Responses to issues raised in the consultation on the draft Water Amendment Regulations 2008
Further opportunities and more time for consultation on the draft rules
Issue: Stakeholders requested further opportunities and more time for consultations on the draft rules.
Response: The Minister considers that the regulations provide all stakeholders with sufficient opportunity to comment on the draft rules prior to their adoption.
The regulations required the ACCC to undertake consultation with the relevant Basin State Ministers, infrastructure operators within the Basin and the public. If the Minister proposes adopting rules that are substantially different from those the ACCC consulted on, or if the ACCC does not undertake the required consultation, then the Minister must undertake her own consultation. The regulations also provide the Minister with the option to undertake any further consultation she considers necessary.
The Minister considers comprehensive consultation to be a critical part of the ACCC's drafting process and in response to these submissions, and the ACCC's own consultation, the Minister extended the date by which the ACCC must provide the draft rules. This allowed the ACCC to include an additional stage in its consultation process and an extra four to six weeks of public consultation.
Review of the rules after implementation
Issue: Stakeholders suggested a review of the rules be undertaken following a period of implementation.
Response: The Minister supports a review of the rules to determine whether the rules are meeting their objectives and to identify any unintended consequences.
Amendments of a minor or technical nature
Issue: The regulations provide for a streamlined consultation process where amendments to the rules are of a minor or technical nature and would be unlikely to have a significant effect on the market for water. Some submissions expressed concern that the terms "minor or technical" and "market for water" were ambiguous and need further clarification.
Response: The Minister considers that the term "minor or technical" has been adequately clarified in the explanatory memorandum for the regulations. The regulations were amended to remove the phrase "market for water".
Consultation on amendments or changes to rules that are of a minor or technical nature.
Issue: The draft regulations provided for a three week consultation period for amendments to the rules that are of a minor or technical nature. Some stakeholders suggested that this consultation period was inadequate and suggested that it be extended to either four or six weeks.
Response: The Minister agrees that extending this time period to four weeks would provide stakeholders with sufficient time to prepare a considered response to any proposed minor or technical amendments to the rules. The regulations have been amended accordingly.
Confidentiality of submissions
Issue: Some submissions expressed concern that confidentiality claims could be overturned, that there is no process to dispute a claim of confidentiality, and that submissions might be published regardless of a claim of confidentiality.
Response: The Minister considers that the regulations set out an appropriate process for managing confidentiality claims, balancing the need for an open transparent process.
The regulations allow submitters to declare part or all of their submission as confidential. If the Minister agrees that the information is confidential then she can consider the information but it cannot be published. If the Minister disagrees with a claim of confidentiality, she must inform the relevant person and give them 21 days to withdraw their claim. The person may then either withdraw the claim of confidentiality or withdraw their submission without it being considered. If the person does not respond to the Minister's letter within 21 days, the submission is automatically withdrawn without consideration.
Process to be followed if the Minister rejects the ACCC's advice
Issue: Some submissions expressed concern that the regulations did not identify steps the Minister must take if she rejects the ACCC's advice on the rules.
Response: The Minister considers that these concerns are addressed by the Water Act 2007 (the Act). Under the Act, if the Minister chooses not to accept the ACCC's advice on the draft rules then, when the rules are tabled in Parliament, the Minister must include a document setting out the areas in which the rules do not reflect the advice given to her by the ACCC, and her reason for departing from that advice.
Murray Darling Basin Authority (MDBA)
Issue: A few stakeholders suggested that the MDBA should have a role in the process of making the rules.
Response: The consultation processes prescribed by the draft regulations provide the MDBA with the opportunity to comment on the rules.
Appeals against the ACCC's consultation process
Issue: Some submissions expressed concern that the regulations did not provide for any appeals process if the consultations were not adequate.
Response: The Minister does not believe that an appeals process is necessary since the regulations provide for extensive consultations on the rules.
Failure to comply with the requirements of the Regulations
Issue: The regulations state that a failure to meet the requirements of the regulations will not affect the validity or enforceability of the water charge and water market rules. There was a concern that this meant there was no obligation on the government to undertake the consultation prescribed in the regulations.
Response: The Minister has obtained legal advice confirming that this is not the case and that the purpose of this section is to prevent minor administrative oversights from invalidating the rules after they have been made.
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