpose of this exception is to ensure that where an agency or operator has already publicly indicated, through a trading strategy, the scope or nature of its prospective trading activities, subsequent day-to-day trade decisions made in accordance with that strategy do not trigger water markets reporting requirements. This reduces unnecessary reporting burden while maintaining transparency for market participants about significant decisions that may impact the market.

For example, if an agency releases a trading strategy stating that it may sell water allocations under specified circumstances and later makes a decision to offer multiple water allocations for sale in those circumstances, consistent with the strategy, that offer is not a water markets decision.

Under paragraph 5A.02(2)(a), a particular trade action would be “consistent with” a trading strategy where the strategy contains enough information to reasonably indicate that the trade action would or could occur under the circumstances. A strategy should give a reasonable indication of the scope, intent, or characteristics of the activities it covers. Elements that may assist in establishing such consistency include the period of operation of the strategy, guidance on how and why trade activities may occur, the relevant eligible tradeable water right types or volumes, the geographic areas or trading zones that would or may be involved, and the conditions that would or may trigger purchases or sales.

For example, an operator may publish a trading strategy indicating it may purchase water allocation in its water resource area during a dry period if necessary to meet conveyance water needs in its network. A subsequent decision to purchase a relevant volume of water allocation in a dry period for this purpose would therefore be consistent with this strategy and covered by the exception.

An agency or operator may decide to release a trading strategy in order to provide greater transparency to the market, or to provide appropriate coverage to reduce reporting burden associated with upcoming planned trade decisions or actions. An agency or operator may also decide to not release a trading strategy. In this situation the agency or operator would be able to assess trade actions on a case-by-case basis as to whether or not the action meets the criteria of a trade decision and therefore must be appropriately announced and reported.

Paragraph 5A.02(2)(b) provides, for the purposes of paragraph 5A.02(1)(a) (a trade decision), that a decision is not a water markets decision, if the trade or proposed trade referred to in subparagraph 5A.02(1)(a)(i), (ii) or (iii) is or will be both for no price or value, and within the same valley or trading zone.

The purpose of this exception is to clarify that ‘administrative’ trade actions that meet both of these criteria are not trade decisions for the purposes of paragraph 5A.02(1)(a). Examples of circumstances where this may occur include where:

An agency or operator is moving water allocation between different water accounts they hold to facilitate watering actions or optimise carryover; or
Trades between environmental water holders to facilitate delivery actions and/or return unused water at the end of a season.

Trading strategy decisions

Paragraph 5A.02(1)(b) provides that a trading strategy decision is a decision to do either of the following:

Publish a trading strategy with respect to the trade of eligible tradeable water rights; or
Amend a published trading strategy with respect to the trade of eligible tradeable water rights, if the amendment affects the scope or intent of the trading activities set out in the strategy.

For the purposes of this regulation, a trading strategy can generally be understood to mean a statement or document that indicates trade activities that are intended to be undertaken in the future, or that may be undertaken in the future depending on the certain circumstances.

The substance and format of a trading strategy may differ according to the nature, scale, and operational context of the entity concerned. Entities retain discretion over the manner in which a trading strategy is developed, if it is developed or released, and how it articulates or indicates the scope of activities they may or will be undertaking.

For example, a trading strategy decision could be a decision to release a short statement about a water purchasing program. Or it could be a decision to release a detailed strategic document that indicates how and potentially when excess water allocation may be made available to the market for purchase.

While the communication and framing of activities indicated in a trading strategy rests with the associated decision maker for the strategy, the decision maker should be conscious to provide a reasonable indication of the scope, intent or characteristics of the trade activities in the strategy in order to provide suitable coverage under the trading strategy exception set out in paragraph 5A.02(2)(a).

A trading strategy may include features such as the period over which the strategy will operate, guidance as to how trade activities may be undertaken and for what purpose, an indication of the eligible tradeable water right types or volumes that may be involved, and the geographical area or areas that trades may relate to. For example, an operator may release a trading strategy that indicates it may purchase additional water allocation in its geographic area if additional water is needed for conveyance purposes in a dry season.

Trading strategies should reflect an appropriate level of commitment to any indicated future activities so as to not inadvertently breach the market manipulation provisions.

For the avoidance of doubt, a trading strategy decision is specific to the publication or release of a trading strategy. There is no obligation or requirement imposed that agencies or operators must release or publish sensitive information about their internal trading plans, intentions or strategy publicly. Further to this, agencies and operators would maintain their ability to share this sensitive information with professional advisers that may be external to the agency or operator (for example, lawyers, financial advisers, or brokers), so long as any person aware of this information acts in a manner that is consistent with the insider trading obligations in the Water Act.

A decision to publish a trading strategy or amend a published trading strategy if the amendment affects the scope or intent of the trading activities set out in the trading strategy (as set out in subparagraphs (i) and (ii)) captures the circumstances when an agency or operator amends a published trading strategy are captured. This ensures the agency or operator are not able to circumvent obligations by altering a published document rather than re-releasing or replacing that document.

Legislation decisions

Paragraph 5A.02(1)(c) provides that a legislation decision is a decision to make or vary, or propose the making or varying of, Commonwealth water legislation or State water management law where the decision could reasonably be expected to have a material effect on the price or value of an eligible tradeable water right.

This provision utilises the definition of ‘material effect’ in subsection 4(1) of the Water Act. A decision, or information, is taken to have a material effect on the price or value of an eligible tradeable water right if the decision or information is reasonably likely to influence persons who commonly acquire eligible tradeable water rights in deciding whether or not to acquire or dispose of such rights. For example, amendments that change certain characteristics or rules that apply to eligible tradeable water rights could reasonably be expected to have a material effect on the price or value of an eligible tradeable water right.

The term “Commonwealth water legislation” is defined in section 250A of the Water Act as meaning the Water Act, the regulations or any other instrument made under the Water Act. The definition of “State water management law” in subsection 4(1) of the Water Act lists relevant water laws in each of the Basin State jurisdictions and includes regulations and other instruments made under those laws. As such, this type of decision includes decisions that relate to subordinate instruments such as regulations and rules.

There is no intention for this type of decision to capture enforcement and compliance notices, as these do not set out the law, but rather apply the law in a particular instance.

Subparagraph 5A.02(1)(c)(i) refers to both a decision to make or vary legislation, and to a decision to propose the making or varying of legislation. A decision to propose the making or varying of legislation has been separately identified for circumstances where an agency is not able to be the decision-maker because the decision relates to primary legislation and, as such, the making or varying of that legislation rests with Parliament.

Subparagraph 5A.02(1)(c)(iii) provides that a decision is only a legislation decision if it is not covered by another paragraph of this subregulation. A decision that is covered by another type of decision in paragraphs (a), (b), (d), (e), (f), (g) or (h) is not a legislation decision. For example, there may be some circumstances where an allocation decision under paragraph 5A.02(1)(e) may also meet the definition of a legislation decision as it is made via a subordinate legislative instrument under State water management law. Where this occurs, subparagraph 5A.02(1)(c)(iii) provides that such a decision is an allocation decision and not a legislation decision, despite the decision involving legislation.

However, subparagraph 5A.02(1)(c)(iii) only applies where a decision could be a legislation decision and is also covered by another paragraph of this subregulation, such as the decision being an allocation decision. For example, where an agency makes a decision to amend legislation that sets rules for how allocation decisions are made, then this amendment is not itself an allocation decision. As a result, the decision would be a legislation decision, as long as the decision is also reasonably likely to have a material effect.

An exception is set out in subregulation 5A.02(3) which provides that, for the purposes of paragraphs 5A.02(1)(c) and (d), a decision is not a water markets decision to the extent that:

The decision (the later decision) gives effect to or implements an earlier legislation decision or an earlier trading rules decision (the original decision); and
The later decision does not alter the effect of the original decision.

The purpose of this exception is to ensure that water markets decisions obligations are appropriately limited to the first announcement of material decisions. Without such an exception, there could be an unnecessary burden placed upon agencies or operators who make such decisions that are communicating early or frequently in the process.

For example, an agency could announce that it will be amending its trade rules under its legislation. This announcement would be a water markets decision. The agency subsequently introduces or registers subordinate legislation to enable these amendments. This subsequent decision, so long as it is consistent with the explanation provided in the announced water markets decision, is not a new water markets decision.

Trading rules decisions

Paragraph 5A.02(1)(d) provides that a trading rules decision is a decision by an irrigation infrastructure operator to make or vary trading rules (of the kind covered by section 12.47 of the Basin Plan) that govern the trade or transfer of an eligible tradeable water right; and that could reasonably be expected to have a material effect on the price or value of that right or another eligible tradeable water right.

Trading rules of the kind covered by section 12.47 of the Basin Plan refers to rules of IIOs that govern the trade of tradeable water rights within, into, or out of, the IIO’s irrigation network. It does not include rules that relate to administrative procedures, for example, the payment of fees, the completion of forms, or information that must be supplied by a person applying for a trade.

Paragraph 5A.02(1)(d) identifies that a trading rules decision is a decision by an IIO to provide greater clarity about how this provision should be interpreted. Trading rules of the kind covered by section 12.47 of the Basin Plan are only those that are made by IIOs. Trading rules, that are not of the kind covered by section 12.47 of the Basin Plan, are established under State water management law. The making and varying of trading rules under State water management law would be legislation decisions, subject to such a decision also meeting the criteria of being reasonably likely to have a material effect.

This provision, paragraph 5A.02(1)(d), utilises the definition of ‘material effect’ in subsection 4(1) of the Water Act. A decision, or information, is taken to have a material effect on the price or value of an eligible tradeable water right if the decision or information is reasonably likely to influence persons who commonly acquire eligible tradeable water rights in deciding whether or not to acquire or dispose of such rights. For example, an operator may make a trading rules decision to alter or impose new conditions or restrictions on the permitted methods of trade that can occur in the operator’s irrigation network such as the availability of leasing arrangements.

An exception is set out in subregulation 5A.02(3) which provides that, for the purposes of paragraphs 5A.02(1)(c) and (d), a decision is not a water markets decision to the extent that:

The decision (the later decision) relates to a matter covered by an earlier legislation decision or trading rules decision (the original decision); and
The later decision does not alter the effect of the original decision.

For example, an operator could announce that it will be amending its trading rules in a way that is reasonably likely to have a material effect. This announcement would be a water markets decision. The operator subsequently amends and publishes its trading rules on its website consistent with the indicated amendment. This subsequent decision, so long as it is consistent with the explanation provided in the announced water markets decision, is not a new water markets decision.

Allocation decisions

Paragraph 5A.02(1)(e) provides that an allocation decision is a decision under a State water management law to increase, decrease or maintain the volume of water allocated to an eligible tradeable water right.

For example, this includes allocation decisions to:

Increase the volume of water allocated to an eligible tradeable water right would include water allocation statements, seasonal determinations, projected allocation announcements, and allocation updates that increase the volume of water allocated.
Decrease the volume of water allocated to an eligible tradeable water right would include spill determinations, and account spills.
Maintain the volume of water allocated to an eligible tradeable water right would include allocation updates or determinations that do not increase the volume of water allocated, and low risk of spill declarations.

This category is consistent with the existing obligations under the Basin Plan (which are to be repealed) that included ‘allocation announcements’ as water announcements. Allocation announcement is defined in section 1.07 of the Basin Plan to mean an announcement specifying the volume of water allocated to water access entitlements. A note to the definition provided that an announcement could increase, decrease or leave unchanged the quantity of water allocated.

In prescribing allocation decisions as a type of water markets decision, it has been limited to the circumstances where the decision is made under a State water management law. This has been specified to ensure that this type of decision only captures the intended announcements that commonly impact the market. The effect of this is to exclude circumstances where an operator passes on or communicates the effect of an announced allocation decision to its customers. For example, an agency of a Basin State may make an allocation decision that results in an increase in allocated volume to a bulk water entitlement held by an operator. That operator then passes on the same increase to its irrigation right holders within its network. In this circumstance, the action undertaken by the operator to reflect the allocation decision is not a further water markets decision.

Consistent with the established Basin Plan water announcement provisions, this category includes decisions to “maintain” the volume of water allocated to eligible tradeable water rights such as allocation determinations that announce no change to allocations. This is a common type of decision made and communicated by agencies during dry periods which remain relevant and influential to market participants and their decisions about buying or selling water.

Allocation decisions are often made separately for each catchment or geographical area. However, depending on the circumstance, an agency may make an allocation decision that pertains to more than one geographic area. For example, where an agency makes an opening allocation decision at the beginning of the water year which covers multiple or all geographical areas within that jurisdiction. In this circumstance, where an allocation decision relates to more than one geographic area, it is still considered a single allocation decision.

However, in a circumstance where an agency makes several separate allocation decisions at one time then each of the allocation decisions made would be water markets decisions. For example, where an agency makes a decision to increase allocations in a particular geographic area via the making of a water allocation statement, and a second decision to increase or maintain allocations in a different geographic area via the making of a second water allocation statement.

An exception is set out in subregulation 5A.02(4), which provides that, for the purposes of paragraph (1)(e) (an allocation decision), a decision is not a water markets decision to the extent that the decision implements, without alteration, an allocation prescribed by or under State water management law.

The purpose of this exception is to exclude automatic allocation processes where there is an established water management practice under State water management law about the volume of water that will be allocated to eligible tradeable water rights in a particular geographic area. For example, where an agency has established under State water management law that 100% allocation is to be allocated annually in a particular unregulated surface water catchment, unless specific circumstances apply. In this example, where the agency implements this allocation without change then subregulation 5A.02(4) provides that this is not a water markets decision.

This exception is limited to circumstances where a decision solely implements such an allocation. Where a decision contains multiple components, including implementing an allocation prescribed in law without change, it is still a water markets decision where the other components meet the criteria of an allocation decision. For example, where an agency makes an allocation decision that pertains to multiple geographic areas and in relation to one or more (but not all) areas the decision implements an allocation prescribed in law without change, then this exception would not apply and the decision is an allocation decision.

As noted above under legislation decision, there may be some circumstances where an allocation decision may also meet the definition of a legislation decision as it is made via a subordinate legislative instrument under State water management law. Where this occurs, subparagraph 5A.02(1)(c)(iii) provides that such a decision is an allocation decision and not a legislation decision.

Carryover decisions

Paragraph 5A.02 (1)(f) provides that a carryover decision is a decision that either:

A carryover arrangement (within the meaning of the Basin Plan) is available in relation to a type of eligible tradeable water right in a particular geographic area and the volume of water that is covered by that arrangement; or
Such a carryover arrangement is not available in relation to a type of eligible tradeable water right in a particular geographic area.

A carryover arrangement is defined in section 1.07 of the Basin Plan to mean an arrangement which allows a water access right holder to retain water allocations not taken in a water accounting period for possible take in the next water accounting period.

The inclusion of this type of decision as a water markets decision is consistent with the existing obligations under the Basin Plan (which are to be repealed), which include carryover announcements as water announcements.

Where a carryover arrangement is established to always be available as part of ongoing water management practices, then actions relating to the implementation or management of retained allocations are not carryover decisions for the purposes of Part 5A.

Inter-valley trade opportunity decision

Paragraph 5A.02(1)(g) provides that an inter-valley trade opportunity decision is a decision, in relation to the trade of an eligible tradeable water right from one valley to another valley, that is about any of the following:

The opening of an inter-valley trade opportunity and the opening balance or available capacity of that trade opportunity;
The opening balance or available capacity of an inter-valley trade opportunity, except in the circumstance covered by subparagraph (i);
The closing of an inter-valley trade opportunity, except in the circumstance that the closure is the result of the available capacity of that trade opportunity being exhausted.

Subparagraph (ii) has been included to capture circumstances where an announcement is made about the opening balance or available capacity for an inter-valley trade opportunity where the opening has already been scheduled or is well-established. For example, some inter-valley trade opportunities are scheduled to open on 1 July each year. In these circumstances, an inter-valley trade opportunity decision is made only in relation to the opening balance or available capacity for the inter-valley trade opportunity.

Distribution decisions

Paragraph 5A.02(1)(h) provides that a distribution decision is a decision by an irrigation infrastructure operator to distribute water savings of an eligible tradeable water right, which are the result of reducing transmission losses, evaporation or system inefficiencies, to a member or customer of the operator, other than by selling or offering to sell that water.

In a circumstance where an operator was to distribute water to a member or customer by selling or offering to sell that water, this may be a trade decision under paragraph 5A.02(1)(a), subject to whether it meets the other necessary criteria.

The inclusion of distribution decisions as water markets decisions is consistent with the decision to not require these distributions to be reported as trades or transfers of eligible tradeable water rights under Part 7A.

The note to Regulation 5A.02 provides that the definition of material effect is in subsection 4(1) of the Water Act.

5A.03 First announcement of water markets decision

This regulation prescribes, for the purposes of paragraph 101B(1)(b) of the Act, the manner by which the water markets decision must be first announced by publishing the decision. These requirements only apply if the water markets decision is not provided to the Bureau under paragraph 101B(1)(a) for the purposes of publication on the Bureau’s website.

Subregulation 5A.03(1) provides requirements for how a decision must be published, including where, based on the circumstance of the decision. Subregulation 5A.03(1) provides that the publication of the water markets decision must be generally available and in a form that is readily accessible to interested members of the public. This ensures, for example, that the water markets decision cannot be announced on a website that has a paywall or where access is limited to a particular cohort.

Paragraph 5A.03(1)(a) where the decision-maker is an agency of the Commonwealth or of a Basin State and has a website, then the decision must be published on the agency’s website. Subsection 4(1) of the Water Act provides definitions for both agency of the Commonwealth and agency of a Basin State.

However, there are some agencies of the Commonwealth or of a Basin State which do not have their own websites. For example, a Commonwealth Minister may not have their own website as any Minister’s website will be hosted by either the department or Australian Parliament House, or both.

For the Commonwealth, the term “Department” is intended to be the Department of State for the Commonwealth that is administered by the Minister or Ministers administering that provision in relation to the relevant matter, and that deals with that matter. This applies the rule in Item 1 of the table in subsection 19A(1) of the Acts Interpretation Act 1901 (Cth).

For Basin States, the term “Department” is intended to be read in the context of that Basin State’s arrangements. Not all Basin States have similar approaches to the Commonwealth in identifying the appropriate Department through interpretation legislation. For example, in NSW, the Interpretation Act 1987 (NSW) does not address what is meant where the term Department is used without identifying a particular department. In these instances, the relevant Department should be identified using the standard approach for that Basin State.

In the circumstances where the decision-maker is an agency of the Commonwealth or of a Basin State and the agency does not have a website, paragraph 5A.03(1)(b) makes specific provision depending on whether it is a single agency or multiple agencies who will be taking action on the decision.

Subparagraph 5A.03(1)(b)(i) provides that if the decision relates to an action that is, may or will be, undertaken by one agency of the Commonwealth or of a Basin State, then the decision must be first announced by publishing the decision on the website of the agency, or the website of the relevant Department of State for the Commonwealth or for the State. This will allow, for example, a decision relating to actions to be taken solely by the Murray-Darling Basin Authority to be published on the Murray-Darling Basin Authority’s website.

Subparagraph 5A.03(1)(b)(ii) provides that if the decision relates to an action that is, may or will be, undertaken by more than one agency of the of the Commonwealth or of a Basin State, then the decision must be first announced by publishing the decision on the website of a relevant Department of State for the Commonwealth or for the State. This will allow, for example, a major budget decision relating to eligible tradeable water rights that will be implemented by multiple departments and agencies, to be published on that jurisdiction’s Department of Finance’s website.

The note to subregulation 5A.03(1) provides that the definition of generally available is in subsection 4(1) of the Water Act.

Paragraph 5A.03(1)(c) provides that if the decision-maker is an irrigation operator (IIO), then the water markets decision must be announced by publication on that operator’s website. If the IIO does not have a website, the decision-maker must provide the water markets decision to the Bureau for the purposes of publication of the decision as the means by which the person first announces the decision, consistent with paragraph 101B(1)(a) of the Water Act.

Subregulation 5A.03(2) provides for those circumstances where the decision-maker is already required under Commonwealth water legislation or State water management law to first give notice of the decision in a particular manner. In these circumstances, the publication of the decision in accordance with the Commonwealth water legislation or State water management law will meet the requirements for the first announcement of the water markets decision.

Commonwealth water legislation is defined in section 250A of the Water Act as meaning the Water Act, the regulations or any other instrument made under the Water Act. The definition of State water management law in subsection 4(1) of the Water Act lists relevant water laws in each of the Basin State jurisdictions and includes regulations and other instruments made under those laws. As these laws are likely to cover many of the water markets decisions announced under Part 5 of the Water Act, subregulation 5A.03(2) ensures that these water markets decisions are announced in line with their current requirements and minimises duplication and potential confusion for decision-makers who have existing statutory obligations and for participants in the water markets.

The Note to Subregulation 5A.03(2) provides an example of where the State water management law requires a person to first give notice of the decision in the Gazette. In these circumstances, the notice of the decision in the Gazette will be the manner that the water markets decision must be first announced for the purposes of subregulation 5A.03(2).

Subsection 101B(4) of the Water Act provides that a person is liable to a civil penalty of up to 120 penalty units (currently $39,600) for contravening the requirements of subsection 101B(1) of the Act.

5A.04 Reports about water markets decisions

Regulation 5A.04 prescribes, for the purposes of subsection 101B(2) and (3)(b) of the Water Act, the details about the water markets decision that must be provided to the Bureau.

Details for where a decision is provided to the Bureau under paragraph 101B(1)(a) of the Act

Subregulation 5A.04(1), for the purposes of subsection 101B(2) of the Act, prescribes these details about the decision that must be reported where a water markets decision is provided to the Bureau under paragraph 101B(1)(a) of the Water Act. That is, it applies where a water markets decision is being provided to the Bureau for the purposes of publication as the means by which it is first announced.

Paragraph 5A.04(1)(a) provides that the person giving the decision must indicate that the decision will be first announced in accordance with paragraph 101B(1)(a) of the Act. In other words, that it is being provided to the Bureau for the purposes of publication on the Bureau’s website as the means by which it is first announced.

Paragraph 5A.04(1)(b) provides that the person giving the decision must provide the following information:

The agency of the Commonwealth or of a Basin State, or IIO that made the decision; and
An email address of a person, or of an area, within the agency or operator, that may be contacted for information about the decision.

Paragraph 5A.04(1)(c) provides that the person giving the decision must provide the following information about the decision:

The type of decision. This must be the type of decision listed in subregulation 5A.02(1) – namely whether it is a trade decision, trading strategy decision, legislation decision, trading rules decision, allocation decision, carryover decision, inter-valley trade opportunity decision, or a distribution decision;
The title of the decision;
The date and time the decision was made; and
To facilitate and simplify reporting by decision-makers, subparagraph 5A.04(1)(c)(iv) provides that the decision-maker may provide a link to any additional documents and information relevant to the decision.

It is intended that the date and time the decision was made will not be made publicly available by the Bureau. This is information that will be provided to the ACCC, as the regulator, rather than being made publicly available.

Paragraph 5A.04(1)(d) provides that, subject to subregulation 5A.04(2), the person giving the decision must indicate the geographic area or areas to which the decision relates.

Subregulation 5A.04(2) provides that, for the purposes of paragraph (1)(d), if the Director of Meteorology has issued the Water Markets Data Standards under subsection 135J(1) of the Act, setting out a list of geographic areas, the geographic area or areas must be selected from that list, as in force from time to time. If there is no list, or there are no Water Markets Data Standards at the time of the report, then requirement to report the geographic area should be read on its ordinary meaning.

Paragraph 5A.04(1)(e) provides that the person giving the decision must indicate the type or types of water resources to which the decision relates. That is, whether the decision relates to regulated surface water, unregulated surface water, groundwater, or a combination of these types. Surface water and ground water are defined in subsection 4(1) of the Water Act.

Paragraph 5A.04(1)(f) provides that, if a decision is an allocation decision, a carryover decision or an inter-valley trade opportunity decision, the person giving the decision must provide information about a calculation or methodology that is relevant to the decision being reported. This may be provided as either a description or by way of a link to relevant information that has already been published.

The purpose of paragraph 5A.04(1)(f) is to support market confidence and access to information about how allocation, carryover and inter-valley trade opportunity decisions are made by requiring decision-makers to provide information relevant to underpinning calculations or methodologies (including by linking to published material). For example, a Basin State may provide a link to information about how water allocation decisions are made within that jurisdiction – that is, information about the methodology used by the decision-maker that is relevant to the decision.

Paragraph 5A.04(1)(g) provides that the person giving the decision must provide the following information:

Subject to subregulation 5A.04(3), the type or types of eligible tradeable water rights to which the decision relates; and
If the decision-maker considers it relevant to do so – additional information or context about the type or types of eligible tradeable water rights to which the decision relates.

Subregulation 5A.04(3) provides that, for the purposes of subparagraph (1)(g)(i), if the Director of Meteorology has issued the Water Markets Data Standards under subsection 135J(1) of the Act, setting out a list of the types of eligible tradeable water rights, the type or types of eligible tradeable water rights must be selected from that list, as in force from time to time. If there is no list, or there are no Water Markets Data Standards at the time of the report, then requirement to report the type or types of eligible tradeable water right should be read on its ordinary meaning.

The purpose of subparagraph 5A.04(1)(g)(ii) is to enable decision-makers to provide supplementary information about how the decision relates to eligible tradeable water rights, including any relevant context not captured by a list of the types of eligible tradeable water rights. The inclusion of this detail was requested during consultation in recognition that certain context may not be immediately apparent to market participants where certain types of eligible tradeable water rights are placed into categories given the variation in State-based terminology.

The note to subregulation 5A.04(1) provides that paragraph 101B(1)(a) of the Act requires that the water markets decision is provided to the Bureau for the purposes of publication of the decision.

Details for where a decision is reported to the Bureau under paragraph 101B(3)(b) of the Act

Subsection 101B(3) of the Water Act provides that where a water markets decision is first announced in a manner prescribed by the regulations, and not provided to the Bureau under paragraph 101B(1)(a) of the Act, the person who made the decision must report the announcement of the decision to the Bureau and report the details (if any) in relation to the water markets decision or the announcement that are prescribed by the regulations.

Subregulation 5A.04(4), for the purposes of subsection 101B(3)(b) of the Water Act, prescribes these details about the water markets decision and its announcement that must be reported to the Bureau.

Paragraph 5A.04(4)(a) provides that the person reporting the decision must indicate that the decision was first announced in accordance with paragraph 101B(1)(b) of the Act. That is, that the decision was first announced in a manner prescribed by the regulations.

Paragraph 5A.04(4)(b) provides that the person reporting the decision must provide either:

The full text of the first announcement of the decision; or
If it is not reasonable to do so – a relevant extract of a document or record containing the full text of the first announcement of the decision.

Paragraph 5A.04(4)(c) provides that the person reporting the decision must provide a link to the first announcement of the decision.

Paragraph 5A.04(4)(d) provides that the person reporting the decision must provide the date and time that the decision was first announced in accordance with paragraph 101B(1)(b) of the Water Act.

It is intended that the date and time the decision was made will not be made publicly available by the Bureau. This is information that will be provided to the ACCC, as regulator, rather than being made publicly available.

Paragraph 5A.04(4)(e) provides that the person reporting the decision must provide the same information as required under paragraphs 5A.04(1)(b) to (g).

Sections 101Q and 135V are intended to avoid the duplication of information required to be given by persons to the Bureau and to assist industry in understanding what its obligations are. Nonetheless, it is likely these persons will use the same systems to collect and store information, regardless of whether it is for Part 5A, Part 7 or Part 7A. Utilising the same lists for information to be given to the Bureau relating to geographic areas and types of eligible tradeable water rights will avoid confusion and reduce regulatory burden for those providing that information. It will also ensure that these lists remain up to date and consistent with changes in state legislation.

In accordance with section 135D of the Water Act, the Director of Meteorology must not publish water markets information or information about water markets decisions if the Director believes it would not be in the public interest; or to the extent that the information identifies a particular individual by means of the individual’s name, address, customer number or account number or other identifier unless the information is already published or otherwise publicly available. This is expected to be relevant to the requirements prescribed in subparagraph 5A.04(1)(b)(ii) relating to the email address of a person, or area, that can be contacted for more information.

Section 135T of the Water Act provides that the Minister has the power to direct the Bureau with respect to the performance of its functions or the exercise of its powers. This power could be used to direct the Bureau not to publish sensitive information.

5A.05 Period for reporting information about water markets decisions

Regulation 5A.05 prescribes, for the purposes of subsection 101B(3) of the Water Act, the period for the person who made the water markets decision to report the announcement and details of that decision to the Bureau. These requirements only apply if the water markets decision is not provided to the Bureau under paragraph 101B(1)(a) for the purposes of publication on the Bureau’s website.

The prescribed period begins at the time the water markets decision is first announced. It ends at the close of business on the first business day after the day the water markets decision was first announced.

The prescribed period will be interpreted in accordance with Part 8 of the Acts Interpretation Act 1901. For example, if the announcement is made at 11am on a Friday, and the following Monday is a public holiday in the place in which the announcement is made, the decision-maker has until close of business on the following Tuesday to provide the information to the Bureau.

5A.06 Manner of providing reports

Regulation 5A.06 prescribes, for the purposes of subsection 101B(3A) of the Water Act, the manner in which the decisions, reports or details of water markets decisions that must be provided to the Bureau under paragraph 101B(1)(a) of the Water Act, or the announcement must be reported to the Bureau under paragraph 101B(1)(b) of the Water Act.

Regulation 5A.06 prescribes that the manner in which the decision, report or details (as the case requires) must be provided to the Bureau is by the use of secure file transfer protocol (SFTP); the use of an application programming interface (API); or being uploaded or entered onto the Bureau’s website. This is currently intended to be done by the use of a facility made available by the Bureau known as the Water Data Hub, but would also include any other service continuing in existence to upload or enter information onto the Bureau’s website.

To minimise regulatory burden for decision-makers, the manner of providing decisions to the Bureau is intended to mirror that for giving water markets information to the Bureau under Part 7A.

Regulation 5A.07 Records to be kept

Regulation 5A.07 prescribes, for the purposes of paragraph 101C(1)(d) of the Water Act, the records that must be kept about the water markets decision reported to the Bureau.

This information is in addition to the records that a person who makes a water markets decision must keep under paragraphs 101C(1)(a) to (c) of the Water Act.

Paragraph 5A.07(a) provides that, if a water markets decision was first announced in accordance with paragraph 101B(1)(a) of the Act, the person who made the decision must keep as a record, a copy of the decision, as made.

In addition, in these circumstances, the person must keep a record of the fact that the water markets decision was made and the date on which it was made (as required under paragraph 101C(1)(a) of the Water Act) and all the details provided, and the date and time on which the water markets decision was provided, to the Bureau (as required under paragraph 101C(1)(b) of the Water Act).

Paragraph 5A.07(b) provides that, otherwise, where a decision is not announced under paragraph 101B(1)(a) of the Act, then the records to be kept are a copy of the water markets decision, as made, the date and time the announcement of the decision was reported to the Bureau under paragraph 101B(3)(a) of the Water Act, the date and time the details in relation to the decision or the announcement were reported to the Bureau under paragraph 101B(3)(b) of the Act, and the details provided to the Bureau under paragraphs 5A.04(4)(c) and (e).

In addition, the person must keep records of the date, time, manner and content of the announcement of the water markets decision (as required under paragraph 101C(1)(c) of the Water Act).

Subsection 101C(2) of the Water Act provides that the records must be kept by the person for at least 5 years beginning on the date of the water markets decision. Subsection 101C(3) provides that a person is liable to a civil penalty of up to 120 penalty units (currently $39,600) for failing to keep these records.

Item 2 – Transitional provisions

Water Regulations 2008

Item 2 of Schedule 1 inserts Division 12.3 - Amendments made by the Water Amendments (Water Markets Decisions) Regulations 2026, into Part 12 of the Water Regulations. The Division contains regulations 12.03 and 12.04.

12.03 Definitions for this Division

This regulation provides that the term “ amending Regulations” that is used in this Division 12.2 means the Water Amendment (Water Markets Decisions) Regulations 2026.

12.04 Transitional provision in relation to water announcement

This regulation provides transitional arrangements for circumstances where a water announcement has been made generally available under Division 5 of Part 5 of Chapter 12 of the Basin Plan, prior to 1 July 2026.

Part 3 of Schedule 4 of the Water Amendment (Restoring Our Rivers) Act 2004 (items 5 to 8 inclusive) repeals the requirements in the Basin Plan relating to water announcements from 1 July 2026.

Regulation 12.08 provides that where a trade decision under paragraph 5A.02(1)(a) is made between 1 July 2026 and 30 September 2026 (inclusive), which is consistent with a water announcement that was made generally available under the requirements of the Basin Plan prior to 1 July 2026, then that trade decision is not treated as a water markets decision. That is, that trade decision does not have to be announced or re-announced under Part 5A of the Water Act.

ATTACHMENT B

Statement of Compatibility with Human Rights

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

Water Amendment (Water Markets Decisions) Regulations 2026

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

The purpose of Water Amendment (Water Markets Decisions) Regulations 2026 (Amendment Regulations) is to amend the Water Regulations 2008 by prescribing matters relating to mandatory water markets announcement obligations. These announcements ensure that

The purpose of the Amendment Regulations is to set out requirements for the purposes of sections 101B and 101C of the Water Act 2007 (Water Act). These requirements are:

the decisions that are water markets decisions;
the first announcement of water markets decisions;
reports relating to water markets decisions that must be provided to the Bureau;
the period for providing reports relating to water markets decisions;
the manner for providing reports relating to water markets decisions;
record‑keeping requirements relating to water markets decisions.

Human rights implications

The Amendment Regulations engage the right to privacy and reputation under Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

Right to privacy and reputation

Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home, or correspondence, as well as attacks on their honour or reputation. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. For an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR, and be reasonable in the circumstances. The UNHRC has interpreted the requirement of ‘reasonableness’ to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

The UNHRC has not defined ‘privacy’, but it is generally understood to comprise of a freedom from unwanted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The collection and sharing of information (public or otherwise) may be considered to engage and offend the right to privacy.

Personal information may be required to be collected, used or disclosed where a water markets decision maker is a natural person. For example, the new regulation 5A.04(1)(b) requires information about the decision maker to be included in reports to the Bureau of Meteorology (the Bureau) about water markets decisions made under subsection 101B(2) of the Water Act which are to be announced by the Bureau. The new regulation 5A.04(2)(b) also requires information about the decision maker to be included in reports about water markets decisions made under subsection 101B(3)(b) of the Water Act, where the decision maker has announced the decision.

This information includes the name and position title of the person or persons in the agency or operator who made the decision and the email address of a person (the decision maker or a contact person) or of an agency within the agency or operator that the ACCC may contact for information.

The name of the decision-maker may also be included in the decision published by the decision-maker under new subregulation 5A.03(1), where that name forms part of the decision.

Any personal information published by the decision-maker under new regulation 5A.03(1) or disclosed under new regulation 5A.04 will be subject to the privacy requirements of that jurisdiction. For Commonwealth decision-makers, the conditions set out in the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles contained in Schedule 1 of the Privacy Act will be govern the disclosure of that personal information.

For decision-makers in the Basin States, the relevant legislation below will apply:

the Privacy and Personal Information Protection Act 1998 (NSW);
the Privacy and Data Protection Act 2014 (Vic);
the Information Privacy Act 2014 (ACT);
the Information Privacy Act 2009 (Qld);
the Information Privacy Principles Instruction (SA).

Information or documents provided to the Bureau by water markets authorities as authorised by section 101B of the Water Act may contain personal information. The Privacy Act and the Australian Privacy Principles contained in Schedule 1 of the Privacy Act would apply to any personal information provided to the Bureau.

Further, paragraph 135D(2)(b) of the Water Act prohibits the Director of Meteorology from publishing information about water markets decisions to the extent that the information identifies a particular individual by means of the individual’s name, address, customer number or other identifier (including email address) unless the information is already published or is otherwise publicly available.

Information or documents disclosed by the Bureau under section 135P of the Water Act to the ACCC or which is compelled by the ACCC under section 101D of the Water Act may contain personal information. The Privacy Act 1988 (Privacy Act) and the Australian Privacy Principles contained in Schedule 1 of the Privacy Act would apply to any personal information collected by the ACCC.

In addition, information given under section 135P or obtained by the ACCC under section 101D of the Water Act falls within the definition of “protected information” under subsection 155AAA(21) of the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act) and is subject to the limitations on disclosure under that Act. Information obtained by the ACCC under Part XID of the Competition and Consumer Act which relates to Part 5A is also protected information and subject to the same limitations on disclosure.

Under section 101D of the Water Act, the ACCC can require a person who is required to keep records about water markets decisions. to give information or to provide documents about those records. The information or documents must be given to the ACCC within 21 days after the notice is received by the person. A person failing to comply with the notice may be liable to a civil penalty of 100 penalty units (currently $33,000) if the person fails to comply with the notice. A person providing false or misleading information in compliance or purported compliance with a notice given by the ACCC under section 101D is liable to a civil penalty of 120 penalty units (currently $39,600).

Accordingly, the Regulations are compatible with the right to privacy and reputation provided for by Article 17 of the ICCPR.

Conclusion

The Amendment Regulations are compatible with human rights because to the extent that they may limit human rights, those limitations are reasonable, necessary, and proportionate to the

legitimate goals of the Amendment Regulations.

Senator the Hon. Murray Watt

Minister for the Environment and Water

[1] https://www.dcceew.gov.au/sites/default/files/documents/water-market-reform-final-roadmap-report.pdf

Water Amendment (Water Markets Decisions) Regulations 2026

Administered by Department of Climate Change, Energy, the Environment and Water

Legislative Authority

Purpose

Background

Consultation

Incorporation by Reference

Privacy

Details/ Operation

Other

Part 1 – Main Amendments

Division 1 – Preliminary

5A.01 Purpose of this Division

Division 2 – Announcing and reporting water markets decisions

5A.02 Water markets decisions

Trade decisions

Trading strategy decisions

Legislation decisions

Trading rules decisions

Allocation decisions

Carryover decisions

Inter-valley trade opportunity decision

Distribution decisions

5A.04 Reports about water markets decisions

Details for where a decision is provided to the Bureau under paragraph 101B(1)(a) of the Act

Details for where a decision is reported to the Bureau under paragraph 101B(3)(b) of the Act

5A.05 Period for reporting information about water markets decisions

5A.06 Manner of providing reports

Regulation 5A.07 Records to be kept

12.03 Definitions for this Division

12.04 Transitional provision in relation to water announcement

Overview of the Legislative Instrument

Human rights implications

Interactions

Legislation content

Legislative Authority

Purpose

Background

Consultation

Incorporation by Reference

Privacy

Details/ Operation

Other

Part 1 – Main Amendments

Division 1 – Preliminary

5A.01 Purpose of this Division

Division 2 – Announcing and reporting water markets decisions

5A.02 Water markets decisions

Trade decisions

Trading strategy decisions

Legislation decisions

Trading rules decisions

Allocation decisions

Carryover decisions

Inter-valley trade opportunity decision

Distribution decisions

5A.04 Reports about water markets decisions

Details for where a decision is provided to the Bureau under paragraph 101B(1)(a) of the Act

Details for where a decision is reported to the Bureau under paragraph 101B(3)(b) of the Act

5A.05 Period for reporting information about water markets decisions

5A.06 Manner of providing reports

Regulation 5A.07 Records to be kept

12.03 Definitions for this Division

12.04 Transitional provision in relation to water announcement

Overview of the Legislative Instrument

Human rights implications

Interactions

Authorises

All Versions