Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) Agreement;
(b) Basin Plan;
(c) Basin State;
(d) eligible tradeable water right;
(e) eligible water markets intermediary;
(f) Murray‑Darling Basin;
(g) water information;
(h) Water Markets Intermediaries Code;
(i) water markets intermediary services;
(j) water resources.
(1) In these Regulations:
Act means the Water Act 2007.
Australian ADI has the same meaning as in section 9 of the Corporations Act 2001.
bulk water service means one or more of the following:
(a) a service that is provided for the storage of water that is primarily stored on‑river;
(b) a service that is provided for the delivery of water that is primarily delivered on‑river.
category, in relation to water information, means a category of water information specified in regulation 7.03.
Category A person means a person specified as a Category A person in the document titled Persons and Classes of Persons (see regulation 1.06).
Category B person means a person specified as a Category B person in the document titled Persons and Classes of Persons (see regulation 1.06).
Category C person means a person specified as a Category C person in the document titled Persons and Classes of Persons (see regulation 1.06).
Category D person means a person specified as a Category D person in the document titled Persons and Classes of Persons (see regulation 1.06).
Category E person means a person specified as a Category E person in the document titled Persons and Classes of Persons (see regulation 1.06).
Category F person means a person specified as a Category F person in the document titled Persons and Classes of Persons (see regulation 1.06).
Category G person means a person specified as a Category G person in the document titled Persons and Classes of Persons (see regulation 1.06).
Category H person means a person specified as a Category H person in the document titled Persons and Classes of Persons (see regulation 1.06).
Part Part 8 - Water Regulations 2008 - Enforcement | Zoe
Category K person means a person specified as a Category K person in the document titled Persons and Classes of Persons (see regulation 1.06).
Category L person means a person specified as a Category L person in the document titled Persons and Classes of Persons (see regulation 1.06).
Category M person means a person specified as a Category M person in the document titled Persons and Classes of Persons (see regulation 1.06).
data management system means the software and hardware used to manage the storage of and access to information held in a set of related files.
electronic format means a format that is machine readable, but does not include scanned documents.
financial year, of an eligible water markets intermediary, has the same meaning as in subsection 100V(6) of the Act.
grace period, for a person: see subregulation 7.04(1A).
related party, of an eligible water markets intermediary, means an entity that is, or has been in the previous 6 months:
(a) if the intermediary is a partnership—a partner of the partnership; or
(b) if the intermediary is a trust—a trustee of the trust; or
(c) if the intermediary is an unincorporated association—a member of the committee of management of the association; or
(d) if the intermediary, or a person covered by a preceding paragraph, is a body corporate:
(i) a director, secretary, employee or officer of the body corporate; or
(ii) a related body corporate (within the meaning of the Corporations Act 2001) in relation to the intermediary; or
(iii) a director, secretary, employee or officer of such a related body corporate; or
(e) an entity controlled by a person covered by a preceding paragraph; or
(f) a relative (within the meaning of the Racial Discrimination Act 1975) or a near relative (within the meaning of the Sex Discrimination Act 1984) of:
(i) the intermediary; or
(ii) a person covered by a preceding paragraph; or
(g) an employee of the intermediary; or
(h) if a contractor of the intermediary has entered into an exclusive agreement to act as a broker for the intermediary—the contractor.
subcategory, in relation to water information, means a subcategory of water information specified in regulation 7.03 and Schedule 3
water connection means a distribution point for a water service provided to an end user.
web service means a software system designed to support machine‑to‑machine interaction, in which the machines are capable of being used or operated reciprocally over a network of computers.
(2) In these Regulations:
GL is an acronym for gigalitre.
ML is an acronym for megalitre.
1.04 Interpretation—periods of time
(1) A reference to an hour in these Regulations is to a period of 60 minutes starting on the hour (eg 12:00).
(2) A reference to a day in these Regulations is to a period of 24 hours starting at 12:00 midnight.
(3) A reference to a week in these Regulations is to a period of seven consecutive days starting on the first moment of a Monday and finishing at the end of the following Sunday.
(4) A reference to a year in these Regulations is to a financial year.
1.05 Definition of Basin water resources in subsection 4(1) of Act—prescribed water resources
(1) For paragraph (a) of the definition of Basin water resources in subsection 4(1) of the Act, the following water resources are prescribed:
(a) ground water occurring beneath area 1, 2, 3, 4 or 5 of the Murray‑Darling Basin;
(b) surface water occurring within area 1, 2, 3, 4 or 5 of the Murray‑Darling Basin;
(c) ground water occurring beneath area 6 or 7 of the Murray‑Darling Basin.
(2) In each Part of Schedule 1, all geographic coordinates are expressed in terms of the Geocentric Datum of Australia 1994.
Note: The Geocentric Datum of Australia 1994 (also known as GDA 94) was published in Gazette No. GN 35 of 6 September 1995.
(3) In this regulation:
area 1 means the area described in Part 1 of Schedule 1.
area 2 means the area described in Part 2 of Schedule 1.
area 3 means the area described in Part 3 of Schedule 1.
area 4 means the area described in Part 4 of Schedule 1.
area 5 means the area described in Part 5 of Schedule 1.
area 6 means the area described in Part 6 of Schedule 1.
area 7 means the area described in Part 7 of Schedule 1.
1.05A Definition of bulk water charge in subsection 4(1) of the Act—prescribed persons
(1) A person is prescribed for paragraph (c) of the definition of bulk water charge in subsection 4(1) of the Act if:
(a) the person diverts water directly from a watercourse for the person’s use, including for one of the following purposes:
(i) agricultural purposes;
(ii) industrial purposes;
(iii) irrigation;
(iv) stock and domestic water use; and
(b) the water is made available through a bulk water service.
1.05B Definition of State water management law in subsection 4(1) of the Act—prescribed laws of Basin States
For the purposes of the definition of State water management law in subsection 4(1) of the Act, the Landscape South Australia Act 2019 (SA) is prescribed.
1.06 References to documents published by Bureau
(1) A reference in these Regulations to the document titled Persons and Classes of Persons is a reference to the document by that name published from time to time by the Bureau and available at www.bom.gov.au/water/regulations.
(2) A reference in these Regulations to the document titled Commercially Sensitive Sites is a reference to the document by that name published from time to time by the Bureau and available at www.bom.gov.au/water/regulations.
(3) A reference in these Regulations to the document titled Metadata and contextual information requirements is a reference to the document by that name published from time to time by the Bureau and available at www.bom.gov.au/water/regulations.
(4) A reference in these Regulations to the document titled Urban Water Management Information Requirements is a reference to the document by that name published from time to time by the Bureau and available at www.bom.gov.au/water/regulations.
Part 2—Management of Basin water resources
Division 2.1—Basin plan
2.01 Snowy water licence variations
(1) For subsection 21(7) of the Act, the following variations of the Snowy water licence are prescribed:
(a) the variation issued by the Commissioner of the NSW Office of Water for the Water Administration Ministerial Corporation on 29 April 2010;
(b) the variation issued by the NSW Minister for Primary Industries for the Water Administration Ministerial Corporation on 4 October 2011.
Note 1: Subsection 21(6) of the Act provides that the Basin plan must not be inconsistent with the provisions of the Snowy water licence.
Note 2: Subsection 21(7) of the Act provides that a variation of the Snowy water licence is to be disregarded unless the variation is prescribed by the regulations.
Snowy water licence means the licence issued under section 22 of the Snowy Hydro Corporatisation Act 1997 of New South Wales.
2.03 Minor or non‑substantive amendments of Basin Plan
Authority may make minor or non‑substantive amendments
(1) For the purposes of paragraph 49(1)(a) of the Act, the Authority may make the kind of minor, or non‑substantive, amendment of the Basin Plan to which subregulations (2) and (4) apply.
Note: An amendment under this regulation is a legislative instrument: see subsection 33(3) of the Act.
(2) This subregulation applies to an amendment that:
(a) goes only to a matter of spelling, punctuation, grammar or syntax, or the use of conjunctives and disjunctives; or
(b) updates a reference to:
(i) any law, or a provision of any law; or
(ii) a person, body or other entity, or an office, position, place, document or thing; or
(c) replaces a reference to a provision of any law with a different form of reference to the provision; or
(d) numbers or renumbers a provision of the Basin Plan; or
(e) changes the order of definitions or other provisions of the Basin Plan; or
(f) changes the way of referring to or expressing a number, year, date, time, amount of money or other amount, quantity or measurement; or
Example: A reference in a form to “this [blank] day of [blank] 20…” may be changed to “[Date]”.
(g) changes language that indicates gender or that could be taken to indicate gender; or
(h) omits a provision of the Basin Plan that has expired, the operation of which is exhausted or spent, or that is otherwise obsolete or redundant; or
(i) omits a reference to any law (or a provision of any law) that has expired, the operation of which is exhausted or spent, or that is otherwise obsolete or redundant; or
(j) corrects any of the following errors:
(i) errors in numbering, cross‑referencing and alphabetical ordering;
(ii) errors in references to any law, or provisions of any law;
(iii) errors arising out of an amendment of any law;
(iv) any other errors of a nature similar to those mentioned in subparagraphs (i) to (iii); or
(k) affects the format, layout or printing style of the Basin Plan, or any other presentational aspect of the Basin Plan; or
(l) is consequential on any other change made to the Basin Plan under this regulation.
(3) A reference in subregulation (2) to any law includes a reference to a law of the Commonwealth, a State or a Territory.
(4) This subregulation applies to an amendment that does not alter:
(a) rights or obligations provided for by the Basin Plan; or
(b) the substance of the Basin Plan.
Process of making minor or non‑substantive amendments
(5) For the purposes of paragraph 49(1)(b) of the Act, the process of making an amendment under subregulation (1) is as follows:
(a) the Murray‑Darling Basin Ministerial Council certifies in writing that the amendment does not alter any of the things listed in subregulation (4);
(b) the Authority makes the amendment.
Division 2.1A—Water resource plans
2.11 Timeframe and process for giving proposed water resource plans to the Authority
Authority
(1) This regulation is made for the purposes of paragraphs 63(9)(a) and (b) of the Act.
Date for giving proposed water resource plan to Authority
(2) For a Basin State to give the Authority a proposed water resource plan under paragraph 63(1)(a) of the Act, the plan must be given to the Authority no later than 28 February 2019.
Extension of up to 2 months
(3) The Minister may, by written notice, extend the period within which a Basin State may give a proposed water resource plan under paragraph 63(1)(a) of the Act by a specified period ending no later than 30 April 2019.
(4) The Minister may only grant the extension on request by the Basin State made, in writing, no later than 28 February 2019. The Minister may grant the extension before, on or after that date.
Extension of up to 10 months
(5) Subject to subregulations (6) and (7), the Minister may, by written notice, extend the period within which a Basin State may give a proposed water resource plan under paragraph 63(1)(a) of the Act by a specified period ending no later than 31 December 2019.
(6) In considering whether to grant an extension under subregulation (5) for a particular period, the Minister must have regard to:
(a) whether, in the Minister’s opinion, the plan is likely to be given to the Authority within that period; and
(b) any other matters the Minister considers to be relevant to the water resource plan area to be covered by the plan.
(7) The Minister may only grant an extension under subregulation (5) on request by the Basin State made, in writing, no later than:
(a) if an extension has been granted to the Basin State under subregulation (3)—the end of the extended period under that subregulation; or
(b) otherwise—28 February 2019.
The Minister may grant the extension before, on or after the date by which the request must be made.
Authority may request information about a proposed water resource plan
(8) The Authority may, in writing, request information from a Basin State relating to a proposed water resource plan for the purpose of:
(a) considering the plan under paragraph 63(3)(a) of the Act; or
(b) preparing recommendations under paragraph 63(3)(b) of the Act on whether the plan should be accredited.
(9) The Authority is not required to consider information given in response to a request under subregulation (8) unless the information is given:
(a) in writing; and
(b) within the period of 14 days beginning on the day the request is made.
(10) The Authority may, in writing, extend or further extend the period referred to in paragraph (9)(b).
2.11A Minor or non‑substantive amendments of water resource plans
(1) For the purposes of subsection 66(1) of the Act, a minor, or non‑substantive, amendment:
(a) of a water resource plan accredited under section 63 of the Act; and
(b) to which subregulations (2) and (4) apply;
is a kind of amendment to which section 66 of the Act applies.
(2) This subregulation applies to an amendment that:
(a) goes only to a matter of spelling, punctuation, grammar or syntax, or the use of conjunctives and disjunctives; or
(b) updates a reference to:
(i) any law, or a provision of any law; or
(ii) a person, body or other entity, or an office, position, place, document or thing; or
(c) changes the format of the water resource plan; or
(d) numbers or renumbers a provision of the water resource plan; or
(e) changes the order of definitions or other provisions of the water resource plan; or
(f) affects the format, layout or printing style of maps that form part of the water resource plan, so long as the amendment does not change the depiction of the boundaries of:
(i) the water resource plan area; or
(ii) any SDL resource unit in the water resource plan area; or
(g) corrects any of the following errors:
(i) errors in numbering, cross‑referencing and alphabetical ordering;
(ii) errors in references to any law, or provisions of any law;
(iii) any other errors of a nature similar to those mentioned in subparagraphs (i) and (ii).
(3) A reference in subregulation (2) to any law includes a reference to a law of the Commonwealth, a State or a Territory.
(4) This subregulation applies to an amendment that does not:
(a) alter the substance of the water resource plan; or
(b) affect rights or obligations.
2.12 Process for preparation of water resource plans by Authority
(1) This regulation is made for the purposes of paragraph 68(6)(a) of the Act.
(2) In preparing a water resource plan for a water resource plan area, the Authority must:
(a) undertake consultations with each Basin State within which that area, or another water resource plan area adjacent to that area, is located; and
(b) undertake any other consultations in relation to the plan the Authority considers necessary or appropriate; and
(c) consider the results of the consultations undertaken under paragraphs (a) and (b).
(3) In addition, the Authority must consider the results of consultations undertaken by a Basin State in respect of the water resource plan area if:
(a) that area is:
(i) located in the Basin State; or
(ii) adjacent to another water resource plan area located in the Basin State; and
(b) the Basin State has consulted persons or bodies in relation to a water resource plan, or amendments of such a plan, proposed or prepared by the Basin State for that area or the adjacent water resource plan area; and
(c) the Basin State gives the results of the consultations to the Authority.
For subparagraph 74A(1)(b)(ii) of the Act, the day specified for Queensland is 28 October 2011.
Part 4—Water charge rules and water market rules
Division 4.1A—Regulated water charges
4.01A Regulated water charges in section 91 of the Act—prescribed fees or charges
(1) This regulation is made for the purposes of paragraph 91(1)(d) of the Act.
(2) The following kinds of fees or charges, to the extent that they do not relate to an irrigation network or an urban water supply network, or are not bulk water charges, are prescribed:
(a) a fee or charge payable to an infrastructure operator for access to the operator’s water service infrastructure (or services provided in relation to that access);
(b) a fee or charge payable to an infrastructure operator for changing access to the operator’s water service infrastructure (or services provided in relation to that access), including a fee or charge payable to a bulk water supplier for changing access to a bulk water service;
(c) a fee or charge payable to an infrastructure operator for terminating access to the operator’s water service infrastructure (or services provided in relation to that access), including a fee or charge payable to a bulk water supplier for terminating a bulk water service;
(d) a fee or charge payable to an infrastructure operator for surrendering to the operator a right to the delivery of water through the operator’s water service infrastructure.
(3) In this regulation:
bulk water supplier means a person who imposes a bulk water charge for a bulk water service.
urban water supply network means water service infrastructure that is operated primarily for delivering water for an urban water supply activity beyond the point at which the water has been removed from a Basin water resource.
Division 4.1—Water charge rules
Subdivision 4.1.1—Purpose of Division
4.01 Purpose of Division
This Division is made for the purposes of sections 93 and 256 of the Act.
Subdivision 4.1.2—ACCC advice
4.02 Minister to request ACCC advice
In proposing to make, amend or revoke water charge rules under subsection 92(1) of the Act, the Minister:
(a) must ask the ACCC for advice before proceeding with the proposal; and
(b) may ask the ACCC to provide draft rules as part of its advice; and
(c) must, by written notice, require the ACCC to provide its advice by a specified date; and
(d) may, by written notice, extend the timeframe within which the ACCC is to provide its advice; and
(e) must ask the ACCC to provide with its advice a schedule of any consultations that it undertook for the purpose of providing its advice, including any written submissions and any meetings and hearings; and
(f) may ask the ACCC to provide the formal records of the consultations listed in the schedule; and
(g) must have regard to any records of consultation provided by the ACCC, including records relating to consultation with the Basin States, infrastructure operators and the public; and
(h) must ask the ACCC to identify which, if any, of the records of consultation it provided to the Minister the ACCC is not permitted to publish; and
(i) may adopt the ACCC’s draft rules, with or without variation; and
(j) may develop rules, amendments to rules or revocations of rules, having regard to the ACCC’s advice, if the Minister decides not to adopt the ACCC’s draft rules, or if the ACCC does not include draft rules as part of its advice.
Note 1: The Minister must ask the ACCC to provide advice about water charge rules (see subsection 93(1) of the Act).
Note 2: Several terms used in these regulations are defined in the Act, including Basin State, infrastructure operator and water charge rules.
Subdivision 4.1.3—Consultation for amendments and revocations of a minor or technical nature
4.03 Consultation for amendments and revocations of a minor or technical nature
(1) This regulation applies if the Minister determines, after receiving the ACCC’s advice, that the proposal to make, amend or revoke water charge rules relates to the making of rules, amendments or revocations that are of a minor or technical nature.
(2) The Minister must, by written notice, invite the following to make written submissions about the proposal:
(a) the relevant State Minister for each Basin State;
(b) infrastructure operators within the Murray–Darling Basin;
(c) the public.
Note: A notice under subregulation 4.03(2) may be combined with notices under subregulations 4.04(2) and (3) (see subregulation 4.04(5)).
(3) The notice must:
(a) include a copy of the proposed rules, amendment or revocation or the Internet address at which the proposed rules, amendment or revocation is published; and
(b) specify a date, not less than 4 weeks from the date on which the notice is given, as a date by which any written submissions must be received by the Minister; and
(c) include a statement that the Minister may disclose to the ACCC any written submissions that the Minister receives; and
(d) include a statement that disclosure by the Minister to the ACCC will be on the basis that the ACCC must not disclose any written submissions given to it by the Minister, or any information in the submissions.
Note: In relation to paragraph (d), under subregulation 4.09(2), the Minister must require the ACCC not to publish a submission or information contained in a submission that the Minister has decided is confidential information under paragraph 4.10(1)(b).
(4) An invitation under paragraph (2)(b) or (c) must be given by at least one notice published in each of the following media:
(a) a nationally circulating newspaper;
(b) for each Basin State, a newspaper with an agribusiness focus circulating in the Basin State;
(c) the Internet.
Note: Several terms used in these regulations are defined in the Act, including Basin State, infrastructure operator, Murray–Darling Basin and relevant State Minister.
Subdivision 4.1.4—Publication of rules
4.04 Publication of proposed water charge rules
(1) This regulation applies if, after receiving the ACCC’s advice in respect of a proposal to make, amend or revoke water charge rules, the Minister intends to proceed with the proposal.
(2) The Minister must publish on the Department’s Internet site a notice which includes the following:
(a) a statement that the Minister proposes to make, amend or revoke (as the case may be), water charge rules under subsection 92(1) of the Act;
(b) a copy of the proposed rules;
(c) a summary of the proposed rules;
(d) a copy of the advice provided by the ACCC.
(3) The Minister must publish a notice which includes the following:
(a) a statement that the Minister proposes to make, amend or revoke (as the case may be), water charge rules under subsection 92(1) of the Act;
(b) a statement that a copy of the proposed rules, a summary of the proposed rules, and a copy of the ACCC’s advice is published at the Department’s Internet site;
(c) the Internet address at which the proposed rules are published.
(4) The notice required under subregulation (3) must be published in:
(a) a nationally circulating newspaper; and
(b) for each Basin State, in a newspaper with an agribusiness focus circulating in the Basin State.
(5) The notices required under subregulations (2) and (3) may be combined with the following notices:
(a) if subregulation 4.03(1) applies—a notice under subregulation 4.03(2);
(b) if subregulation 4.06(1), (2) or (3) applies—a notice under the appropriate subregulation.
(6) The Minister must give the notices required under this regulation:
(a) if the Minister is required to undertake consultations under regulation 4.03—not less than 4 weeks before the proposed rules, amendments or revocations are made; or
(b) if the Minister is required to undertake consultations under subregulations 4.06(1), (2) or (3)—not less than 8 weeks before the proposed rules are made, amended or revoked; or
(c) if the Minister is not required to undertake those consultations because the ACCC has consulted as described in regulation 4.05—not less than 4 weeks before the proposed rules are made, amended or revoked.
Subdivision 4.1.5—Consultations
4.05 Minister must consult unless ACCC consults
(1) If regulation 4.03 does not apply, the Minister must, after receiving the ACCC’s advice, and before proceeding with the proposal to make, amend or revoke water charge rules, consult as required under regulation 4.06, unless:
(a) the ACCC’s advice in relation to the proposal includes draft rules; and
(b) the Minister proposes to adopt the draft rules, or draft rules that are, in Minister’s opinion, substantially the same as the draft rules; and
(c) the ACCC provides records of consultation to the Minister, as required under paragraph 4.02(f); and
(d) the Minister is satisfied that, in relation to the draft rules which the Minister intends to adopt, before the ACCC provided its advice, the ACCC invited the following to make written submissions to the ACCC:
(i) the relevant State Minister for each Basin State;
(ii) infrastructure operators within the Murray–Darling Basin;
(iii) the public; and
(e) the Minister is satisfied that invitations made to infrastructure operators within the Murray–Darling Basin, and the public, were made by at least one notice published in each of the following media:
(i) a nationally circulating newspaper;
(ii) for each Basin State, a newspaper with an agribusiness focus circulating in the Basin State;
(iii) the Internet; and
(f) the Minister is satisfied that the timeframes within which written submissions were to be provided to the ACCC have passed.
(2) In forming a view under paragraph (1)(d), (e) or (f), the Minister must have regard to the formal records provided by the ACCC under paragraph 4.02(f).
4.06 Consultation by the Minister
(1) If:
(a) regulation 4.03 does not apply; and
(b) the Minister is not satisfied that the ACCC consulted with the relevant State Minister for each Basin State;
then the Minister must, by written notice, invite the relevant State Minister for each Basin State to make written submissions about the proposed rules.
(2) If:
(a) regulation 4.03 does not apply; and
(b) the Minister is not satisfied that the ACCC consulted with infrastructure operators within the Murray–Darling Basin;
then the Minister must, by written notice, invite infrastructure operators within the Murray–Darling Basin to make written submissions about the proposed rules.
(3) If:
(a) regulation 4.03 does not apply; and
(b) the Minister is not satisfied that the ACCC consulted with the public;
then the Minister must, by written notice, invite the public to make written submissions about the proposed rules.
Note: The notices required under subregulations (1), (2) and (3) may be combined with the notices required under regulation 4.04 (see subregulation 4.04(5)).
(4) A notice given under subregulation (1), (2) or (3) must:
(a) include a copy of the proposed rules or the Internet address at which the proposed rules are published; and
(b) specify a date, not less than 8 weeks from the date on which the notice is given, as a date by which any written submissions must be received by the Minister; and
(c) include a statement that the Minister may disclose to the ACCC any written submissions that the Minister receives, including any information contained in the submissions that the Minister has decided is confidential information under paragraph 4.10(1)(b); and
(d) include a statement that disclosure by the Minister to the ACCC will be on the basis that the ACCC must not disclose a written submission given to it by the Minister, or any information in the submission, that the Minister has decided is confidential information under paragraph 4.10(1)(b); and
. (e) include a statement that the Minister may publish any information in the written submissions that the Minister receives, except information that the Minister has decided is confidential information under paragraph 4.10(1)(b); and
(f) include a statement that a person who provides a written submission may request that the whole or part of the written submission be treated as confidential information.
Note: In relation to paragraph (d), under subregulation 4.09(2), the Minister must require the ACCC not to publish a submission or information contained in a submission that the Minister has decided is confidential information under paragraph 4.10(1)(b).
(5) A notice under subregulation (2) or (3) must be given by at least one notice published in each of the following media:
(a) a nationally circulating newspaper;
(b) for each Basin State, a newspaper with an agribusiness focus circulating in the Basin State;
(c) the Internet.
4.07 Further consultation
Before proceeding with the proposal to make, amend or revoke water charge rules, the Minister may, in addition to the consultation requirements set out in this Division, undertake any further consultation.
Note: Part 3 of the Legislative Instruments Act 2003 deals generally with consultation requirements for legislative instruments.
4.08 Further ACCC advice
(1) If the Minister is considering departing from the ACCC’s advice given in respect of the proposal to make, amend or revoke water charge rules, including any draft rules, the Minister may:
(a) inform the ACCC; and
(b) provide to the ACCC, as set out in regulation 4.09, any records of consultation undertaken by the Minister; and
(c) request further advice from the ACCC about the proposal or the ACCC’s advice.
(2) If the Minister requests further advice from the ACCC, the Minister:
(a) must specify a date by which the ACCC is to provide the further advice; and
(b) may, by written notice, extend the timeframe within which the ACCC is to provide the further advice; and
(c) must publish on the Department’s Internet site any further advice provided by the ACCC, before making, amending or revoking water charge rules.
Subdivision 4.1.6—Disclosure of information
4.09 Minister may disclose to ACCC written submissions
(1) The Minister may, at any time before or after making, amending or revoking water charge rules, disclose to the ACCC:
(a) any written submissions about proposed water charge rules that the Minister receives; or
(b) any information in the submissions, including information that the Minister has decided is confidential information under paragraph 4.10(1)(b).
(2) The Minister must require the ACCC not to publish or disclose a written submission given to it by the Minister, or any information in the submission, that the Minister has decided is confidential information under paragraph 4.10(1)(b).
(3) The Minister must require the ACCC not to publish or disclose a written submission given to it by the Minister, or any information in the submission, if the submission was given to the Minister in response to an invitation made under regulation 4.03.
(4) The Minister may require the ACCC not to publish or disclose a submission or specified information contained in the submission.
4.10 Minister may publish written submissions unless confidential
(1) The Minister may, at any time before or after making, amending or revoking water charge rules, publish any information that is received by the Minister in a written submission about the proposed rules, unless:
(a) the person who gave the information, claims, when giving the information to the Minister, that it contains confidential information; and
(b) the Minister decides that the written submission contains confidential information.
(2) If:
(a) a written submission is given to the Minister under this Division; and
(b) the person who gave the written submission to the Minister claimed that it contained confidential information; and
(c) the Minister decides that the written submission does contain confidential information as claimed;
then the Minister may publish the written submission if the confidential information is omitted.
(3) If, under subregulation (2), the Minister does omit information from a written submission, the Minister must, before publishing the written submission, cause a note to that effect to be included in the document at the place in the document from which the information is omitted.
(4) This regulation does not apply to the provision of written submissions:
(a) that are made in response to an invitation made by the Minister under regulation 4.03; and
(b) by:
(i) the Minister to the ACCC; or
(ii) the ACCC to the Minister under paragraph 4.02(f).
Note 1: Regulation 4.09 deals with confidential information in submissions that the Minister discloses to the ACCC.
Note 2: Regulation 4.12 deals with confidential information in submissions that the ACCC discloses to the Minister.
4.11 Minister disagrees with claim that information is confidential
(1) If:
(a) a person gives a written submission to the Minister under this Division, in relation to a proposal to make, amend or revoke water charge rules; and
(b) the person claims that the submission contains confidential information; and
(c) the Minister decides that the submission does not contain confidential information as claimed; and
(d) the Minister wishes to publish the submission under regulation 4.10;
then the Minister must give the person written notice of the Minister’s decision within 6 weeks of receiving the submission.
(2) The notice must include the following:
(a) a statement that the person may withdraw the claim of confidentiality by giving the Minister written notice to that effect;
(b) a statement that, if the person wishes to withdraw the claim, the person must do so within 21 days of receiving the Minister’s notice under subregulation (1);
(c) a statement that, if the person decides not to withdraw the claim the following applies:
(i) the Minister must return the information to which the claim relates to the person who provided it to the Minister;
(ii) the Minister must not publish the information;
(iii) the Minister must not have regard to the information when making, amending or revoking water charge rules.
(3) If the person withdraws the claim, then the Minister may publish the entire submission.
(4) If the person does not withdraw the claim within 21 days of receiving the Minister’s notice under subregulation (1), then the Minister:
(a) must return the information to which the claim relates to the person; and
(b) must not publish the information; and
(c) must not have regard to the information when making, amending or revoking water charge rules.
4.12 Minister may publish records provided by ACCC
The Minister may, at any time before or after making, amending or revoking water charge rules, publish:
(a) a schedule provided to the Minister by the ACCC under paragraph 4.02(e); and
(b) any records of consultation that the ACCC provides to the Minister under this Division unless, under paragraph 4.02(h), the ACCC identifies the records as being records that the ACCC itself is not permitted to publish.
Subdivision 4.1.7—Failure to comply
4.13 Consequence of failure to comply with a requirement in this Division
A failure to comply with a requirement specified in this Division does not affect the validity or enforceability of the water charge rules.
Division 4.2—Water market rules
Subdivision 4.2.1—Purpose of Division
4.14 Purpose of Division
This Division is made for the purposes of sections 98 and 256 of the Act.
Subdivision 4.2.2—ACCC advice
4.15 Minister to request ACCC advice
In proposing to make, amend or revoke water market rules under subsection 97(1) of the Act, the Minister:
(a) must ask the ACCC for advice before proceeding with the proposal; and
(b) may ask the ACCC to provide draft rules as part of its advice; and
(c) must, by written notice, require the ACCC to provide its advice by a specified date; and
(d) may, by written notice, extend the timeframe within which the ACCC is to provide its advice; and
(e) must ask the ACCC to provide with its advice a schedule of any consultations that it undertook for the purpose of providing its advice, including any written submissions and any meetings and hearings; and
(f) may ask the ACCC to provide the formal records of the consultations listed in the schedule; and
(g) must have regard to any records of consultation provided by the ACCC, including records relating to consultation with the Basin States, irrigation infrastructure operators and the public; and
(h) must ask the ACCC to identify which, if any, of the records of consultation it provided to the Minister the ACCC is not permitted to publish; and
(i) may adopt the ACCC’s draft rules, with or without variation; and
(j) may develop rules, amendments to rules or revocations of rules, having regard to the ACCC’s advice, if the Minister decides not to adopt the ACCC’s draft rules, or if the ACCC does not include draft rules as part of its advice.
Note 1: The Minister must ask the ACCC to provide advice about water market rules (see subsection 98(1) of the Act).
Note 2: Several terms used in these regulations are defined in the Act, including Basin State, infrastructure operator and water market rules.
Subdivision 4.2.3—Consultation for amendments and revocations of a minor or technical nature
4.16 Consultation for amendments and revocations of a minor or technical nature
(1) This regulation applies if the Minister determines, after receiving the ACCC’s advice, that the proposal to make, amend or revoke water market rules relates to the making of rules, amendments or revocations that are of a minor or technical nature.
(2) The Minister must, by written notice, invite the following to make written submissions about the proposal:
(a) the relevant State Minister for each Basin State;
(b) irrigation infrastructure operators within the Murray‑Darling Basin;
(c) the public.
Note: A notice under subregulation 4.16(2) may be combined with notices under subregulations 4.17(2) and (3) (see subregulation 4.17(5)).
(3) The notice must:
(a) include a copy of the proposed rules, amendment or revocation or the Internet address at which the proposed rules, amendment or revocation is published; and
(b) specify a date, not less than 4 weeks from the date on which the notice is given, as a date by which any written submissions must be received by the Minister; and
(c) include a statement that the Minister may disclose to the ACCC any written submissions that the Minister receives; and
(d) include a statement that disclosure by the Minister to the ACCC will be on the basis that the ACCC must not disclose any written submissions given to it by the Minister, or any information in the submissions.
Note: In relation to paragraph (d), under subregulation 4.22(2), the Minister must require the ACCC not to publish a submission or information contained in a submission that the Minister has decided is confidential information under paragraph 4.23(1)(b).
(4) An invitation under paragraph (2)(b) or (c) must be given by at least one notice published in each of the following media:
(a) a nationally circulating newspaper;
(b) for each Basin State, a newspaper with an agribusiness focus circulating in the Basin State;
(c) the Internet.
Note: Several terms used in these regulations are defined in the Act, including Basin State, irrigation infrastructure operator, Murray–Darling Basin and relevant State Minister.
Subdivision 4.2.4—Publication of rules
4.17 Publication of proposed water market rules
(1) This regulation applies if, after receiving the ACCC’s advice in respect of a proposal to make, amend or revoke water market rules, the Minister intends to proceed with the proposal.
(2) The Minister must publish on the Department’s Internet site a notice which includes the following:
(a) a statement that the Minister proposes to make, amend or revoke (as the case may be), water market rules under subsection 97(1) of the Act;
(b) a copy of the proposed rules;
(c) a summary of the proposed rules;
(d) a copy of the advice provided by the ACCC.
(3) The Minister must publish a notice which includes the following:
(a) a statement that the Minister proposes to make, amend or revoke (as the case may be), water market rules under subsection 97(1) of the Act;
(b) a statement that a copy of the proposed rules, a summary of the proposed rules, and a copy of the ACCC’s advice is published at the Department’s Internet site;
(c) the Internet address at which the proposed rules are published.
(4) The notice required under subregulation (3) must be published in:
(a) a nationally circulating newspaper; and
(b) for each Basin State, in a newspaper with an agribusiness focus circulating in the Basin State.
(5) The notices required under subregulations (2) and (3) may be combined with the following notices:
(a) if subregulation 4.16(1) applies—a notice under subregulation 4.16(2);
(b) if subregulation 4.19(1), (2) or (3) applies—a notice under the appropriate subregulation.
(6) The Minister must give the notices required under this regulation:
(a) if the Minister is required to undertake consultations under regulation 4.16—not less than 4 weeks before the proposed rules, amendments or revocations are made; or
(b) if the Minister is required to undertake consultations under subregulations 4.19(1), (2) or (3)—not less than 8 weeks before the proposed rules are made, amended or revoked; or
(c) if the Minister is not required to undertake those consultations because the ACCC has consulted as described in regulation 4.18—not less than 4 weeks before the proposed rules are made, amended or revoked.
Subdivision 4.2.5—Consultations
4.18 Minister must consult unless ACCC consults
(1) If regulation 4.16 does not apply, the Minister must, after receiving the ACCC’s advice, and before proceeding with the proposal to make, amend or revoke water market rules, consult as required under regulation 4.19, unless:
(a) the ACCC’s advice in relation to the proposal includes draft rules; and
(b) the Minister proposes to adopt the draft rules, or draft rules that are, in Minister’s opinion, substantially the same as the draft rules; and
(c) the ACCC provides records of consultation to the Minister, as required under paragraph 4.15(f); and
(d) the Minister is satisfied that, in relation to the draft rules which the Minister intends to adopt, before the ACCC provided its advice, the ACCC invited the following to make written submissions to the ACCC:
(i) the relevant State Minister for each Basin State;
(ii) irrigation infrastructure operators within the Murray–Darling Basin;
(iii) the public; and
(e) the Minister is satisfied that invitations made to irrigation infrastructure operators within the Murray–Darling Basin, and the public, were made by at least one notice published in each of the following media:
(i) a nationally circulating newspaper;
(ii) for each Basin State, a newspaper with an agribusiness focus circulating in the Basin State;
(iii) the Internet; and
(f) the Minister is satisfied that the timeframes within which written submissions were to be provided to the ACCC have passed.
(2) In forming a view under paragraph (1)(d), (e) or (f), the Minister must have regard to the formal records provided by the ACCC under paragraph 4.15(f).
4.19 Consultation by the Minister
(1) If:
(a) regulation 4.16 does not apply; and
(b) the Minister is not satisfied that the ACCC consulted with the relevant State Minister for each Basin State;
then the Minister must, by written notice, invite the relevant State Minister for each Basin State to make written submissions about the proposed rules.
(2) If:
(a) regulation 4.16 does not apply; and
(b) the Minister is not satisfied that the ACCC consulted with irrigation infrastructure operators within the Murray‑Darling Basin;
then the Minister must, by written notice, invite irrigation infrastructure operators within the Murray–Darling Basin to make written submissions about the proposed rules.
(3) If:
(a) regulation 4.16 does not apply; and
(b) the Minister is not satisfied that the ACCC consulted with the public;
then the Minister must, by written notice, invite the public to make written submissions about the proposed rules.
Note: The notices required under subregulations (1), (2) and (3) may be combined with the notices required under regulation 4.17 (see subregulation 4.17(5)).
(4) A notice given under subregulation (1), (2) or (3) must:
(a) include a copy of the proposed rules or the Internet address at which the proposed rules are published; and
(b) specify a date, not less than 8 weeks from the date on which the notice is given, as a date by which any written submissions must be received by the Minister; and
(c) include a statement that the Minister may disclose to the ACCC any written submissions that the Minister receives, including any information contained in the submissions that the Minister has decided is confidential information under paragraph 4.23(1)(b); and
(d) include a statement that disclosure by the Minister to the ACCC will be on the basis that the ACCC must not disclose a written submission given to it by the Minister, or any information in the submission, that the Minister has decided is confidential information under paragraph 4.23(1)(b); and
. (e) include a statement that the Minister may publish any information in the written submissions that the Minister receives, except information that the Minister has decided is confidential information under paragraph 4.23(1)(b); and
(f) include a statement that a person who provides a written submission may request that the whole or part of the written submission be treated as confidential information.
Note: In relation to paragraph (d), under subregulation 4.22(2), the Minister must require the ACCC not to publish a submission or information contained in a submission that the Minister has decided is confidential information under paragraph 4.23(1)(b).
(5) An invitation under subregulation (2) or (3) must be given by at least one notice published in each of the following media:
(a) a nationally circulating newspaper;
(b) for each Basin State, a newspaper with an agribusiness focus circulating in the Basin State;
(c) the Internet.
4.20 Further consultation
Before proceeding with the proposal to make, amend or revoke water market rules, the Minister may, in addition to the consultation requirements set out in this Division, undertake any further consultation.
Note: Part 3 of the Legislative Instruments Act 2003 deals generally with consultation requirements for legislative instruments.
4.21 Further ACCC advice
(1) If the Minister is considering departing from the ACCC’s advice given in respect of the proposal to make, amend or revoke water market rules, including any draft rules, the Minister may:
(a) inform the ACCC; and
(b) provide to the ACCC, as set out in regulation 4.22, any records of consultation undertaken by the Minister; and
(c) request further advice from the ACCC about the proposal or the ACCC’s advice.
(2) If the Minister requests further advice from the ACCC, the Minister:
(a) must specify a date by which the ACCC is to provide the further advice; and
(b) may, by written notice, extend the timeframe within which the ACCC is to provide the further advice; and
(c) must publish on the Department’s Internet site any further advice provided by the ACCC, before making, amending or revoking water market rules.
Subdivision 4.2.6—Disclosure of information
4.22 Minister may disclose to ACCC written submissions
(1) The Minister may, at any time before or after making, amending or revoking water market rules, disclose to the ACCC:
(a) any written submissions about proposed water market rules that the Minister receives; or
(b) any information in the submissions, including information that the Minister has decided is confidential information under paragraph 4.23(1)(b).
(2) The Minister must require the ACCC not to publish or disclose a written submission given to it by the Minister, or any information in the submission, that the Minister has decided is confidential information under paragraph 4.23(1)(b).
(3) The Minister must require the ACCC not to publish or disclose a written submission given to it by the Minister, or any information in the submission, if the submission was given to the Minister in response to an invitation made under regulation 4.16.
(4) The Minister may require the ACCC not to publish or disclose a submission or specified information contained in the submission.
4.23 Minister may publish written submissions unless confidential
(1) The Minister may, at any time before or after making, amending or revoking water market rules, publish any information that is received by the Minister in a written submission about the proposed rules, unless:
(a) the person who gave the information, claims, when giving the information to the Minister, that it contains confidential information; and
(b) the Minister decides that the written submission contains confidential information.
(2) If:
(a) a written submission is given to the Minister under this Division; and
(b) the person who gave the written submission to the Minister claimed that it contained confidential information; and
(c) the Minister decides that the written submission does contain confidential information as claimed;
then the Minister may publish the written submission if the confidential information is omitted.
(3) If, under subregulation (2), the Minister does omit information from a written submission, the Minister must, before publishing the written submission, cause a note to that effect to be included in the document at the place in the document from which the information is omitted.
(4) This regulation does not apply to the provision of written submissions:
(a) that are made in response to an invitation made by the Minister under regulation 4.16; and
(b) by:
(i) the Minister to the ACCC; or
(ii) the ACCC to the Minister under paragraph 4.15(f).
Note 1: Regulation 4.22 deals with confidential information in submissions that the Minister discloses to the ACCC.
Note 2: Regulation 4.25 deals with confidential information in submissions that the ACCC discloses to the Minister.
4.24 Minister disagrees with claim that information is confidential
(1) If:
(a) a person gives a written submission to the Minister under this Division, in relation to a proposal to make, amend or revoke water market rules; and
(b) the person claims that the submission contains confidential information; and
(c) the Minister decides that the submission does not contain confidential information as claimed; and
(d) the Minister wishes to publish the submission under regulation 4.23;
then the Minister must give the person written notice of the Minister’s decision within 6 weeks of receiving the submission.
(2) The notice must include the following:
(a) a statement that the person may withdraw the claim of confidentiality by giving the Minister written notice to that effect;
(b) a statement that, if the person wishes to withdraw the claim, the person must do so within 21 days of receiving the Minister’s notice under subregulation (1);
(c) a statement that, if the person decides not to withdraw the claim the following applies:
(i) the Minister must return the information to which the claim relates to the person who provided it to the Minister;
(ii) the Minister must not publish the information;
(iii) the Minister must not have regard to the information when making, amending or revoking water market rules.
(3) If the person withdraws the claim, then the Minister may publish the entire submission.
(4) If the person does not withdraw the claim within 21 days of receiving the Minister’s notice under subregulation (1), then the Minister:
(a) must return the information to which the claim relates to the person; and
(b) must not publish the information; and
(c) must not have regard to the information when making, amending or revoking water market rules.
4.25 Minister may publish records provided by ACCC
The Minister may, at any time before or after making, amending or revoking water market rules, publish:
(a) a schedule provided to the Minister by the ACCC under paragraph 4.15(e); and
(b) any records of consultation that the ACCC provides to the Minister under this Division unless, under paragraph 4.15(h), the ACCC identifies the records as being records that the ACCC itself is not permitted to publish.
Subdivision 4.2.7—Failure to comply
4.26 Consequence of failure to comply with a requirement in this Division
A failure to comply with a requirement specified in this Division does not affect the validity or enforceability of the water market rules.
Part 5—Water Markets Intermediaries Code and trust accounting framework
Division 1—Water Markets Intermediaries Code
Subdivision A—Preliminary
5.01 Purpose of this Division
(1) For the purposes of subsection 100G(1) of the Act, this Division prescribes the Water Markets Intermediaries Code.
(2) For the purposes of subsections 100R(3) and 100V(2) and (3) of the Act, this Division also prescribes matters relating to the statutory trust accounting framework for eligible water markets intermediaries established by Division 5 of Part 5 of the Act.
Subdivision B—Regulation of the conduct of eligible water markets intermediaries towards participants and potential participants in the water market
5.02 Application of this Subdivision
(1) Subject to this regulation, this Subdivision applies in relation to an eligible water markets intermediary that provides, or proposes to provide, a water markets intermediary service to a participant or potential participant in the water market.
(2) Despite subregulation (1), this Subdivision does not apply in relation to a water markets intermediary service provided by a water market authority to approve, allow or register the trade or transfer of an eligible tradeable water right in exchange for a commission or fee.
(3) Despite subregulation (1), this Subdivision does not apply in relation to a water markets intermediary service provided by an irrigation infrastructure operator for the purpose of processing, on behalf of a member of the operator, the trade or transfer of an eligible tradeable water right between the member and a person who is not a member of the operator, in exchange for a commission or fee.
(4) Despite subregulation (1), this Subdivision applies in relation to a water markets intermediary service that involves the provision of a trading platform mentioned in paragraph (d) of the definition of eligible water markets intermediary in subsection 4(1) of the Act only if:
(a) the trading platform is an online‑enabled application, website or system; and
(b) the operator of the platform enables representations to be made on the platform that eligible tradeable water rights are available for trade or transfer; and
(c) the operator facilitates the trade or transfer of those rights in exchange for a commission or fee by doing one or more of the following:
(i) communicating the acceptance of offers or counter‑offers;
(ii) preparing contracts or other agreements;
(iii) arranging documents necessary for the trade or transfer;
(iv) submitting applications to water market authorities to approve, allow or register the trade or transfer.
(5) To avoid doubt, this Subdivision does not apply in relation to a water markets intermediary service provided in respect of eligible tradeable water rights that automatically transfer with land.
5.03 General obligations
Requirements in relation to client interests and instructions
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) provides a water markets intermediary service to a person (the client); and
(b) fails to comply with a requirement in subregulation (2), (3) or (4).
Civil penalty: 400 penalty units.
(2) In the course of providing the service, the intermediary must place the interests of the client before the interests of:
(a) the intermediary; or
(b) a related party of the intermediary.
(3) In the course of providing the service, the intermediary must represent the interests of the client diligently and with due care and skill.
(4) In the course of providing the service, the intermediary must act in accordance with the lawful instructions provided by the client.
Requirements in relation to confidential information
(5) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) provides a water markets intermediary service to a person (a client) or is engaged or instructed by a person (a proposed client) to provide a water markets intermediary service; and
(b) fails to comply with a requirement in subregulation (6).
Civil penalty: 400 penalty units.
(6) The intermediary must not use or disclose any confidential information obtained from the client or proposed client, or otherwise obtained in the course of its dealings with the client or proposed client in respect of the service, unless the use or disclosure of the information:
(a) is authorised by the client or proposed client; or
(b) if the intermediary reasonably believes that the information is relevant to a possible contravention of a provision of the Act or a legislative instrument made under the Act—is for the purpose of providing the information to an enforcement agency whose functions include the enforcement of the provision; or
(c) is otherwise required or authorised by law.
General requirements subject to contrary requirements in this Code
(7) A requirement in this regulation is subject to any contrary requirement in this Code.
5.04 Intermediary must deal in good faith
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) provides a water markets intermediary service to a person (a client) or is engaged or instructed by a person (a proposed client) to provide a water markets intermediary service; and
(b) fails to deal with the client or proposed client in good faith, within the meaning of the unwritten law from time to time.
Civil penalty: 400 penalty units.
(2) Without limiting the matters to which a court may have regard for the purpose of determining whether the intermediary deals with the client or proposed client in good faith, a court may have regard to the following matters:
(a) the extent to which the intermediary has acted honestly;
(b) the extent to which the intermediary has not acted arbitrarily, capriciously, unreasonably, recklessly or with ulterior motives;
(c) the nature of the intermediary’s relationship with the client or proposed client (including the extent to which the intermediary has conducted the relationship without duress);
(d) any other relevant matter.
5.05 How intermediary must deal with interests that conflict with the interests of clients
(1) An eligible water markets intermediary contravenes this subregulation if:
(a) the intermediary provides a water markets intermediary service to a person (a client) or is engaged or instructed by a person (a proposed client) to provide a water markets intermediary service; and
(b) the intermediary, or a related party of the intermediary:
(i) has an interest that conflicts with the interest of the client or proposed client in relation to the provision of the service; or
(ii) will have such an interest as a consequence of the provision of the service; and
(c) the intermediary fails to disclose the conflicting interest to the client or proposed client in accordance with the requirements in subregulation (3).
Civil penalty: 400 penalty units.
(2) Without limiting paragraph (1)(b), the intermediary or related party has an interest that conflicts with an interest of the client or proposed client if the intermediary or related party receives, or expects to receive, a commission, fee or other benefit from a person other than the client or proposed client in relation to the provision of the service.
Disclosure requirement
(3) For paragraph (1)(c), the disclosure of the conflict of interest must:
(a) be in writing; and
(b) specify the interest and the circumstances that give rise to the conflict; and
(c) be made:
(i) if the conflicting interest exists before the intermediary begins to provide the service—before the service is provided; or
(ii) otherwise—as soon as practicable after the intermediary first becomes aware of the conflicting interest; and
(d) request the client or proposed client to confirm, in writing, that the disclosure has been received.
Exceptions
(4) Paragraph (1)(c) does not apply in relation to a conflicting interest that a related party has, or will have, in the provision of the service if the intermediary does not know, or cannot be reasonably expected to know, that the related party has, or will have, the conflicting interest.
5.06 How intermediary must deal with material personal interests in eligible tradeable water rights
(1) An eligible water markets intermediary contravenes this subregulation if:
(a) the intermediary provides a water markets intermediary service to a person (a client) or is engaged or instructed by a person (a proposed client) to provide a water markets intermediary service; and
(b) the intermediary, or a related party of the intermediary:
(i) has a material personal interest in the eligible tradeable water right (the relevant eligible tradeable water right) in respect of which the service is, or is proposed to be, provided; or
(ii) will have such an interest as a consequence of the provision of the service; and
(c) the intermediary fails to comply with a requirement in:
(i) if the intermediary is an irrigation infrastructure operator—subregulation (2); or
(ii) otherwise—subregulation (3) or (5) (as applicable).
Civil penalty: 400 penalty units.
Requirements for irrigation infrastructure operators
(2) The intermediary:
(a) must not improperly use its status, power or authority to gain, or to seek to gain, an advantage for itself or for a related party in respect of the provision of the service; and
(b) must ensure that the related party does not improperly use its status, power or authority to gain, or to seek to gain, an advantage for itself or for the intermediary in respect of the provision of the service.
Requirements for intermediaries that are not irrigation infrastructure operators
(3) Unless the circumstances in paragraph (4)(a) or (b) apply, the intermediary:
(a) must not provide the service; and
(b) must notify the client or proposed client, in writing, that the obligations imposed on the intermediary by this Code in respect of the provision of water markets intermediary services prohibit the provision of the service; and
(c) must make the notification as soon as practicable after the intermediary is engaged or instructed by the proposed client to provide the service or, if the intermediary is not aware of the interest at that time, after the intermediary first becomes aware of the interest (which may be after the intermediary begins to provide the service).
(4) For subregulation (3), the circumstances are:
(a) that both of the following apply:
(i) the client or proposed client is a related party of the intermediary;
(ii) the intermediary is not providing, or proposing to provide, water markets intermediary services in relation to the relevant eligible tradeable water right to any person other than the client or proposed client; or
(b) that all of the following apply:
(i) the service involves the live‑matched trade or transfer of the relevant eligible tradeable water right;
(ii) the client or proposed client is a related party of the intermediary;
(iii) a related party of the intermediary has, or will have, a material personal interest in the relevant eligible tradeable water right;
(iv) the intermediary does not, or will not, have a material personal interest in the relevant eligible tradeable water right.
(5) If the circumstances mentioned in paragraph (4)(b) apply, the intermediary must ensure that the related party that has, or will have, a material personal interest in the relevant eligible tradeable water right does not improperly use its status, power or authority to gain, or to seek to gain, an advantage for itself or for the intermediary in respect of the provision of the service.
Exceptions
(6) Paragraph (1)(b) does not apply in relation to a material personal interest that a related party has, or will have, in the relevant eligible tradeable water right if the intermediary does not know, or cannot be reasonably expected to know, that the related party has, or will have, the material personal interest in the relevant eligible tradeable water right.
(7) Paragraph (2)(b) and subregulation (5) do not apply if the intermediary does not know, and cannot be reasonably expected to know, that the related party is improperly using its status, power or authority to gain, or to seek to gain, an advantage for itself or for the intermediary in respect of the provision of the service.
5.07 Intermediary must provide general information about services and obligations
(1) An eligible water markets intermediary contravenes this subregulation if:
(a) the intermediary provides a water markets intermediary service to a person (a client); and
(b) within a reasonable period before providing the service, the intermediary does not provide to the client, in writing, the information specified in subregulation (2).
Civil penalty: 200 penalty units.
(2) For paragraph (1)(b), the information is the following:
(a) the water markets intermediary services that the intermediary provides;
(b) the commission or fees generally charged by the intermediary to provide those services;
(c) the obligations the intermediary owes to the client under:
(i) Part 5 of the Act (including under this Code); and
(ii) the Australian Consumer Law (within the meaning of the Competition and Consumer Act 2010);
(d) copies of, or references to, the particular provisions of the Act, this instrument and the Australian Consumer Law that imposes the obligations mentioned in paragraph (c);
(e) if the intermediary provides a service that includes the transfer of a water allocation through an intervalley trade opening—the method the intermediary will use to successfully transfer the water allocation between clients (for example, in chronological order or on a pro rata basis);
(f) if the intermediary provides a service that requires eligible tradeable water rights to be held in a broking water account—how the intermediary will deal with eligible tradeable water rights that are not able to be transferred to a person who is lawfully entitled to receive them;
(g) if, within the previous 3 years, an enforcement action mentioned in subregulation (3) has occurred:
(i) what the enforcement action is; and
(ii) any outcomes achieved in respect of the enforcement action;
(h) a copy of the documented complaints‑handling process the intermediary is required to have under subregulation 5.09(3).
(3) For paragraph (2)(g), the enforcement actions are the following:
(a) the ACCC has issued a public warning notice under Division 6 of Part 5 of the Act about the conduct of the intermediary;
(b) an undertaking given by the intermediary in relation to a contravention of this Code, or Division 4 or 5 of Part 5 of the Act, has been accepted under section 163 of the Act;
(c) a court has found that the intermediary has contravened a provision of this Code, or of Division 4 or 5 of Part 5 of the Act.
(4) Subregulation (1) does not apply if the intermediary has provided the same information in writing to the client within the previous 12 months.
5.08 Intermediary must provide additional information about particular services
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) provides a water markets intermediary service to a person (the client) in exchange for a commission or fee; and
(b) has not provided to the client, in writing, the information specified in subregulation (2) in accordance with subregulation (4).
Civil penalty: 200 penalty units.
(2) For paragraph (1)(b), the information is the following:
(a) the kind of water markets intermediary service to be provided;
(b) the terms and conditions on which the service is to be provided;
(c) if the commission or fees to be charged by the intermediary to provide the service are different from the commission or fees generally charged by the intermediary—the commission or fees to be charged;
(d) if the service is to investigate the trading possibilities for eligible tradeable water rights:
(i) the eligible tradeable water rights in respect of which the service is to be provided; and
(ii) whether the service is in respect of offers to buy or sell eligible tradeable water rights; and
(iii) the volume, in megalitres, of the eligible tradeable water rights to be traded and whether that volume may be split; and
(iv) the price per megalitre, or the range of the price, of each such volume; and
(v) details of when or how the client’s instructions to provide the service expire or are rescinded; and
(vi) details of any other conditions applying to the service, including whether the provision of the service is exclusive or non‑exclusive;
(e) for a service other than a service mentioned in paragraph (d)—whether and, if so, why the client’s eligible tradeable water rights are required to be held in a broking water account maintained by the intermediary;
(f) if the intermediary has submitted an application to a water market authority to approve, allow or register the trade or transfer of an eligible tradeable water right:
(i) the outcome of the application; and
(ii) if the water market authority rejects, or delays the consideration of, the application—the reason for the rejection or delay.
(3) Paragraph (2)(d) does not apply to information that has been provided by the client, in writing, to the intermediary.
(4) The intermediary must provide the information to the client:
(a) for information mentioned in paragraphs (2)(a) to (e):
(i) before the intermediary begins to provide the service to the client; or
(ii) if the information changes, or first becomes known to the intermediary, after that time—as soon as practicable after the intermediary becomes aware of the new or changed information; and
(b) for information mentioned in paragraph (2)(f)—no later than 2 business days after the intermediary becomes aware of the outcome of the application, or of the rejection or delay of the consideration of the application.
5.09 Intermediary must deal with complaints
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) provides a water markets intermediary service to a person (a client) or is engaged or instructed by a person (a proposed client) to provide a water markets intermediary service; and
(b) receives a complaint from the client or proposed client in the course of its dealings with the client or proposed client in respect of the service; and
(c) fails to comply with a requirement in subregulation (2) or (3).
Civil penalty: 100 penalty units.
(2) The intermediary must:
(a) act in good faith in dealing with the complaint; and
(b) make a genuine attempt to resolve the complaint within 20 business days; and
(c) if the complaint is not received in writing—make a written record of the complaint; and
(d) within 2 business days of receiving the complaint, give to the client or proposed client:
(i) written confirmation that the complaint has been received; and
(ii) a copy of the record of the complaint made under paragraph (c) (if applicable); and
(iii) information about the process the intermediary will follow in dealing with the complaint; and
(e) within 10 business days of receiving the complaint, give to the client or proposed client a written response to the complaint that specifies the actions the intermediary proposes to take in seeking to resolve the complaint; and
(f) within 5 business days of completing the process for dealing with the complaint, give to the client or proposed client written notice of the outcome of that process.
(3) The intermediary must have a documented process for dealing with complaints that enables the intermediary to meet the requirements of subregulation (2).
5.10 Intermediary must have authority to trade or transfer eligible tradeable water rights
(1) An eligible water markets intermediary (other than an irrigation infrastructure operator) contravenes this subregulation if the intermediary:
(a) makes an application to a water market authority to approve, allow or register the trade or transfer of an eligible tradeable water right in the course of providing water markets intermediary services; and
(b) does not hold a written authority to make the application:
(i) from each person (an authorising person) who holds a legal or equitable interest in the eligible tradeable water right proposed by the application to be traded or transferred; and
(ii) that meets the requirements in subregulation (2).
Civil penalty: 400 penalty units.
(2) For subparagraph (1)(b)(ii), a written authority from an authorising person must:
(a) include the following:
(i) the name of the authorising person;
(ii) the name of the eligible water markets intermediary who is authorised by the authorising person in respect of the application;
(iii) the licence or account number of the water account (however described) in which the eligible tradeable water right is held;
(iv) the period in respect of which the written authority is valid (if applicable), which must not be longer than 3 years;
(v) the number of trades or transfers in respect of which the written authority is valid (if applicable);
(vi) if the authorising person is a corporation—an extract from a register maintained by the Australian Securities and Investment Commission or the Office of the Registrar of Indigenous Corporations (as applicable), for the corporation, that is less than 12 months old; and
(b) state how the authorising person can rescind the authority; and
(c) be signed by:
(i) the authorising person; or
(ii) a person (other than an eligible water markets intermediary) who is authorised by the authorising person, by a document that is registered with a water market authority, to sign the written authority; and
(d) if the authority is signed by a person mentioned in subparagraph (c)(ii), be accompanied by the document mentioned in that subparagraph.
5.11 Intermediary must have authority to act as an agent
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) acts as an agent on behalf of a person (the client) in the course of providing water markets intermediary services to the client; and
(b) does not hold a written authority from the client:
(i) to act as an agent of the client; and
(ii) that meets the requirements in subregulation (2).
Civil penalty: 400 penalty units.
(2) For subparagraph (1)(b)(ii), a written authority from a client must:
(a) include the following:
(i) the name of the intermediary who is to act as the agent of the client;
(ii) the period of time for which the authority is valid;
(iii) if the client is a corporation—an extract from a register maintained by the Australian Securities and Investment Commission or the Office of the Registrar of Indigenous Corporations (as applicable), for the corporation, that is less than 12 months old;
(iv) the terms of the arrangement to act as an agent, including the overall trading objective and the eligible tradeable water rights to be made available to achieve that objective;
(v) if the agent is to make applications on behalf of the client to water market authorities to approve, allow or register the trade or transfer of eligible tradeable water rights—explicit authority for the agent to make such applications; and
(b) state how the client can rescind the authority; and
(c) be signed by the client.
5.12 Intermediary must maintain broking water accounts
(1) An eligible water markets intermediary (other than an irrigation infrastructure operator) contravenes this subregulation if the intermediary:
(a) receives and holds eligible tradeable water rights on behalf of a person (the client) in the course of providing water markets intermediary services to the client; and
(b) does not maintain one or more broking water accounts for the purpose of holding eligible tradeable water rights on behalf of the client, or deal with such accounts, in accordance with the requirements in this regulation.
Civil penalty: 400 penalty units.
(2) As soon as practicable after receiving eligible tradeable water rights on behalf of the client, the intermediary must transfer the water rights into a broking water account (the broking water account) maintained by the intermediary for the purpose of holding the eligible tradeable water rights.
(3) The broking water account must be maintained with:
(a) an agency of a State; or
(b) an irrigation infrastructure operator.
(4) Within 3 months of the first day on which the obligation for the intermediary to maintain the broking water account arises, the intermediary must notify the ACCC, in writing, that the intermediary is maintaining the broking water account.
(5) Subject to subregulation (6), the intermediary must not:
(a) transfer eligible tradeable water rights into the broking water account unless the water rights are received from, or held on behalf of, the client; or
(b) transfer eligible tradeable water rights out of the broking water account unless the rights are being transferred:
(i) to a person who is lawfully entitled to receive them; and
(ii) to the nearest possible amount able to be transferred; or
(c) if the eligible tradeable water rights are not able to be transferred to a person who is lawfully entitled to receive them—transfer the rights out of the broking water account unless the transfer is in accordance with the information provided to the client under paragraph 5.07(2)(f).
(6) The intermediary may transfer eligible tradeable water rights from one broking water account maintained by the intermediary to another broking water account maintained by the intermediary.
5.13 Intermediary must prepare statements about broking water accounts
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) is required by regulation 5.12 to maintain a broking water account for the purpose of holding eligible tradeable water rights on behalf of a client; and
(b) does not, for each financial year of the intermediary, prepare a statement in relation to the broking water account in accordance with the requirements in subregulation (2).
Civil penalty: 400 penalty units.
(2) The statement must:
(a) be in writing; and
(b) be prepared within 3 months of the end of the financial year; and
(c) include the information and documents mentioned in subregulation (3); and
(d) not include information that is false or misleading in a material particular.
(3) For paragraph (2)(c), the information and documents are the following:
(a) the name and address of the intermediary;
(b) the financial year for which the statement is prepared;
(c) the name of the State agency or irrigation infrastructure operator with which the broking water account is maintained;
(d) the following information about the broking water account:
(i) the name of the account holder of the account;
(ii) the licence or account number of the account;
(iii) the opening and closing balance of the account at the start and end of the financial year, as recorded in the statement for the account issued by the State agency or irrigation infrastructure operator with which the account is maintained;
(e) a Schedule to the statement that includes details of the ledger prepared by the intermediary for the client in respect of the broking water account for the financial year, including the name of the client and the closing balance of the ledger at the end of the financial year;
(f) if eligible tradeable water rights held in the broking water account were not able to be transferred to a person who is lawfully entitled to receive them—whether those rights were dealt with in accordance with the information provided to the client mentioned in paragraph 5.07(2)(f);
(g) a Schedule to the statement that includes:
(i) a copy of the statement for the broking water account for the financial year issued by the State agency or irrigation infrastructure operator with which the account is maintained; or
(ii) a list of the transactions on the broking water account for the financial year issued by the agency or operator;
(h) if the broking water account was used during the financial year in respect of the transfer of a water allocation through an intervalley trade opening—a Schedule to the statement that explains whether the method used to transfer the water allocation was in accordance with the information provided to the client mentioned in paragraph 5.07(2)(e) and, if not, why that method was not used;
(i) a declaration by the intermediary that the information in the statement is true and correct.
5.14 Intermediary must hold professional indemnity insurance
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) provides a water markets intermediary service; and
(b) does not hold professional indemnity insurance that:
(i) covers the provision of the service; and
(ii) complies with the requirements in this regulation.
Civil penalty: 400 penalty units.
(2) Subject to subregulation (3), the insurance policy must provide for an insured amount:
(a) of at least $5 million for any one claim and $10 million in the annual aggregate; or
(b) both:
(i) of at least $5 million for any one claim and in the annual aggregate; and
(ii) that includes an automatic right of reinstatement of the annual aggregate.
(3) If the intermediary is an irrigation infrastructure operator, and the circumstance mentioned in subregulation (5) applies, the insurance policy must provide for an insured amount that is adequate and appropriate to cover the liabilities that may arise in providing the water markets intermediary services the intermediary provides.
(4) Without limiting subregulation (3), the following factors are relevant to whether an insured amount is adequate and appropriate to cover liabilities that may arise in providing water markets intermediary services:
(a) the kinds of water markets intermediary services the intermediary provides;
(b) the volume of eligible tradeable water rights the intermediary deals with in the course of providing those services;
(c) the variability of the price of eligible tradeable water rights between wet and dry years;
(d) the number and kind of clients of the intermediary;
(e) the number of employees of the intermediary.
(5) For subregulation (3), the circumstance is that over the previous 3 financial years for the intermediary, the average yearly sum of the value of all trades and transfers of eligible tradeable water rights for which water markets intermediary services have been provided by the intermediary is less than $5 million (excluding the value of commissions and fees received in exchange for providing water markets intermediary services).
5.15 Intermediary must comply with record‑keeping requirements
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) provides a water markets intermediary service; and
(b) fails to keep the records mentioned in subregulation (2) for the period mentioned in subregulation (3).
Civil penalty: 200 penalty units.
(2) The records that must be kept are the following:
(a) the statements about broking water accounts that are required to be prepared in accordance with regulation 5.13;
(b) the certificates of currency and insurance policies for the professional indemnity insurance that is required to be held under regulation 5.14;
(c) the trust account statements and trust account audit reports that are required to be prepared in accordance with section 100V of the Act.
(3) The period a record must be kept is the 6‑year period beginning on the day the record was given to, or prepared by, the intermediary.
5.16 Intermediary must comply with requirements for holding client and proposed client records
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) provides a water markets intermediary service to a person (the client) or is engaged or instructed by a person (the proposed client) to provide a water markets intermediary service; and
(b) fails to keep the following records for the period mentioned in subregulation (5):
(i) the records mentioned in subregulation (2) relating to the client;
(ii) the records mentioned in subregulation (4) relating to the proposed client.
Civil penalty: 200 penalty units.
(2) The records that must be kept in relation to the client are the following:
(a) details of the client, including the client’s name, address, phone number and email address;
(b) records of instructions received from the client;
(c) disclosures of conflicting interests provided to the client under regulation 5.05, and any written confirmations from the client of the receipt of such disclosures;
(d) notifications of material personal interests in eligible tradeable water rights provided to the client under paragraph 5.06(3)(b);
(e) information provided to the client under regulations 5.07 and 5.08;
(f) if the client has made a complaint to the intermediary about the water markets intermediary service provided:
(i) the complaint, either as received in writing from the client or as recorded by the intermediary under paragraph 5.09(2)(c); and
(ii) the responses to, or notifications of the outcomes of, the complaint provided to the client under regulation 5.09; and
(iii) the documented process the intermediary is required to have under subregulation 5.09(3) for dealing with the complaint, as existing at the time the complaint is received;
(g) written authorities received from the client under regulation 5.11;
(h) records of notifications to the ACCC under subregulation 5.12(4) in respect of broking water accounts to which the intermediary is to transfer any eligible tradeable water rights held on behalf of the client;
(i) records of trust account ledgers maintained in accordance with regulation 5.18 on behalf of the client;
(j) records of broking water account ledgers maintained in accordance with regulation 5.19 on behalf of the client;
(k) requests by the client for statements from the ledgers, as mentioned in subparagraphs 5.18(1)(b)(ii) and 5.19(1)(b)(ii), and copies of statements provided to the client in response to such requests;
(l) records of buy or sell offers communicated to or on behalf of the client (other than offers listed directly by the client on a trading platform or water exchange), including records of the following in respect of such trades:
(i) the eligible tradeable water rights in respect of which the offer is made;
(ii) whether the offer is an offer to buy or to sell those rights;
(iii) the volume, in megalitres, of those rights and whether the volume may be split;
(iv) the price per megalitre, or the range of the price, of each such volume;
(v) the conditions (if any) attaching to the offer;
(vi) the date and time the offer is communicated;
(vii) the name of the person who made the offer;
(viii) the name of the person to whom the offer was communicated;
(m) records of matched trades relevant to the client, including records of the volumes, zones, prices, strike dates and names of buyers and sellers of such trades;
(n) the following records in relation to each application submitted to a water market authority to approve, allow or register the trade or transfer of eligible tradeable water rights on behalf of the client:
(i) the written authority from the client authorising the intermediary to submit the application, as mentioned in regulation 5.10;
(ii) if a written authority is signed by a person mentioned in subparagraph 5.10(2)(c)(ii)—the document mentioned in that subparagraph;
(iii) the reference number provided by the water market authority that is relevant to the application;
(iv) the information the intermediary is required to provide to the client under regulation 5.08 about the outcome of the application;
(v) the date on which the application is approved or rejected;
(o) records of receipts, deposits, payments and invoices relevant to the water markets intermediary service provided to the client.
(3) Paragraph (2)(l) does not apply to a record that the intermediary is required to give to the Bureau under Part 7A of the Act.
(4) The records that must be kept in relation to the proposed client are the following:
(a) details of the proposed client, including the proposed client’s name, address, phone number and email address;
(b) records of instructions received from the proposed client;
(c) disclosures of conflicting interests provided to the proposed client under regulation 5.05, and any written confirmations from the proposed client of the receipt of such disclosures;
(d) notifications of material personal interests in eligible tradeable water rights provided to the proposed client under paragraph 5.06(3)(b);
(e) if the proposed client has made a complaint to the intermediary in respect of the water markets intermediary service:
(i) the complaint, either as received in writing from the proposed client or as recorded by the intermediary under paragraph 5.09(2)(c); and
(ii) the responses to, or notifications of the outcomes of, the complaint provided to the proposed client under regulation 5.09; and
(iii) the documented process the intermediary is required to have under subregulation 5.09(3) for dealing with the complaint, as existing at the time the complaint is received.
(5) The period a record must be kept is the 6‑year period beginning on the day the record was given to, or prepared by, the intermediary.
5.17 Intermediary must comply with requirements for holding trust account records
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) is required to maintain a trust account in accordance with Division 5 of Part 5 of the Act; and
(b) fails to keep the records mentioned in subregulation (2) for the period mentioned in subregulation (3).
Civil penalty: 200 penalty units.
(2) The records that must be kept are the following:
(a) records of notifications to the ACCC under paragraph 100S(1)(b) of the Act in respect of the trust account;
(b) records of receipts, deposits, payments and invoices relating to any money paid into, or withdrawn from, the trust account;
(c) Australian ADI statements for the trust account.
(3) The period a record must be kept is the 6‑year period beginning on the day the record was given to, or prepared by, the intermediary.
5.18 Intermediary must maintain client ledgers for trust accounts
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) is required to maintain a trust account in accordance with section 100R of the Act in respect of money received on behalf of a person (the client) in the course of providing water markets intermediary services during a financial year for the intermediary; and
(b) either:
(i) does not maintain and keep a ledger in respect of the money held in the trust account on behalf of the client during the financial year in accordance with the requirements in subregulation (2); or
(ii) does not give the client a statement from the ledger within 5 business days of receiving a request by the client for the statement.
Civil penalty: 200 penalty units.
(2) The ledger must include the following information and records:
(a) the name of the client;
(b) the name and address of the intermediary;
(c) the financial year of the intermediary in respect of which the ledger is prepared;
(d) the name of the Australian ADI that maintains the trust account;
(e) the following information about the trust account:
(i) the name of the account;
(ii) the BSB and account number of the account;
(f) the date on which any money held in the trust account on behalf of the client is transferred into or out of the account;
(g) the following details in relation to any such transfer:
(i) the reason for the transfer;
(ii) the amount of money transferred;
(iii) the name of the person from, or to, whom (as applicable) the money is transferred;
(iv) the reference numbers that are relevant to the transfer;
(h) a running balance for the trust account.
5.19 Intermediary must maintain client ledgers for broking water accounts
(1) An eligible water markets intermediary contravenes this subregulation if the intermediary:
(a) is required to maintain a broking water account in accordance with regulation 5.12 for the purpose of holding eligible tradeable water rights on behalf of a client; and
(b) either:
(i) does not maintain and keep a ledger in respect of the water rights held in the broking water account on behalf of the client during the financial year for the intermediary in accordance with the requirements in subregulation (2); or
(ii) does not give the client a statement from the ledger within 5 business days of receiving a request by the client for the statement.
Civil penalty: 200 penalty units.
(2) The ledger must include the following information:
(a) the name of the client;
(b) the financial year of the intermediary in respect of which the ledger is prepared;
(c) the licence or account number of the broking water account;
(d) the date on which any eligible tradeable water rights held in the broking water account on behalf of the client are traded or transferred into or out of the account;
(e) the following details in relation to any such trade or transfer:
(i) the reason for the trade or transfer;
(ii) the volume, in megalitres, of the water rights involved in the trade or transfer;
(iii) the name of the person from, or to, whom (as applicable) the water rights are traded or transferred;
(iv) the reference numbers provided by a water market authority that are relevant to the trade or transfer;
(f) a running balance for the broking water account.
5.20 Exemption by Minister
(1) The Minister may, by legislative instrument, exempt an eligible water markets intermediary from this Code or specified provisions of this Code.
(2) Without limiting the matters the Minister may consider in deciding whether to make an exemption, the Minister must consider:
(a) whether other requirements regulate the conduct of the class of intermediaries that would be the subject of the exemption towards participants and potential participants in the water market; and
(b) the nature of any such requirements, including:
(i) whether the requirements are imposed under Commonwealth, State or Territory laws; and
(ii) whether the requirements are standards that a member of a profession must comply with; and
(c) the level of risk to participants and potential participants in the water market if the exemption were made.
5.21 Review of operation of this Code
(1) The Secretary must cause a review to be conducted in relation to the Code.
Scope of review
(2) The review must assess the operation of the Code and the activities under, or in relation to, the Code during the 3‑year period commencing on 1 July 2025.
Minister to be given report of review
(3) The persons conducting the review must give the Minister a written report of the review no later than 31 December 2028.
Minister to table copy of report of review
(4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
(5) The Minister may redact information from the report if the Minister is satisfied that:
(a) the information is personal information; or
(b) release of the information would, or could reasonably be expected to:
(i) divulge information that is confidential or commercially sensitive; or
(ii) cause damage to the security, defence or international relations of the Commonwealth; or
(iii) cause damage to relations between the Commonwealth and a State or Territory.
Subdivision C—Statutory trust accounting framework for eligible water markets intermediaries
5.22 Designation of trust accounts
(1) For the purposes of subsection 100R(3) of the Act, this regulation specifies the manner in which a trust account maintained by an eligible water markets intermediary must be designated.
(2) The name of the trust account must include:
(a) either:
(i) the legal name of the intermediary; or
(ii) subject to subregulation (3), a registered business name of the intermediary; and
(b) either the words “water market trust account” or “water markets trust account”.
(3) Subparagraph (2)(a)(ii) does not apply in relation to a registered business name of the intermediary if:
(a) the registered business name is not used by the intermediary in connection with the provision by the intermediary of water markets intermediary services; or
(b) the Australian ADI that maintains the trust account does not permit the name of the account to include the registered business name.
5.23 Trust account statements—information and matters
(1) For the purposes of paragraph 100V(2)(b) of the Act, this regulation specifies the information and matters that must be contained in a trust account statement prepared in relation to a trust account maintained by an eligible water markets intermediary under section 100R of the Act.
(2) The information and matters are the following:
(a) the following information about the intermediary:
(i) the legal name of the intermediary;
(ii) the registered business name, ABN or ACN (as applicable) of the intermediary;
(iii) the address of the principal place of business of the intermediary;
(iv) the address of the registered office of the intermediary, if different from the principal place of business;
(v) the name, phone number and email address of the contact person for the intermediary;
(b) the financial year of the intermediary in respect of which the trust account statement is prepared;
(c) the name of the Australian ADI that maintains the trust account;
(d) the following information about the trust account:
(i) the name of the account;
(ii) if the intermediary is a partnership, trust or unincorporated association—the account holder of the account;
(iii) the BSB and account number of the account;
(iv) the opening balance of the account at the start of the financial year, as recorded on the Australian ADI statement for the account;
(v) the closing balance of the account at the end of the financial year, as recorded on the Australian ADI statement for the account;
(vi) whether any adjustments to the account were made during the financial year;
(vii) the reconciled balance of the account at the end of the financial year, in accordance with the Australian ADI statement for the account;
(viii) the total of the balances of all ledgers (the client ledgers) maintained and kept by the intermediary in accordance with the requirements in regulation 5.18 for the financial year in respect of the account;
(ix) whether there is a difference between the balances of the account under subparagraphs (vii) and (viii);
(x) whether the trust account is overdrawn, in accordance with the Australian ADI statement for the trust account or the client ledgers;
(e) a Schedule to the statement that includes the details of any adjustments to the trust account during the financial year;
(f) a Schedule to the statement that includes a list of the names of each person for whom the intermediary has prepared a client ledger for the financial year in respect of the trust account, and the closing balance of each such ledger at the end of the financial year;
(g) if there is a difference between the balances of the trust account, as mentioned in subparagraph (d)(ix)—a Schedule to the trust account statement that includes an explanation for the difference;
(h) if the trust account is overdrawn, as mentioned in subparagraph (d)(x)—a Schedule to the trust account statement that includes details and an explanation of the overdraw;
(i) if the intermediary is a company—an extract from a register maintained by the Australian Securities and Investments Commission or the Office of the Registrar of Indigenous Corporations (as applicable), for the company, that is less than 12 months old;
(j) if the intermediary is a partnership, trust or unincorporated association—a copy of a current document that records the key individuals and the constituent documents for the partnership, trust or association;
(k) a signed and dated declaration by the intermediary that includes:
(i) a statement that the information in the trust account statement is true and correct; and
(ii) details of the signatory’s name and capacity to make the declaration.
(3) If the Australian ADI maintains the trust account in separate branches, different trust account statements may be prepared in relation to the trust account maintained in the separate branches.
5.24 Trust account audit reports—information and matters
(1) For the purposes of paragraph 100V(2)(b) of the Act, this regulation specifies the information and matters that must be contained in a trust account audit report prepared by an auditor for a financial year in relation to the trust accounts maintained by an eligible water markets intermediary.
(2) The information and matters are the following:
(a) the following information about the intermediary:
(i) the legal name of the intermediary;
(ii) the registered business name, ABN or ACN (as applicable) of the intermediary;
(iii) the address of the principal place of business of the intermediary;
(iv) the address of the registered office of the intermediary, if different from the principal place of business;
(v) the name, phone number and email address of the contact person for the intermediary;
(b) the financial year of the intermediary in respect of which the report is prepared;
(c) the following information about each trust account:
(i) the name of the trust account;
(ii) if the intermediary is a partnership, trust or unincorporated association—the account holder of the trust account;
(iii) the BSB and account number of the trust account;
(iv) the name of the Australian ADI that maintains the trust account;
(v) any information that has not been included in the trust account statement for the financial year in respect of the trust account, but that the auditor considers should be included in the trust account audit report;
(d) the following information about the auditor:
(i) the legal name, phone number and email address of the auditor;
(ii) the licence number of the auditor;
(e) a signed statement by the auditor about the following matters:
(i) whether the auditor received all necessary financial records, information and explanations from the intermediary;
(ii) whether, in the opinion of the auditor, the trust accounts and the financial records of the intermediary for the financial year have been maintained and kept in accordance with the requirements of Part 5 of the Act and Part 5 of this instrument;
(iii) whether, in the opinion of the auditor, each trust account statement prepared in relation to a trust account for the financial year provides a true and fair view of the transactions recorded and the balance of the trust account at the end of the financial year, and has been prepared in all material respects in accordance with the requirements of Part 5 of the Act and Part 5 of this instrument;
(iv) whether the auditor has conducted the audit in accordance with the Australian Auditing Standards issued or adopted by the Auditing and Assurance Standards Board, as existing from time to time;
(v) how the auditor meets the eligibility requirements mentioned in regulation 5.25.
5.25 Trust account audit reports—eligibility requirements for auditors
(1) For the purposes of paragraph 100V(3)(a) of the Act, this regulation specifies the eligibility requirements a person who prepares a trust account audit report for an eligible water markets intermediary must comply with.
(2) The person must be:
(a) a member of CPA Australia, and hold a current Public Practice Certificate issued by that body; or
(b) a member of Chartered Accountants Australia and New Zealand, and hold a current Certificate of Public Practice issued by that body; or
(c) a member of the Institute of Public Accountants, and hold a current Professional Practice Certificate issued by that body; or
(d) a registered company auditor (within the meaning of the Corporations Act 2001); or
(e) an authorised audit company (within the meaning of the Corporations Act 2001).
(3) The person must not be any of the following:
(a) a related party of the intermediary;
(b) an employee, director or partner of an entity that has, or has had in the previous 3 years, a contractual relationship with the intermediary, other than in relation to the provision of auditing services.
Division 2—Exceptions to the application of the statutory trust accounting framework
5.26 Purpose of this Division
For the purposes of section 100Q of the Act, this Division makes provision for and in relation to exceptions to the application of the statutory trust accounting framework for eligible water markets intermediaries.
5.27 Exception to the application of the statutory trust accounting framework
For the purposes of paragraph 100Q(1)(c) of the Act, Division 5 of Part 5 of the Act does not apply to an eligible water markets intermediary included in the class of eligible water markets intermediaries mentioned in regulation 5.28 during a period when the intermediary maintains a trust account in accordance with a law of a State or Territory mentioned in regulation 5.29.
5.28 Specified class of eligible water market intermediaries
(1) For the purposes of paragraph 100Q(1)(c) of the Act, the specified class of eligible water market intermediaries is the class consisting of intermediaries that are each covered by subregulations (2) and (3).
(2) An intermediary is covered by this subregulation if:
(a) the intermediary is enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory; or
(b) the intermediary is licensed or registered under a State or Territory law as a real estate agent or conveyancer.
(3) An intermediary is covered by this subregulation if, during the period when the intermediary maintains a trust account in accordance with a law of a State or Territory mentioned in regulation 5.29, the intermediary is required by a law of the State or Territory to pay to the credit of the trust account any money received on behalf of another person in the course of providing water markets intermediary services.
5.29 Prescribed State and Territory laws
For the purposes of paragraph 100Q(1)(b) of the Act, the following State and Territory laws are prescribed:
(a) the Conveyancers Licensing Act 2003 (NSW);
(b) the Conveyancers Licensing Regulation 2021 (NSW);
(c) the Legal Profession Uniform General Rules 2015 (NSW);
(d) the Legal Profession Uniform Law (NSW);
(e) the Legal Profession Uniform Law Application Act 2014 (NSW);
(f) the Legal Profession Uniform Law Application Regulation 2015 (NSW);
(g) the Property and Stock Agents Act 2002 (NSW);
(h) the Property and Stock Agents Regulation 2022 (NSW);
(i) the Conveyancers Act 2006 (Vic.);
(j) the Conveyancers (Professional Conduct) Regulations 2018 (Vic.);
(k) the Estate Agents Act 1980 (Vic.);
(l) the Legal Profession Uniform Law Application Act 2014 (Vic.);
(m) the Legal Profession Uniform Law Application Regulations 2015 (Vic.);
(n) the Agents Financial Administration Act 2014 (Qld);
(o) the Legal Profession Act 2007 (Qld);
(p) the Legal Profession Regulation 2017 (Qld);
(q) the Property Occupations Act 2014 (Qld);
(r) the Conveyancers Act 1994 (SA);
(s) the Land Agents Act 1994 (SA);
(t) the Land Agents Regulations 2010 (SA);
(u) the Land and Business (Sale and Conveyancing) Act 1994 (SA);
(v) the Land and Business (Sale and Conveyancing) Regulations 2010 (SA);
(w) the Legal Practitioners Act 1981 (SA);
(x) the Legal Practitioners Regulations 2014 (SA);
(y) the Agents Act 2003 (ACT);
(z) the Legal Profession Act 2006 (ACT);
(za) the Legal Profession Regulation 2007 (ACT).
5.30 Matters Minister must have regard to before State or Territory laws are prescribed
For the purposes of subsection 100Q(3) of the Act, the following matters are prescribed for the purpose of the Minister considering whether a statutory trust accounting scheme (the scheme) of a law of a State or Territory is equivalent in substance to the statutory trust accounting framework (the framework) established under Division 5 of Part 5 of the Act:
(a) whether the scheme includes audit requirements that are equivalent in substance to the auditing requirements included in the framework;
(b) whether the scheme includes external examination requirements that are equivalent in substance to the external examination requirements included in the framework;
(c) whether the scheme includes requirements in relation to accounting records and practices that are equivalent in substance to the requirements in relation to accounting records and practices included in the framework;
(d) whether the scheme includes obligations in relation to the deposit and receipt of trust funds that are equivalent in substance to the obligations in relation to the deposit and receipt of trust funds included in the framework;
(e) whether the adequacy of the protection of trust monies provided by the scheme is equivalent in substance to the adequacy of the protection of trust monies provided under the framework;
(f) whether the capacity for the scheme to apply to monies held by eligible water market intermediaries on behalf of other persons in the course of providing intermediary water market services is equivalent in substance to the capacity for the framework to apply to such monies;
(g) whether the consequences for contravening the scheme are equivalent in substance to the consequences for contravening the framework.
Part 7—Water information
Division 7.1—Purposes, persons and water information
7.01 Purposes of Part
For section 126 of the Act, this Part specifies:
(a) the persons, or classes of persons, who must give a copy of water information to the Bureau; and
(b) the water information that must be given; and
(c) the time within which the copy must be given; and
(d) the form and manner in which the water information contained in the copy must be given.
Note: Under subsection 126(1) of the Act, a person is required to give a copy of water information to the Bureau only if it is in the person’s possession, custody or control.
7.02 Persons to give water information to Bureau
This Part applies to the following persons:
(a) a Category A person;
(b) a Category B person;
(c) a Category C person;
(d) a Category D person;
(e) a Category E person;
(f) a Category F person;
(g) a Category G person;
(h) a Category H person;
(j) a Category K person;
(k) a Category L person;
(l) a Category M person.
7.03 Categories and subcategories of water information
(1) The water information that must be given to the Bureau under Division 7.2 is water information of a kind described in the categories specified in the table in subregulation (2), subject to subregulations (3) to (6).
(2) The water information in a category in the table is made up of the water information in the subcategories specified for the category, which are described in Schedule 3.
Category number
Description of category
Subcategories in category
1
Surface water resource information
1a–1b in Part 2 of Schedule 3
2
Ground water resource information
2a‑2e in Part 3 of Schedule 3
3
Water storage information
3a–3f in Part 4 of Schedule 3
4
Meteorological information
4a–4j in Part 5 of Schedule 3
5
Water use information
5a‑5h in Part 6 of Schedule 3
6
Information about water rights, allocations and trades
6a–6g in Part 7 of Schedule 3
7
Information about urban water management
7a‑7d in Part 8 of Schedule 3
8
Information about water restrictions
8a in Part 9 of Schedule 3
9
Water quality information
9a–9h in Part 10 of Schedule 3
11
Water information for flood warning purposes
11a–11c in Part 11 of Schedule 3
Information that is not water information
(3) The categories in subregulation (1) do not include water information:
(a) held in a form that is not an electronic format; or
(b) publicly available on the Bureau’s website; or
(c) collected from a single site for up to 12 continuous weeks; or
(d) collected solely in order to fulfil a contractual arrangement with a person not specified in regulation 7.02.
(4) The categories in subregulation (1) also do not include water information in the possession, custody or control of a person specified in regulation 7.02 who:
(a) is required to give a copy of the water information to the Bureau under Division 7.2; and
(b) reasonably believes that the water information is already in the Bureau’s possession; and
(c) has notified the Bureau, in writing, of the decision not to provide the information because of that belief.
(5) The categories in subregulation (1) also do not include water information that is:
(a) collected solely for a project which the person expects to be of up to 12 months duration; and
(b) in the possession, custody or control of any of the following persons:
(i) a Category C person;
(ii) a Category D person;
(iii) a Category E person;
(iv) a Category F person;
(v) a Category G person;
(vi) a Category H person;
(vii) a Category L person;
(viii) a Category M person.
(6) However, for water information in subcategories 2d and 2e, paragraphs (3)(b) and (c) and subregulation (4) do not apply.
Division 7.2—Giving water information to Bureau
7.04 Initial obligation to give water information held during grace period
(1) This regulation applies to a person if:
(a) on or after the commencement of this regulation, the person is specified as a person in a category (the new category) mentioned in an item of the table; and
(b) during the grace period for the person in respect of the new category, the person has in the person’s possession, custody or control water information in a subcategory that:
(i) is specified in the item; and
(ii) has been entered into a data management system.
Item
Category of persons
Subcategories of water information
1
A and B
1a, 1b, 2a, 2b, 3e, 3f, 4a to 4j, 6a to 6g, 8a and 9a to 9h
2
C
1a, 1b, 3a to 3da, 3f and 4a to 4j
3
D
3a to 3da and 3f
4
E
6b to 6d
5
F
1a, 1b, 2a, 2b, 3e, 3f, 4a to 4j, 8a and 9a to 9h
6
G
1a, 1b, 2a, 2b, 4a to 4j, 9a to 9g and 9h
7
L
1a, 1b, 2a, 2b, 3e, 3f, 4a to 4j, 8a and 9a to 9h
(1A) The grace period for the person in respect of the new category is the period:
(a) beginning on the day the person is specified in the new category; and
(b) ending 3 months after that day.
(1B) However, subregulation (1) does not apply to a subcategory of water information if, immediately before the grace period for the person in respect of the new category, the person:
(a) was specified as a person in another category; and
(b) was required to give water information in that subcategory as a result of being specified as a person in the other category.
(2) The person must give a copy of the water information to the Bureau by midday of the 14th day after the grace period for the person ends.
(3) However, if:
(a) the person is a Category C person; and
(b) the water information is collected from a site listed in the document titled Commercially Sensitive Sites (see regulation 1.06);
the person must give a copy of the water information, expressed as mean daily values, to the Bureau by midday of the day 2 months after the grace period for the person ends.
Information amended during grace period
(4) If:
(a) a person has given a copy of water information to the Bureau under this regulation; and
(b) the person amends the water information during the grace period for the person;
the person must give a copy of the amended water information to the Bureau by midday of the 14th day after the grace period ends.
How information is to be given
(5) A person must give a copy of water information under this regulation to the Bureau:
(a) in the form of a CD, DVD or external hard drive; or
(b) by way of the Internet using FTP or web services.
(6) However, information in subcategory 8a may be given to the Bureau under this regulation in an email sent to the email address, if any, specified on the Bureau’s website as being for this purpose.
7.05 Initial obligation to give category 5 and category 7 water information
(1) This regulation applies to a person if:
(a) the person starts (at the start time) in a particular year (the initial year) to be specified in a category of persons that is required to give water information in category 5 or category 7 (the new category); and
(b) immediately before the start time, the person was not required to give water information in the new category; and
(c) the person has in the person’s possession, custody or control water information in the new category that relates to the initial year (whether the information relates to times before or after the start time); and
(d) that information has been entered into a data management system:
(i) during the initial year (whether before or after the start time); or
(ii) during the period beginning on the day after the end of the initial year and ending at the time the information is to be given to the Bureau.
Note 1: References to a year in these Regulations are to a financial year, starting on 1 July. See regulation 1.04 and the definition of financial year in section 2B of the Acts Interpretation Act 1901, as applied by section 13 of the Legislation Act 2003.
Note 2: Water information in category 5 and category 7 is required to be given yearly (see regulation 7.06 and the relevant Parts of Schedule 2).
When category 5 and category 7 water information for the initial year is to be given
(2) The person must give a copy of the water information to the Bureau, in the next year following the initial year, by the time provided under subregulation 7.07(2) in relation to persons in that category for that water information.
How water information is to be given
(3) A person must give a copy of water information under this regulation to the Bureau:
(a) in a form approved by the Director of Meteorology for this subregulation; and
(b) for water information in category 5—by way of the internet, including by email or a database application; and
(c) for water information in category 7—by way of the internet using a database application.
7.06 Continuing obligation to give water information
(1) This regulation applies to a person in relation to water information if:
(a) a Part of Schedule 2 applies to the person; and
(b) neither regulation 7.04 or 7.05 apply in relation to the water information.
(2) If:
(a) the person has in the person’s possession, custody or control water information in any of the subcategories that are specified in an item in that Part; and
(b) the water information has been entered into a data management system (unless the water information is subcategory 6d or 8a water information);
the person must give a copy of the water information to the Bureau within the time specified in the item.
(3) However, if:
(a) a person is a Category C person; and
(b) the water information is collected from a site listed in the document titled Commercially Sensitive Sites (see regulation 1.06);
the person must give a copy of the water information, expressed as mean daily values, to the Bureau by midday of the day 2 months after the information was entered onto the data management system.
Amended information
(4) If a person amends water information that is entered into a data management system and given to the Bureau under this regulation or regulation 7.05, the person must give a copy of the amended information to the Bureau:
(a) if the person is in category L and the information is in Category 7—within 1 month after the time (the amendment time) the amendment of the water information is entered into the system; or
(b) in any other case—within the time that would be specified for the water information in the item in the Part of Schedule 2 that applies to the person if the water information, as amended, were entered into the system at the amendment time.
Note: See also regulation 7.07 for the time when water information must be given to the Bureau.
How information is to be given
(5) A person must give a copy of water information under this regulation to the Bureau:
(a) in a form approved by the Director of Meteorology for this subregulation; and
(b) for water information in category 5—by way of the internet, including by email or a database application; and
(c) for water information in category 7—by way of the internet using a database application; and
(d) for water information in any other category—by way of the internet using FTP or web services.
(6) Subcategory 6d information may be given to the Bureau by way of an email sent to the email address, if any, specified on the Bureau’s website as being for this purpose.
(7) The Director must ensure that approved forms are publicly available.
7.07 When information is to be given to Bureau
Non‑yearly requirements
(1) If the time for giving water information to the Bureau is a time specified in column 2 of an item of the table, the person must give the water information to the Bureau by the time specified in column 3 of the item.
Item
Time for giving information
When information is to be given to Bureau
1
Hourly
Five minutes after the end of the hour during which the information was entered into a data management system
2
Daily
Midday on the next day following the day during which the information was entered into a data management system
3
Weekly
Midday on the first day of the next week following the week during which the information was entered into a data management system
4
Calendar monthly
Midday on the second day of the next calendar month following the calendar month during which the information was entered into a data management system
Yearly requirements
(2) The following table applies if:
(a) the time for giving particular water information is yearly; and
(b) for a person in Category K—the water information the person is required to give was entered into a data management system before the time the information is to be given to the Bureau in relation to a particular year; and
(c) for a person in any other category—the water information the person is required to give in relation to a particular year was entered into a data management system:
(i) during the particular year; or
(ii) during the period beginning on the day after the end of the particular year and ending at the time the information is to be given to the Bureau.
<table cellspacing="0" cellpadding="0" style="width:414.8pt; margin-left:0.25pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:404pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Yearly requirements</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Item</span></p></td><td style="width:59.6pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>If the person is in this category …</span></p></td><td style="width:297.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>the person must give the water information to the Bureau by the following time in the next year following the particular year …</span></p></td></tr></thead><tbody><tr><td style="width:24.9pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:59.6pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A</span></p></td><td style="width:297.9pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tablea"><span>(a) for category 5 water information—the end of 31</span><span> </span><span>October;</span></p><p class="Tablea"><span>(b) for any other water information—midday on 20</span><span> </span><span>July.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:59.6pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>B, C or D</span></p></td><td style="width:297.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>midday on 20</span><span> </span><span>July.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:59.6pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>E</span></p></td><td style="width:297.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>the end of 31</span><span> </span><span>October.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>4</span></p></td><td style="width:59.6pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>F</span></p></td><td style="width:297.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tablea"><span>(a) for category 7 water information—the end of 31</span><span> </span><span>October;</span></p><p class="Tabletext"><span>(b) for any other water information—the end of 31</span><span> </span><span>August.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>5</span></p></td><td style="width:59.6pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>G</span></p></td><td style="width:297.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>midday on 20</span><span> </span><span>July.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>6</span></p></td><td style="width:59.6pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>K</span></p></td><td style="width:297.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>the end of 30</span><span> </span><span>September.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>7</span></p></td><td style="width:59.6pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>L</span></p></td><td style="width:297.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tablea"><span>(a) for category 7 water information—the end of 31</span><span> </span><span>October;</span></p><p class="Tabletext"><span>(b) for any other water information—the end of 31</span><span> </span><span>August.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>8</span></p></td><td style="width:59.6pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>M</span></p></td><td style="width:297.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tablea"><span>the end of 31</span><span> </span><span>October.</span></p></td></tr></tbody></table>
Note: References to a year in these Regulations are to a financial year, starting on 1 July. See regulation 1.04 and the definition of financial year in section 2B of the Acts Interpretation Act 1901, as applied by section 13 of the Legislation Act 2003.
7.08 Water information collected during a project of up to 48 months duration
(1) This regulation applies to a person if:
(a) the person collects water information solely for the purpose of a project that the person expects to be of up to 48 months duration; and
(b) the water information is entered into a data management system; and
(c) the water information is not category 11 water information.
(2) The person is not required to give a copy of the water information to the Bureau under regulation 7.06.
(3) The person must give to the Bureau a copy of the water information that was collected:
(a) for a person to whom a grace period did not apply—during each full year for the duration of the project; and
(b) for a person to whom a grace period applied—during each full year that begins after the grace period for the person has ended, for the duration of the project; and
(c) during the period that starts immediately after the end of the last full year and ending on the last day of the project.
When information is to be given
(4) The times for giving water information to the Bureau in an item in a Part of Schedule 2 do not apply.
(5) The person must give a copy of the water information to the Bureau by 3 calendar months after the end of the year to which the information relates.
How information is to be given
(6) A person must give a copy of water information under this regulation to the Bureau:
(a) in the form of a CD, DVD or external hard drive; or
(b) by way of the Internet using FTP or web services.
7.09 Application to first information period after grace period ends or Part commences
(1) If a grace period for a person ends after the start of a week (the first week):
(a) item 3 of the table in subregulation 7.07(1) does not apply to the first week; and
(b) item 3 of the table in subregulation 7.07(1) applies to the next week as if the next week also included the period from the end of the grace period to the end of the first week.
(2) If a grace period for a person ends after the start of a calendar month (the first calendar month):
(a) item 4 of the table in subregulation 7.07(1) does not apply to the first calendar month; and
(b) item 4 of the table in subregulation 7.07(1) applies to the next calendar month as if the next calendar month also included the period from the end of the grace period to the end of the first calendar month.
7.10 Units of measurement and time zones
(1) If a person is required to include a time reference in the water information, the person must also include the time zone against which the time reference is made.
(2) If:
(a) a person is required to give a copy of water information to the Bureau under this Part; and
(b) the description of a subcategory of water information in Schedule 3 provides that the water information should be expressed using a particular unit of measurement; and
(c) the person has measured the water information using a different unit of measurement from that required in Schedule 3;
the person must convert the unit of measurement into the unit required by Schedule 3 before giving a copy of the water information to the Bureau.
7.11 Metadata and contextual information
(1) If a person gives a copy of water information to the Bureau under this Division, the person must, at the same time, also give to the Bureau a copy of the metadata and contextual information that relates to the water information being given, in accordance with:
(a) for category 7 water information—the document titled Urban Water Management Information Requirements (see regulation 1.06); or
(b) for any other water information—the document titled Metadata and contextual information requirements (see regulation 1.06).
(2) If the Bureau notifies the person that the metadata and contextual information required by that document has changed, the person must start giving the new metadata and contextual information that relates to the water information 6 months after the person is notified.
Part 8—Enforcement
Division 8.6—Enforceable undertakings
8.01 Specified kinds of written undertaking
For the purposes of paragraph 163(2)(d) of the Act, this Division specifies kinds of written undertakings that the appropriate enforcement agency may accept from a person if the appropriate enforcement agency considers that an action taken by, or an omission of, the person constituted a contravention to which Part 8 of the Act applies.
Note 1: For the appropriate enforcement agency for a contravention to which Part 8 of the Act applies, see section 137 of the Act.
Note 2: For the contraventions to which Part 8 of the Act applies, see section 136 of the Act.
Note 3: An undertaking must be expressed to be an undertaking under section 163 of the Act (see subsection (3) of that section).
8.02 Undertaking to pay refund, compensation or other restitution
This regulation specifies a written undertaking that the person will take specified action to pay, to a person who has suffered injury, loss or damage as a result of the action or omission referred to in regulation 8.01:
(a) a refund; or
(b) compensation; or
(c) another kind of restitution.
8.03 Undertaking to give information about another undertaking
This regulation specifies a written undertaking (a monitoring undertaking) that the person will give the appropriate enforcement agency specified information for the purpose of monitoring compliance with another specified undertaking, given by the person, that:
(a) has been accepted under section 163 of the Act by the appropriate enforcement agency; or
(b) is to be so accepted at the same time as the monitoring undertaking.
8.04 Undertaking to publish information about matters relating to another undertaking
This regulation specifies a written undertaking (a publication undertaking) that the person will take specified action to publish specified information about matters relating to another specified undertaking, given by the person, that:
(a) has been accepted under section 163 of the Act by the appropriate enforcement agency; or
(b) is to be so accepted at the same time as the publication undertaking.
Note: Examples: For example, the person may undertake to publish the information in any of the following ways:
(a) in a newsletter;
(b) in the print media;
(c) by radio or television broadcasting;
(d) on a website, such as the website of a local, State or Territory government or an industry body.
8.05 Undertaking to notify persons about another undertaking
This regulation specifies a written undertaking (a notification undertaking) that the person will take specified action to notify a specified person, or persons in a specified class, about another specified undertaking, given by the person giving the notification undertaking, that:
(a) has previously been accepted under section 163 of the Act by the appropriate enforcement agency; or
(b) is to be so accepted at the same time as the notification undertaking.
Note: Examples: For example, the person may undertake to notify the person, or persons in the class of persons, specified in the undertaking in the following ways:
(a) in a newsletter delivered by direct mail;
(b) by email;
(c) by letter.
8.06 Undertaking to appoint person to review compliance with another undertaking
This regulation specifies a written undertaking (a review undertaking) that:
(a) the person will appoint, in writing, a specified person (the reviewer) to review the person’s compliance with another specified undertaking, given by the person, that:
(i) has previously been accepted under section 163 of the Act by the appropriate enforcement agency; or
(ii) is to be so accepted at the same time as the review undertaking; and
(b) the appointment will require the reviewer to:
(i) prepare a written draft report that sets out the findings and recommendations of the review; and
(ii) give the person an opportunity to give the reviewer written comments on the draft report; and
(iii) after considering the comments—prepare a written final report; and
(iv) give the final report, with the comments attached, to the person and the appropriate enforcement agency; and
(c) the person will, after considering the final report, inform the appropriate enforcement agency, in writing, of the action (if any) that the person has taken or intends to take in response to the final report.
Part 10—Murray‑Darling Basin Authority (special powers)
10.01 Identity cards
For subsection 218(1) of the Act, an identity card issued to an authorised officer must be in a form that:
(a) is not smaller than 85 mm by 53 mm in size; and
(b) contains the following information on the front of the card:
(i) the full name of the authorised officer;
(ii) the signature of the authorised officer;
(iii) for the photograph required under subsection 218(1) of the Act, an image showing the authorised officer’s full face, and his or her head and shoulders;
(iv) a statement that the person to whom the card is issued is appointed as an authorised officer by the Authority under subsection 217(1) of the Act;
(v) a unique card number;
(vi) the date the card expires;
(vii) the Australian coat of arms; and
(c) contains the following information on the back of the card:
(i) the date the card was issued;
(ii) the phone number of the Authority;
(iii) instructions for the return of the identity card if found.
Note: Subsection 218(1) of the Act provides that an identity card issued to an authorised officer must contain a recent photograph of the officer.
Part 10AA—Inspector‑General of Water Compliance (special powers)
10AA.01 Matters to which Inspector‑General must have regard in deciding whether contractor is fit and proper to be authorised compliance officer
For the purposes of paragraph 222G(5)(a) of the Act, the matters to which the Inspector‑General must have regard in deciding whether an individual is fit and proper to be an authorised compliance officer are as follows:
(a) whether the individual has appropriate training;
(b) whether the individual has been convicted of an offence against the Water Act 2007 or a law of a State or Territory relating to water management;
(c) whether an infringement notice has been issued to the individual for contravention of a civil penalty provision of the Water Act 2007 or a provision of a law of a State or Territory relating to water management;
(d) whether the individual has been ordered to pay a pecuniary penalty for contravention of a civil penalty provision of the Water Act 2007 or a law of a State or Territory relating to water management;
(e) whether the individual has been convicted within the preceding 10 years of an indictable offence, punishable by a period of 12 months imprisonment or more, against a law of the Commonwealth, or a State or Territory;
(f) whether the individual has been convicted of an offence against a law of the Commonwealth, or a State or Territory, involving:
(i) entry onto premises; or
(ii) fraud or dishonesty; or
(iii) intentional use of violence against another person or intentional damage or destruction of property.
Note 1: In making the decision, the Inspector‑General may also have regard to any other matter the Inspector‑General considers appropriate (see paragraph 222G(5)(b) of the Act).
Note 2: Application may be made to the Administrative Review Tribunal for review of a decision by the Inspector‑General that an individual is not fit and proper to be an authorised compliance officer (see subsection 222G(6) of the Act).
Part 10A—Transitional matters relating to former MDB Agreement
Division 10A.1—Preliminary
10A.01 Purposes of Part
This Part provides for transitional matters relating to the former MDB Agreement and is made under Part 10A of the Act.
10A.02 References to various persons or bodies
In this Part, if a regulation mentions any of the following persons or bodies as being referred to in an instrument made before the commencement of Part 10A of the Act, the reference includes a reference to the person or body however described:
(a) the Murray–Darling Basin Commission;
(b) the former Murray–Darling Basin Ministerial Council;
(c) a State Contracting Government or a Contracting Government.
Division 10A.2—General—effect on instruments and things done
Subdivision 10A.2.1—References in certain instruments to Murray–Darling Basin Commission etc
10A.03 Effect on certain transitional instruments
(1) For subsection 239N(2) of the Act, a transitional instrument of a kind mentioned in column 2 of an item in the following table is specified.
(2) For subsection 239N(3) of the Act, a transitional instrument of a kind mentioned in column 2 of an item in the following table has effect as if references in the instrument to a person or body mentioned in column 3 of the item were references to the person or body mentioned in column 4 of the item.
Item
Transitional instrument specified for s 239N(2) of Act
Person or body referred to in instrument
New reference for that person or body
1
A resolution made by the Murray–Darling Basin Commission determining a water level for the purposes of the definition of minimum operating level in clause 2 of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
2
A resolution made by the Murray–Darling Basin Commission excepting an effluent or an anabranch for the purposes of paragraph (c) of the definition of upper River Murray in clause 2 of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
3
A resolution made by the former Murray–Darling Basin Ministerial Council granting approval for a tender under subclause 54(1) of the former MDB Agreement
the former Murray–Darling Basin Ministerial Council
the Authority
4
A resolution made by the Murray–Darling Basin Commission determining how the proceeds from the disposal of surplus assets are to be paid or distributed under subclause 77(2) of the former MDB Agreement
the Murray–Darling Basin Commission
the Basin Officials Committee
5
A resolution made by the Murray–Darling Basin Commission determining an alternative quantity of River Murray water for dilution and losses per month, or an additional quantity for dilution, under paragraphs 86(b) and (c) of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
6
A resolution made by the Murray–Darling Basin Commission approving a tributary or outfall under paragraph 91(1)(d) of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
7
A resolution made by the Murray–Darling Basin Commission making a determination about releases from, or amounts of water in, the Menindee Lakes Storage under subclause 92(3) of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
8
A resolution made by the Murray–Darling Basin Commission determining alternative limitations on the use of water under clause 94 of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
9
A resolution made by the Murray–Darling Basin Commission determining an alternative formula for determining the minimum reserve under subclause 100(2) of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
10
A resolution made by the Murray–Darling Basin Commission determining an alternative quantity of water to be the minimum reserve to be held in Lake Victoria under subclause 100(4) of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
11
A resolution made by the Murray–Darling Basin Commission specifying a level for the operation of a power station under paragraph 115(3)(b) of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
12
A resolution made by the Murray–Darling Basin Commission determining a higher level as the target capacity under paragraph 115(4)(b) of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
13
A resolution made by the Murray–Darling Basin Commission determining a level under subclause 117(1) of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
14
A resolution made by the Murray–Darling Basin Commission determining an alternative arrangement for attributing a water order to New South Wales and Victoria under subclause 121(1) of the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
15
An agreement or resolution in relation to the Required Annual Release Shortfall in a Water Year during which a period of special accounting is in effect under Table One of subclause 13(1) of Schedule G to the former MDB Agreement
the Murray–Darling Basin Commission
the Murray–Darling Basin Ministerial Council
10A.04 Certain instruments not being continued under transitional arrangements
A transitional instrument specified in column 2 of an item in the following table is specified for the purposes of subsection 239N(2) of the Act.
Item
Transitional instrument
1
A contract of employment entered into by the Murray–Darling Basin Commission with an employee of the Commission under paragraph 17(4)(a) or 36(a) of the former MDB Agreement
2
A novation agreement under paragraph 17(4)(a) of the former MDB Agreement between the Murray–Darling Basin Commission, the Authority and an employee of the Commission
3
An appointment to the Murray–Darling Basin Commission under clause 20 of the former MDB Agreement
4
A resolution made by the Murray–Darling Basin Commission determining its procedure under subclause 32(9) of the former MDB Agreement
5
A resolution made by the Murray–Darling Basin Commission delegating any of its powers under subclause 34(1) of the former MDB Agreement
6
A resolution made by the Murray–Darling Basin Commission initiating a proposal for works or measures under subclause 39(4) of the former MDB Agreement
7
A resolution made by the former Murray–Darling Basin Ministerial Council under subclause 51(2) of the former MDB Agreement, consenting to meeting, or contributing to, the costs of, or associated with, ancillary, preventative and remedial works
8
A resolution made by the Murray–Darling Basin Commission or the former Murray–Darling Basin Ministerial Council that approves the obtaining of financial accommodation under subclause 67(1) of the former MDB Agreement
9
A resolution made by the former Murray–Darling Basin Ministerial Council approving funds to be available for expenditure in the subsequent financial year under paragraph 75(1)(a) of the former MDB Agreement
10
A resolution made by the Murray–Darling Basin Commission in relation to estimated baseline conditions under subclause 5(3) of Schedule C to the former MDB Agreement
10A.05 Effect on Intergovernmental Agreement
(1) For subsection 239N(2) of the Act, the Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the Murray–Darling Basin of 25 June 2004 is specified.
(2) For subsection 239N(3) of the Act, the Intergovernmental Agreement has effect as if:
(a) a reference in the Intergovernmental Agreement to the Murray–Darling Basin Commission were a reference to the Authority; and
(b) a reference in the Intergovernmental Agreement to the former Murray–Darling Basin Ministerial Council were a reference to the Murray–Darling Basin Ministerial Council, except in clause 3 of the Intergovernmental Agreement; and
(c) a reference in the Intergovernmental Agreement to the Contracting Governments under the former MDB Agreement were a reference to the Contracting Governments under the Agreement.
10A.06 Effect on Supplementary Intergovernmental Agreement
(1) For subsection 239N(2) of the Act, the Supplementary Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the Murray–Darling Basin of 14 July 2006 is specified.
(2) For subsection 239N(3) of the Act, the Supplementary Intergovernmental Agreement has effect as if:
(a) a reference in the Supplementary Intergovernmental Agreement to the Murray–Darling Basin Commission were a reference to the Authority, except in clause 1 of the Supplementary Intergovernmental Agreement; and
(b) a reference in the Supplementary Intergovernmental Agreement to the former Murray–Darling Basin Ministerial Council were a reference to the Murray–Darling Basin Ministerial Council; and
(c) a reference in the Supplementary Intergovernmental Agreement to the Contracting Governments under the former MDB Agreement were a reference to the Contracting Governments under the Agreement.
Subdivision 10A.2.2—Things done under former MDB Agreement
10A.07 Effect of things done
(1) For subparagraph 239Q(1)(c)(i) of the Act, if:
(a) a thing is done before the commencement of Part 10A of the Act; and
(b) the thing is done under a provision of the former MDB Agreement mentioned in column 2 of an item in the following table;
then the provision of the Agreement mentioned in column 4 of that item is specified.
(2) For subparagraph 239Q(1)(c)(ii) of the Act, if the thing is done by, or in relation to, or pursuant to a resolution of a body or person mentioned in column 3 of an item in the following table, the body or person mentioned in column 5 of that item is specified.