(7) Without limiting subsection (3), particular water charge rules may be limited to either or both of the following:
(a) particular kinds of regulated water charges;
(b) regulated water charges in relation to particular water resources.
(8) Without limiting subsection (3), water charge rules may provide that a particular provision of the rules is a civil penalty provision.
(9) The civil penalty for a contravention of a provision specified under subsection (8) is 200 penalty units.
(10) Without limiting subsection (3), water charge rules may provide that a person who suffers loss or damage as a result of conduct, or an omission, of another person that contravenes the water charge rules may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
93 Process for making water charge rules
(1) The Minister must ask the ACCC for advice about water charge rules the Minister proposes to make, or about proposed amendments or revocations of rules.
(2) The ACCC must give the Minister advice about the proposed water charge rules, or proposed amendments or revocations.
(3) In giving advice to the Minister about proposed water charge rules, or proposed amendments or revocations, in relation to regulated water charges payable to infrastructure operators, the ACCC must have regard to:
(a) the governance arrangements of those operators; and
(b) the current charging arrangements of those operators; and
(c) the history of the charging arrangements of those operators.
(4) The Minister must have regard to the ACCC’s advice in making, amending or revoking the water charge rules.
(5) The regulations must provide for the process that the Minister is to follow in making, amending or revoking water charge rules.
(6) Without limiting subsection (5), the regulations must provide for:
(a) consultations with the Basin States and with infrastructure operators; and
(b) public consultations;
as part of the process of making, amending or revoking water charge rules.
(7) If:
(a) the Minister makes, amends or revokes water charge rules; and
(b) the rules do not reflect the advice that the ACCC gave the Minister under subsection (2) in relation to the rules, or the amendments or revocations;
the Minister must, when the rules, amendments or revocations are laid before a House of the Parliament under the Legislation Act 2003, also lay before that House a document that sets out:
(c) the respects in which the rules, amendments or revocations do not reflect the advice given by the ACCC; and
(d) the Minister’s reasons for departing from that advice.
94 ACCC to monitor water charges and compliance
(1) The ACCC is to monitor:
(a) regulated water charges; and
(b) compliance with the water charge rules.
(2) The ACCC must give the Minister a report on the results of such monitoring.
(3) The reports under subsection (2) must be given to the Minister in accordance with an agreement between the Minister and the ACCC.
95 Minister may formulate model water charge rules
(1) The Minister may formulate, in writing, model rules for regulated water charges.
Note: The model rules do not have any legal effect under this Act but are available for adoption by States, Territories, infrastructure operators and other persons.
(2) Model rules formulated under subsection (1) are not legislative instruments.
96 Transitional provisions relating to water charge rules
(1) A request that the Minister made to the ACCC before the commencement of this section, under subsection 93(1) as in force before that commencement, is taken after that commencement to be a request that the Minister made under that subsection as in force after that commencement.
(2) Regulations made before the commencement of this section for the purposes of subsection 93(5) or (6) as in force before that commencement continue in force after that commencement as if they were made for the purposes of that subsection as in force after that commencement.
Division 2—Water market rules
97 Water market rules
(1) The Minister may make rules (to be called water market rules), applying in Basin States that are referring States and in the Australian Capital Territory, that:
(a) relate to an act that an irrigation infrastructure operator does, or fails to do, in a way that prevents or unreasonably delays arrangements being made that would reduce the share component of a water access entitlement of the operator to allow:
(i) a person’s entitlement to water under an irrigation right against the operator; or
(ii) a part of that entitlement;
to be permanently transformed into a water access entitlement that is held by someone other than the operator; and
(b) contribute to achieving the Basin water market and trading objectives and principles set out in Schedule 3.
Arrangements of the kind referred to in paragraph (a) are referred to in this section as transformation arrangements.
(2) Water market rules are legislative instruments.
(3) Without limiting subsection (1), water market rules may deal with the restrictions that an irrigation infrastructure operator may, or may not, impose in relation to:
(a) transformation arrangements; or
(b) the trading or transferring, by a person who had an irrigation right against the operator, of a water access entitlement, or part of such an entitlement, obtained as a result of transformation arrangements.
(4) Without limiting subsection (3), the restrictions referred to in that subsection include:
(a) restrictions imposed by including provisions in a contract, arrangement or understanding between an irrigation infrastructure operator and:
(i) a person who has an irrigation right against the operator; or
(ii) a person who has a water access entitlement, or part of such an entitlement, that the person obtained as a result of transformation arrangements in relation to an irrigation right the person had against the operator; and
(b) restrictions imposed by the way in which an irrigation infrastructure operator conducts its operations.
(5) Without limiting subsection (1), water market rules may:
(a) permit an irrigation infrastructure operator to require security before allowing:
(i) a person who holds an irrigation right against the operator to obtain a water access entitlement, or part of such an entitlement, through transformation arrangements in relation to the irrigation right; or
(ii) a person who has obtained a water access entitlement, or part of such an entitlement, as a result of transformation arrangements in relation to an irrigation right the person had against the operator to trade or transfer the water access entitlement, or part, obtained; and
(b) provide for transitional arrangements in relation to contracts that have been entered into between an irrigation infrastructure operator and another person before water market rules are made or amended.
(6) Water market rules must not prevent an irrigation infrastructure operator from:
(a) imposing, or requiring the payment of, a regulated water charge; or
(b) requiring the approval of a person who holds a legal or equitable interest in an irrigation right that a person has against the operator before allowing transformation arrangements in relation to that irrigation right.
(7) Without limiting subsection (1), water market rules may provide that a particular provision of the rules is a civil penalty provision.
(8) The civil penalty for a contravention of a provision specified under subsection (7) is 200 penalty units.
(9) Without limiting subsection (1), water market rules may provide that a person who suffers loss or damage as a result of conduct, or an omission, of another person that contravenes the water market rules may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
(10) No claim, action or demand may be made, asserted or taken against an irrigation infrastructure operator for anything done by the operator solely for the purpose of complying with water market rules.
(11) Before the Basin Plan first takes effect, this section applies in relation to any entitlement that is a perpetual or ongoing entitlement, by or under a law of a State or Territory, to exclusive access to a share of the Basin water resources as if the entitlement were a water access entitlement.
98 Process for making water market rules
(1) The Minister must ask the ACCC for advice about water market rules the Minister proposes to make, or about proposed amendments or revocations of rules.
(2) The ACCC must give the Minister advice about the proposed water market rules, or proposed amendments or revocations.
(3) The Minister must have regard to the ACCC’s advice in making, amending or revoking the water market rules.
(4) The regulations must provide for the process that the Minister is to follow in making, amending or revoking water market rules.
(5) Without limiting subsection (4), the regulations must provide for:
(a) consultations with the Basin States and with infrastructure operators; and
(b) public consultations;
as part of the process of making, amending or revoking water market rules.
(6) If:
(a) the Minister makes, amends or revokes water market rules; and
(b) the rules do not reflect the advice that the ACCC gave the Minister under subsection (2) in relation to the rules, or the amendments or revocations;
the Minister must, when the rules, amendments or revocations are laid before a House of the Parliament under the Legislation Act 2003, also lay before that House a document that sets out:
(c) the respects in which the rules, amendments or revocations do not reflect the advice given by the ACCC; and
(d) the Minister’s reasons for departing from that advice.
99 ACCC to monitor transformation arrangements and compliance
(1) The ACCC is to monitor:
(a) transformation arrangements; and
(b) compliance with the water market rules.
(2) The ACCC must give the Minister a report on the results of such monitoring.
(3) The reports under subsection (2) must be given to the Minister in accordance with an agreement between the Minister and the ACCC.
100 Transitional provisions relating to water market rules
(1) A request that the Minister made to the ACCC before the commencement of this section, under subsection 98(1) as in force before that commencement, is taken after that commencement to be a request that the Minister made under that subsection as in force after that commencement.
(2) Regulations made before the commencement of this section for the purposes of subsection 98(4) or (5) as in force before that commencement continue in force after that commencement as if they were made for the purposes of that subsection as in force after that commencement.
Division 3—Miscellaneous
100A Functions and powers of the ACCC
The ACCC has, for the purposes of this Part:
(a) the functions and powers conferred on it under Part 8 as an appropriate enforcement agency; and
(b) the functions and powers conferred on it under section 155 of the Competition and Consumer Act 2010.
Part 4A—Extended operation of Basin water charge and water market rules
100B Extended operation of Basin water charge rules
(1) Water charge rules, and Division 1 of Part 4, apply in relation to all of the water resources in a referring State, or part of a referring State, that are not Basin water resources if:
(a) a law of the State provides that this section applies to the State, or that part of the State; and
(b) the regulations provide that this section applies to the State, or that part of the State.
(2) Water charge rules, and Division 1 of Part 4, apply in relation to all of the water resources in the Northern Territory, or part of the Territory, if:
(a) a law of the Northern Territory provides that this section applies to the Territory, or that part of the Territory; and
(b) the regulations provide that this section applies to the Northern Territory, or that part of the Territory.
(3) However, water charge rules, and Division 1 of Part 4, do not apply in relation to:
(a) water resources that are prescribed by the regulations for the purposes of this paragraph; and
(b) urban water supply activities beyond the point at which the water has been removed from a water resource in the referring State, or the Northern Territory.
(4) This section has effect despite subsection 91(2).
(5) This section does not affect the operation of Part 4 in relation to Basin water resources.
100C Extended operation of Basin water market rules
(1) Water market rules, and Division 2 of Part 4, apply in relation to all the non‑Basin water access entitlements in a referring State, or in a particular area of a referring State, if:
(a) a law of the State provides that this section applies in relation to the non‑Basin water access entitlements in the State, or in that area of the State; and
(b) the regulations provide that this section applies in relation to the non‑Basin water access entitlements in the State, or in that area of the State.
(2) Water market rules, and Division 2 of Part 4, apply in relation to all the non‑Basin water access entitlements in the Northern Territory, or in a particular area of the Northern Territory if:
(a) a law of the Northern Territory provides that this section applies in relation to the non‑Basin water access entitlements in the Territory, or in that area of the Territory; and
(b) the regulations provide that this section applies in relation to the non‑Basin water access entitlements in the Territory, or in that area of the Territory.
(3) However, water market rules, and Division 2 of Part 4, do not apply in relation to non‑Basin water access entitlements that are prescribed by the regulations for the purposes of this subsection.
(4) Water market rules, and Division 2 of Part 4, apply for the purposes of this section as if non‑Basin water access entitlements were water access entitlements.
(5) A non‑Basin water access entitlement is a perpetual or ongoing entitlement, by or under a law of a State or Territory, to exclusive access to a share of the water resources of an area in the State or Territory that are not Basin water resources.
(6) This section does not affect the operation of Part 4 in relation to Basin water resources.
100D Functions and powers of the ACCC
The ACCC has, for the purposes of this Part:
(a) the functions and powers conferred on it under Part 8 as an appropriate enforcement agency; and
(b) the functions and powers conferred on it under section 155 of the Competition and Consumer Act 2010.
Part 5—Water Markets Intermediaries Code and trust accounting framework
Division 1—Simplified outline of Part
100E Simplified outline
This Part provides for a Water Markets Intermediaries Code to regulate the conduct of eligible water markets intermediaries towards participants and potential participants in the water market.
Eligible water markets intermediaries must not contravene the code.
The ACCC has powers under this Part to issue public warning notices, seek orders to redress loss or damage, and require the giving of information and the production of documents.
Division 2—Application of Part
100F Constitutional operation
(1) This Part, and any other provision of this Act or any other Act that relates to this Part, applies to the provision of services by an eligible water markets intermediary that is a constitutional corporation.
(2) This Part, and any other provision of this Act or any other Act that relates to this Part, applies to the provision of services by an eligible water markets intermediary if:
(a) the person to whom the service is provided is a constitutional corporation or is engaging in trade with a constitutional corporation; or
(b) the service is provided in the course of trade and commerce:
(i) between the States; or
(ii) between a State and a Territory or between 2 Territories; or
(iii) between Australia and places outside Australia; or
(c) the service is provided to a person in a Territory, or in relation to a water resource in a Territory.
Division 3—Water Markets Intermediaries Code
100G Regulations may prescribe Water Markets Intermediaries Code
Water Markets Intermediaries Code
(1) The regulations may prescribe a code, to be known as the Water Markets Intermediaries Code, for the purposes of regulating the conduct of eligible water markets intermediaries towards participants and potential participants in the water market.
(2) Without limiting the matters for which the Water Markets Intermediaries Code may make provision, the code may make provision for requirements in relation to the following:
(a) imposing an obligation upon eligible water markets intermediaries to act in the best interests of clients, and in accordance with clients’ instructions;
(b) provision of information to clients, including in relation to the interests of eligible water markets intermediaries;
(c) provide for the keeping and retention of records for the purposes of the Code or for the purposes of Division 5 relating to trust accounting including, but not limited to the following:
(i) the kind of records that must be kept;
(ii) specific details that must be recorded including, but not limited to, client details, disclosures to clients, and written authorities and instructions given by clients;
(iii) records relating to complaints and resolution of complaints;
(iv) records relating to trades;
(v) financial and accounting records;
(vi) the period for which records must be retained, including any period after an entity ceases to be an eligible water markets intermediary;
(d) holding clients’ eligible tradeable water rights;