Bills Digest no. 72 2009–10
Australian Capital Territory and Other Legislation Amendment (Water
Management) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Australian Capital Territory and
Other Legislation Amendment (Water Management) Bill 2009
Date introduced: 19 November 2009
House: House of Representatives
Portfolio: Climate Change and Water
Commencement: Various dates as set out in
the table in section 2 of the Bill.
Links:
The relevant
links to the Bill, Explanatory Memorandum and second reading speech
can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills
have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.
The primary purpose of the Bill is to amend the Australian
Capital Territory (Planning and Land Management) Act 1988 (the PALM
Act) so that water abstraction on National Land is managed by the Australian
Capital Territory (ACT) Government under the relevant territory legislation
rather than the Commonwealth.
The Bill also amends other Acts to improve governance of water within
the Murray-Darling Basin.
In 1901 a decision was made to develop a national capital. The move
was as a direct result of the federation of colonies in Australia. However,
it was not until 1908 that the location of the capital was decided. The
Seat of Government Acceptance Act 1909 (Seat of Government Acceptance
Act) provided a statutory underpinning to an agreement between the Commonwealth
and the State of New South Wales (NSW) that:
- NSW would surrender to the Commonwealth certain lands for the Territory
which would be the seat of government, and
- the right of NSW and its residents to the use and control of the waters
of the Queanbeyan and Molonglo Rivers and their tributaries to the east
of the Goulburn to Cooma Railway would be subject to, and secondary
to, the use and requirements of the Commonwealth which were declared
to be paramount.[1]
At present, the ACT water supply is sourced from the Bendora, Corin,
Cotter and Googong Dams. The Bendora, Corin and Cotter Dams are built
on the Cotter River and are located in the ACT.
The Googong Dam was constructed in the 1970s on Commonwealth land on
the Queanbeyan River which is located in NSW, although its water is reserved
for use in the ACT. The ownership of the land on which the Googong Dam
was built has been a source of debate since the ACT was granted self-government
in 1989. The Commonwealth indicated at about that time, that it intended
to retain ownership of the Googong Dam, stating:
The land in question obviously is owned by the Commonwealth,
just as is the land in the ACT. So for the reason that it has obligations
to New South Wales, it cannot abdicate its role in respect of the dam.
However, the amendments to the Dam Act itself place the effective control
and management of the area in the hands of the Australian Capital Territory
executive.[2]
However the ACT felt that the Commonwealth had agreed to hand the land
to the ACT but that the transfer was ‘ineffectually implemented by use
of the wrong instrument’.[3]
In January 2007, John Stanhope, ACT Chief Minister said:
The legal position is set out the ‘Summary of Legal
Responsibilities for Cross Border Water Supply between the ACT and NSW’
signed by the Commonwealth on 17 August 2006.
This Agreement, signed in August 2006 by the Minister
for Territories, demonstrates beyond doubt the Commonwealth, ACT and
NSW all had a clear and shared understanding that the land was to be
transferred to the ACT.[4]
The ACT Chief Minister’s understanding was based on the following passage:
The ownership of the Googong Dam Area is currently
in the process of transfer from the Commonwealth to the ACT Government
(ACTEW). This transfer will mean that Googong Dam Area, and neighbouring
Commonwealth freehold land will become freehold land owned by the ACT,
rather than a Commonwealth place within the meaning of the Commonwealth
Places (Application of Laws) Act 1970. The Googong Dam Act will
continue to govern the primary use of the Googong Dam Area waters, subject
to some consequential changes. [5]
Questions about ownership and control of the Googong Dam and associated
infrastructure continued. During the 2007 Federal election campaign,
the then Member for Eden-Monaro, Gary Nairn, said that under a Coalition
government Googong Dam would be given to the ACT on condition that Queanbeyan
is given a secure water allocation.[6]
Negotiations over the Googong Dam between the ACT and the Commonwealth
resumed after the 2007 election and agreement was reached, not for ownership,
but for a long term lease of the Googong Dam to the ACT from the Commonwealth.
On 4 September 2008, the ACT signed a 150 year lease which did not come
into effect until a formal agreement was signed between the Australian,
NSW and the ACT Governments to guarantee Queanbeyan water supply from
ACT sources including the Googong Dam.[7]
At that time it was stated that:
We also intentionally drafted the document to ensure
that, while the Commonwealth’s interests in the land are fully protected,
the ACT government will be able to acquit its responsibilities without
us constantly looking over its shoulder … what we aimed for was to allow
the ACT government to get on and manage the dam on our behalf as set
out in the Canberra Water Supply (Googong Dam) Act 1974.[8]
The amendments in this Bill require that the water resources of the Googong
Dam are included in the ACT water resource plan area identified in the
Basin Plan being developed for the Murray-Darling Basin rather than in
the water resource plan area for NSW and are consistent with the current
lease agreement.
Within the ACT, water is managed by both the National Capital Authority
(NCA) and the ACT Government.
The role of the NCA is supported by the PALM Act.[9] Section 6 of the PALM Act provides
that the NCA is to manage ‘National Land’.[10]
This is specific land, declared by the Minister to be land that is, or
is intended to be, used by or on behalf of the Commonwealth.[11] All other land within the ACT is regulated
by the ACT Government. Under the PALM Act the term ‘land’
includes water.[12]
The NCA manages the taking of water on National Land which includes Lake
Burley-Griffin. The amount of water managed is less than 1 Gigalitre
(GL) per annum compared to 45–65 GL per annum of water consumed by the
ACT and Queanbeyan which is managed by the ACT Government.[13]
The Australian National Botanic Gardens (the Botanic Gardens) is presently
using potable water[14] from the Canberra water supply which has increased in cost by
250 per cent over the past ten years.[15]
As a result the Botanic Gardens has had to implement water conservation
measures to allow the plant collection to go off this supply. Plant collections
are being reviewed and the Botanic Gardens is using improved irrigation
technologies, modifying landscaping to conserve water and reducing the
number of cultivated beds. However, water restrictions imposed during
the present drought has placed much of the collection under stress and
resulted in some loss of plant specimens, contraction of planted areas
and decline in some horticultural displays.
The NCA has been discussing with the Botanic Gardens about accessing
water from Lake Burley-Griffin so they no longer have to use potable water
to irrigate their plant collection.
The NCA was able to negotiate an increase in the amount of water available
for abstraction from Lake Burley-Griffin with the ACT Government in order
to grant a licence of 170 Megalitres (ML) per year to the Botanic Gardens.[16]
A temporary permit was granted by the NCA to the Botanic Gardens to extract
this amount of water until December 2009. The Botanic Gardens has applied
for another permit for one year enabling it to cover the period until
the present Bill is passed and commences. The water for the Botanic Gardens
will come from unused allocation under the cap of the ACT Government for
water from Lake Burley-Griffin since the NCA did not have any room under
its cap.
The new arrangement of transferring management of water on National Land
from the NCA to the ACT Government:
will permit the ACT and Commonwealth to share its
total cap, allowing the gardens to draw water from Lake Burley-Griffin,
which is currently under Commonwealth control, without any increase
in the overall water use within the catchment.[17]
Located in the south-east of Australia, the Murray-Darling Basin covers
over one million square kilometres, equivalent to 14 per cent of Australia’s
total area. The Murray-Darling Basin extends over three-quarters of NSW,
more than half of Victoria, significant portions of Queensland and South
Australia, and includes the whole of the ACT.[18]
Section 19 of the Water Act 2007 (the Water Act) requires that
there is a Basin Plan for the management of the Murray-Darling Basin water
resources. Essentially the Basin Plan is to provide for limits on the
quantity of water that may be taken from the Murray-Darling Basin water
resources as a whole, and from the water resources of each water resource
plan area.
The Basin Plan for the integrated and sustainable management of water
resources in the Murray-Darling Basin is planned to commence in 2011.[19] The mandatory content of the
Basin Plan is listed in the Water Act as including, though not limited
to:
- limits on the amount of water (both surface water and groundwater)
that can be taken from Basin water resources on a sustainable basis
- identification of risks to Basin water resources, such as climate
change, and strategies to manage those risks
- requirements that state water resource plans will need to comply
with if they are to be accredited under this Act
- an environmental watering plan to optimise environmental outcomes
for the Basin
- a water quality and salinity management plan
- rules about trading of water rights in relation to Basin water resources.[20]
Under the water-sharing arrangements, when existing Basin states’ ‘water
resource plans’ cease, new plans will be prepared by Basin states and
provided to the Commonwealth Minister for accreditation. Among the requirements
for inclusion in a ‘water resource plan’ are matters such as the long-term
annual diversion limit for the water resources of the water resource plan
area; the regulation of interception activities with a significant impact
on the water resources; planning for environmental flows; and water quality
and salinity objectives for the water resource plan area.[21]
The Bill has been considered by the Scrutiny of Bills Committee (the
Committee) which noted the retrospective effect of certain proposed provisions.
The Committee stated:
As a matter of practice, the Committee draws attention
to any bill that seeks to have retrospective impact and will comment
adversely where such a bill has a detrimental effect on people. Items
1 and 2 of Schedule 2 amend subsection 18B(9) of the Water Act 2007.
A note to item 2 explains that section 18B was inserted
by the WaterAmendment Act 2008 which commenced on 15 December
2008. This means that the relevant provisions in this bill will be taken
to have commenced immediately after the commencement of the amended
section 18B.
The Committee also notes that the explanatory memorandum
explains (at page 5) that the amendments in items 1 and 2 of Schedule
2 mirror equivalent provisions in relevant state laws which refer legislative
power to the Commonwealth to enact the referred provisions of the Water
Act.
In the circumstances, the Committee makes no further
comment on these provisions.[22]
According to the Explanatory Memorandum:
The cost associated with establishing entitlements
to water used by Commonwealth agencies or private entities on Commonwealth
land will be borne by the Commonwealth. The majority of on-going costs
will also be borne by the Commonwealth. Two private entities will bear
costs as a result of this Bill, with a total combined cost, at current
prices, of under $50,000 per annum.[23]
Schedule 1 amends the PALM Act. The purpose of these amendments is to
ensure that the abstraction of water on National Land is no longer managed
by the Australian Government. To achieve this:
- item 1 inserts the term ‘take’ into existing section 4 so
that it will have the same meaning in the PALM Act is as in section
11 of the Water Resources Act 2007 (ACT), that is:
-
for surface water—to withdraw, pump, extract or use surface
water; and to divert surface water for the purpose of using it; and
do anything else that results in a reduction of flow of surface water
in a waterway
-
for ground water—to allow ground water to flow or be pumped from a
bore.
- item 4 inserts proposed subsection 6(2) which specifically
excludes the management of the taking water on National Land from the
functions of the NCA
- item 5 inserts proposed paragraph 29(1)(c) which
gives responsibility for management of the taking of water on National
Land to the ACT Government, and
- item 6 inserts proposed paragraph 30(2)(a) so that liability
for the management of the taking of water on National Land is assigned
to the ACT Government.
Schedule 2 of the Bill amends the Water Act.
Existing section 18B of the Water Act sets out the meaning of the term
‘referring state’. The requirement for such term arises
because some of the Constitutional underpinning of the Water Act lies
in the referral of certain powers by the States to the Commonwealth under
section 51(xxxvii) of the Commonwealth of Australia Constitution Act.
Items 1–3 have the effect that where the Water Act uses the term
‘referring state’ it means the Basin states.
According to the Second Reading Speech, the Bill seeks to ensure that
water used by the Department of Defence facilities and other Commonwealth
agencies in the Murray-Darling Basin is taken into account when the Basin
Plan is being prepared.[24]
Item 5 of the Bill inserts the phrase ‘including the Commonwealth’
in subparagraph 21(4)(c)(ii) so that this can be achieved.
A number of amendments are directed towards the inclusion of the resources
of the Googong Dam Area in the water resource plan for the ACT rather
than the water resource plan for NSW. These are contained in items
7 and 11–13. In particular item 12 inserts proposed
section 63A which specifically provides that the Googong Dam Area
is to be treated as if it was located in the ACT. Items 11 and
13–17 insert notes into various sections of the Water Act in identical
terms that the surface water of the Googong Dam Area is to be treated
as if it were located in the ACT. The effect of these amendments is to
make reference in those sections to proposed section 63A.
Items 9 and 10 provide for amendments to existing sections
33 and 55 respectively. The effect of the amendments is that both the
Basin Plan and a water resource plan may make provision about a matter
that applies, adopts or incorporates any matter contained in an instrument
or other writing which is in force from time to time. The purpose of
the amendments is to ensure documents such as guidelines, models or standards
can be incorporated as and when they are in force, rather than having
to formally amend the Basin Plan or water resource plan.
The purpose of the Canberra Water Supply (Googong Dam) Act 1974
(Googong Dam Act) was to provide a legislative basis for the construction
of a dam and other works for the storage of waters from the Queanbeyan
River to ensure an adequate supply of water to the ACT. Existing section
4 of the Googong Dam Act sets out the functions of the ACT Government
in relation to the Googong Dam area. Those functions are currently exercised
on behalf of the Commonwealth.
Item 1 of Schedule 3 of the Bill amends section 4 to make clear
that the ACT Government is to manage, protect and use the waters of Googong
Dam in a way that is consistent with the objects of the Water Resources
Act 2007 (ACT). Those objects are set out in section 6 as follows:
- to ensure that management and use of the water resources of the Territory
sustain the physical, economic and social wellbeing of the people of
the ACT while protecting the ecosystems that depend on those resources
- to protect aquatic ecosystems and aquifers from damage and, where
practicable, to reverse damage that has already happened, and
- to ensure that the water resources are able to meet the reasonably
foreseeable needs of future generations.
It is not intended that this change will affect any agreements reached
by the Commonwealth, NSW and ACT Governments on the supply of water to
Queanbeyan.[25]
Schedule
4
The Water Amendment Act 2008 (Water Amendment Act) amended the
Water Act to make changes to the cooperative water planning, management
and regulatory regime in the Murray-Darling Basin. Those changes reflected
agreement by the relevant States and the ACT to refer constitutional powers
to the Commonwealth to broaden the Commonwealth’s planning, management
and regulatory powers.[26]
Schedule 3 of the Water Amendment Act contained transitional provisions.
Item 1 of Schedule 4 of this Bill amends clause 4 of the Water
Amendment Act to clarify, for the avoidance of doubt, that the Chief Executive
Officer of the Murray-Darling Basin Authority has been appointed for four
years from 15 December 2008—the date of commencement of the Water Amendment
Act.
Existing subsection 25(1) of the Trade Practices Act 1974 (TPA)
empowers the Australian Competition and Consumer Commission (ACCC), by
resolution, to delegate to a single member, any of its powers under a
number of Acts, including the Water Act. Item 1 of Schedule 5
proposes to amend the subsection to include any rules made under the Water
Act. The rationale for the amendment is that it is the rules made under
the Water Act rather than the Water Act of itself, which contain the substantive
functions of the ACCC.[27]
[2]. G Richardson, In Committee:
Australian Capital Territory (Self Government) Bill 1988, Senate, Debates,
24 November 1988, p. 2742, viewed 23 November 2009, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F1988-11-24%2F0097%22
Bill McCormick and Paula Pyburne
1 December 2009
Bills Digest Service
Parliamentary Library
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