Water Amendment Act 2008 (Cth)
Contents
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The Parliament of Australia enacts:
This Act may be cited as the
Water Amendment Act 2008 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 8 December 2008 |
Schedule 1 | Immediately after the commencement of the provision(s) covered by table item 3. | 15 December 2008 |
Schedule 2 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 15 December 2008 ( F2008L04656) |
Schedules 3 and 4 | Immediately after the commencement of the provision(s) covered by table item 3. | 15 December 2008 |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Insert:
In this Act:
Agreement means the Murray‑Darling Basin Agreement, as amended from time to time in accordance with that agreement and as set out in Schedule 1.Note: The Murray‑Darling Basin Agreement operates as an agreement between the parties. The text of the Agreement is set out in Schedule 1, and as such it has further effect as provided for by this Act (for example, see sections 18E and 18F).
Authority means the Murray‑Darling Basin Authority established by section 171.
Basin Officials Committee means the committee established under the Agreement.
Murray‑Darling Basin means the area falling within the boundary described in the dataset that:
(a) is titled Murray‑Darling Basin Boundary—
Water Act 2007 ; and(b) has a dataset scale of 1:250,000; and
(c) specifies the boundary of the Murray‑Darling drainage division derived from the dataset that is titled “Australia’s River Basins 1997” and is dated 30 June 1997; and
(d) is held by the Commonwealth.
Note 1: An indicative map of this area is set out in Schedule 1A.
Note 2: A copy of the dataset can be obtained from the Department’s website: see section 252A.
Murray‑Darling Basin Ministerial Council has the same meaning asMinisterial Council in the Agreement.
Reference of matters by State Parliament to Commonwealth Parliament
(1) A State is a
referring State if the Parliament of the State has referred the matters covered by subsections (3) and (4) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:
(a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and
(b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State.
This subsection has effect subject to subsections (5) and (6).
(2) A State is a
referring State even if a law of the State provides that the reference to the Parliament of the Commonwealth of either or both of the matters covered by subsections (3) and (4) is to terminate in particular circumstances.
Reference covering initial provisions of this Act
(3) This subsection covers the matters to which the referred provisions for the State in question relate to the extent of making laws with respect to those matters by including the referred provisions in this Act.
Reference covering amendments of this Act
(4) This subsection covers:
(a) if the State in question is a Basin State—the referred subject matters; and
(b) in any case—the matter of the application, in relation to water resources that are not Basin water resources, of provisions of this Act dealing with the subject matters specified in paragraphs (c) and (d) of the definition of
referred subject matters in subsection (9) (being an application of a kind that is authorised by the law of the State in question);to the extent of the making of laws with respect to those matters by making express amendments of this Act.
Effect of termination of reference
(5) A State ceases to be a
referring State if the State’s initial reference terminates.(6) Subject to subsections (7) and (8), a State ceases to be a
referring State if the State’s amendment reference terminates.(7) A State does not cease to be a
referring State because of the termination of its amendment reference if:
(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and
(b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and
(c) that State’s amendment reference, and the amendment reference of every other referring State, terminate on the same day.
(8) A State does not cease to be a
referring State because of the termination of its amendment reference if:
(a) a Bill is introduced into a House of the Parliament that includes a proposed amendment of the referred provisions, or that would, if enacted, have the effect that this Act would no longer contain:
(i) subsections 22(10), (11) and (12), or provisions having substantially the same effect; or
(ii) Part 11A, or provisions having substantially the same effect; and
(b) the Governor of the State, by proclamation, issues a notice stating that:
(i) the State has not agreed to the amendment; and
(ii) this subsection will apply in relation to the State from a day specified in the notice; and
(c) the State Minister of that State who is a member of the Murray‑Darling Basin Ministerial Council informs the other members of the Murray‑Darling Basin Ministerial Council that the notice was issued; and
(d) the Governor does not revoke the notice before:
(i) the day specified in the notice passes; or
(ii) the Bill is enacted in a form that includes that amendment or a substantially similar amendment;
whichever happens later.
Definitions
(9) In this section:
amendment includes the insertion, omission, repeal, substitution, addition or relocation of words or matter.
amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4).
express amendment of this Act means the direct amendment of:
(a) the referred provisions; or
(b) definitions in this Act of terms used in the referred provisions;
but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of the referred provisions or those definitions.
initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (3).
referred provisions , for a State, means:
(a) if the State is a Basin State—this Part and Parts 2A, 4, 4A, 10A and 11A, as originally enacted by the
Water Amendment Act 2008 , to the extent to which they deal with matters that are included in the legislative powers of the Parliament of the State; or(b) if the State is not a Basin State—Parts 4A and 11A, as originally enacted by the
Water Amendment Act 2008 , to the extent to which they deal with matters that are included in the legislative powers of the Parliament of the State.
referred subject matters means any of the following:
(a) the powers, functions and duties conferred on Commonwealth agencies that:
(i) relate to Basin water resources; and
(ii) are conferred by or under the Agreement;
(b) the management of Basin water resources to meet critical human water needs;
(c) water charging in relation to Basin water resources (other than for urban water supply after the removal of the water from a Basin water resource);
(d) the transformation of entitlements to water from a Basin water resource to enable trading in those water entitlements;
(e) the transfer of assets, rights and liabilities of the Murray‑Darling Basin Commission to the Authority, and other transitional matters relating to the replacement of the Murray‑Darling Basin Commission.
(10) A reference in this section to a Part of this Act includes a reference to any Schedule to this Act that contains provisions enacted for the purposes of that Part.
(1) The regulations may make amendments to Schedule 1 by incorporating into the Agreement amendments made to, and in accordance with, the Murray‑Darling Basin Agreement.
Note 1: The Murray‑Darling Basin Agreement requires the agreement of the Murray‑Darling Basin Ministerial Council to any amendments of the Murray‑Darling Basin Agreement.
Note 2: Amendments of the Murray‑Darling Basin Agreement, made in accordance with that agreement, operate as an agreement between the parties. The text of the Agreement as set out in Schedule 1 will be amended accordingly, and as such it has further effect as provided for by this Act (for example, see sections 18E and 18F). The amendment of the Schedule by itself cannot amend the agreement between the parties.
(2) A reference in subsection (1) to amendment includes a reference to the insertion, omission, repeal, substitution, addition or relocation of words or matter.
(3) Part 6 (sunsetting) of the
Legislative Instruments Act 2003 does not apply to regulations made for the purposes of this section.
A protocol made by the Authority under a Schedule to the Agreement is a legislative instrument, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the
Legislative Instruments Act 2003 applies to the protocol.
(1) Without limiting sections 172 and 173, the Authority has, in a referring State or the Australian Capital Territory, the functions, powers and duties that:
(a) are expressed to be conferred on it by or under the Agreement; and
(b) relate to the water and other natural resources of the Murray‑Darling Basin.
(2) In performing these functions and duties and exercising these powers, the Authority must comply with any requirements under the Agreement.
(3) The Authority has, in connection with:
(a) the performance of its functions and duties under this Part; and
(b) the exercise of its powers under this Part;
such powers in a referring State or the Australian Capital Territory as it has in connection with the performance of its other functions under this Act.
(4) However, the application of subsection (3) to the Authority’s powers under Part 10 is limited to the Authority’s powers under:
(a) Subdivision A of Division 2 of that Part (Authorised officers); and
(b) Subdivision B of Division 2 of that Part (Powers to enter land etc. other than for compliance purposes); and
(c) Division 3 of that Part (Information gathering).
(5) Part 10 so applies as if:
(a) the application of that Part in relation to premises in, or information held in, a referring State or the Australian Capital Territory were not limited by section 216 or 219 or by subsection 238(1); and
(b) references in section 221 to the Authority’s functions under section 219 included references to the Authority’s functions under this Part.
(6) However:
(a) an authorised officer must not enter premises under Subdivision B of Division 2 of that Part as applied by this section unless he or she reasonably believes this is necessary for the performance of any of the Authority’s functions under this Part; and
(b) Subdivision B of Division 2 of that Part as applied by this section does not extend to entering premises for the purposes of:
(i) monitoring compliance with this Part or regulations made for the purposes of this Part; or
(ii) searching for evidential material; and
(c) the Authority must not require a person to give information under Division 3 of that Part as applied by this section unless the Authority has reason to believe that information relating to a matter:
(i) relevant to the performance of the Authority’s functions under this Part; and
(ii) specified in regulations made for the purposes of this paragraph;
is in the person’s possession, custody or control (whether held electronically or in any other form).
Note: The conferral of functions, powers and duties on the Authority by this section does not otherwise give the Agreement any effect as a law of the Commonwealth.
(1) Without limiting section 202, the Basin Community Committee has, in a referring State or the Australian Capital Territory, the functions, powers and duties that:
(a) are expressed to be conferred on it by or under the Agreement; and
(b) relate to the water and other natural resources of the Murray‑Darling Basin.
(2) In performing these functions and duties and exercising these powers, the Basin Community Committee must comply with any requirements under the Agreement.
Note: The conferral of functions, powers and duties on the Basin Community Committee by this section does not otherwise give the Agreement any effect as a law of the Commonwealth.
The Authority must deal with:
(a) any money under the Agreement; and
(b) any assets it acquires with that money; and
(c) any assets that vest in the Authority under section 239C;
in a way that is in accordance with the Agreement and consistent with the purposes of the Agreement.
(1) The Authority must, if the Living Murray Initiative so provides, manage the rights and interests that:
(a) are:
(i) water access rights, water delivery rights, irrigation rights or other similar rights relating to water; or
(ii) interests in, or in relation to, such rights; and
(b) are held for the purposes of the Living Murray Initiative;
in accordance with and in a way that gives effect to the Living Murray Initiative.
(2) The
Living Murray Initiative is the Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the Murray‑Darling Basin of 25 June 2004 read together with:
(a) the Supplementary Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the Murray‑Darling Basin of 14 July 2006; and
(b) arrangements referred to in clause 3.9.2 of the Agreement on Murray‑Darling Basin Reform‑Referral.
Insert:
(1) Without limiting section 21, the Basin Plan must be prepared having regard to the fact that the Commonwealth and the Basin States have agreed:
(a) that critical human water needs are the highest priority water use for communities who are dependent on Basin water resources; and
(b) in particular that, to give effect to this priority in the River Murray System, conveyance water will receive first priority from the water available in the system.
(2)
Critical human water needs are the needs for a minimum amount of water, that can only reasonably be provided from Basin water resources, required to meet:
(a) core human consumption requirements in urban and rural areas; and
(b) those non‑human consumption requirements that a failure to meet would cause prohibitively high social, economic or national security costs.
(3) The
River Murray System is the aggregate of:
(a) the main course of the River Murray upstream of the eastern boundary of South Australia; and
(b) all tributaries entering that part of the main course upstream of Doctors Point (near Albury); and
(c) all effluents and anabranches of that part of the main course; and
(d) the watercourses connecting Lake Victoria to the main course; and
(e) the Darling River downstream of the Menindee Lakes Storage; and
(f) the upper River Murray storages, namely:
(i) Lake Victoria; and
(ii) the Menindee Lakes Storage; and
(iii) the storages formed by Dartmouth Dam and Hume Dam; and
(iv) the storages formed by the weirs, and weirs and locks, described in Schedule A to the Agreement that are upstream of the eastern boundary of South Australia; and
(g) the River Murray in South Australia.
(4)
Conveyance water is water in the River Murray System required to deliver water to meet critical human water needs as far downstream as Wellington in South Australia.
(1) The Basin Plan must:
(a) include a statement of the amount of water required in each Basin State that is a referring State (other than Queensland) to meet the critical human water needs of the communities in the State that are dependent on the waters of the River Murray System; and
(b) include a statement of the amount of conveyance water required to deliver the water referred to in paragraph (a); and
(c) specify water quality trigger points and salinity trigger points at which water in the River Murray System becomes unsuitable for meeting critical human water needs.
(2) The reference in paragraph (1)(a) to communities in a Basin State who are dependent on the waters of the River Murray System does not include a reference to communities dependent on the waters of the Edward‑Wakool System downstream of Stevens Weir.
(1) The Basin Plan must also specify:
(a) arrangements for monitoring matters relevant to critical human water needs, including monitoring the quality, quantity and flows of surface water, the health of ecosystems and social impacts on communities; and
(b) the process for assessing, and managing risks to critical human water needs associated with, inflow prediction:
(i) in the River Murray System; and
(ii) in relation to works that are under the control of the body that is entitled, under the
Snowy Hydro Corporatisation Act 1997 of New South Wales, to the Snowy water licence within the meaning of that Act; and(c) the risk management approach for inter‑annual planning relating to arrangements for critical human water needs in future years.
(2) The risk management approach referred to in paragraph (1)(c) must address the making of decisions about whether water is:
(a) made available, in a particular year, for uses other than meeting critical human water needs; or
(b) set aside for critical human water needs in future years.
(1) The Basin Plan must also:
(a) specify the conditions under which, due to the likelihood that the State water sharing arrangements that would apply but for this Part (
Tier 1 water sharing arrangements ) will not ensure that there is enough water to meet conveyance water needs:
(i) the Tier 1 water sharing arrangements cease to apply; and
(ii) other State water sharing arrangements (
Tier 2 water sharing arrangements ), provided for in the Agreement, commence; and(b) specify the conditions under which Tier 2 water sharing arrangements cease to apply and Tier 1 water sharing arrangements recommence; and
(c) include a reserves policy that, for periods during which Tier 2 water sharing arrangements apply:
(i) specifies the annual volume of water required to be reserved to meet the shortfall in conveyance water worked out under subsection (2); and
(ii) specifies the extent to which this volume may vary between years; and
(iii) specifies the arrangements that are to apply to ensure that the volume of water required to meet the shortfall in conveyance water will be reserved and provided; and
(iv) takes into account the potential inputs from the Murrumbidgee, Darling and Goulburn Rivers; and
(d) specify arrangements for carrying water over in storage from one year to another for New South Wales, Victoria and South Australia; and
(e) provide for any other matters necessary to give effect to arrangements for sharing water in the River Murray System and in the Murrumbidgee, Darling and Goulburn Rivers in order to provide conveyance water.
(2) The shortfall in conveyance water is worked out for the purposes of subparagraph (1)(c)(i) by subtracting:
(a) the amount of conveyance water referred to in paragraph 86B(1)(b); from
(b) the minimum inflow sequence to the River Murray System from:
(i) natural flows; and
(ii) works that are under the control of the body that is entitled, under the
Snowy Hydro Corporatisation Act 1997 of New South Wales, to the Snowy water licence within the meaning of that Act.(3) The arrangements referred to in paragraph (1)(d) must:
(a) recognise South Australia’s right, as provided for in clauses 91 and 130 of the Agreement, to store its entitlement to water; and
(b) recognise that each of New South Wales, Victoria and South Australia is responsible for meeting the critical human water needs of that State, and will decide how water from its share is used.
(4)
State water sharing arrangements are the provisions of the Agreement that deal with the sharing of surface water in the River Murray System.Note: The rules and accounting arrangements in the Agreement partition the shared surface water resource of the River Murray System between New South Wales and Victoria, and detail the entitlements to this water by South Australia. The Agreement includes provisions about the way in which the shares are defined, transferred and accounted for, access to and sharing of the storages, access to flows at different times and accounting for losses and overflows. All these provisions are used to determine the quantity of water in each State’s share at any given time.
(1) The Basin Plan must also:
(a) specify the conditions under which, due to one or more of the circumstances referred to in subsection (2):
(i) Tier 2 water sharing arrangements cease to apply; and
(ii) other arrangements (
Tier 3 water sharing arrangements ), provided for in the Agreement, commence; and(b) specify the conditions under which Tier 3 water sharing arrangements cease to apply and Tier 2 water sharing arrangements recommence.
(2) For the purposes of paragraph (1)(a), the circumstances are:
(a) there are extreme and unprecedented low levels of water availability in the River Murray System; or
(b) there is extreme and unprecedented poor water quality in the water available in the River Murray System to meet critical human water needs; or
(c) there is an extremely high risk that water will not be available in the River Murray System to meet critical human water needs during the next 12 months.
(1) If a water quality trigger point or salinity trigger point referred to in paragraph 86B(1)(c) is reached, the Authority must:
(a) in consultation with the Basin Officials Committee, formulate an emergency response to ensure that water in the River Murray System that is available to meet critical human water needs is returned to a state suitable for meeting critical human water needs; and
(b) subject to subsection (2), take the action necessary to implement the emergency response.
(2) The Authority must not take any action under paragraph (1)(b) that affects State water sharing arrangements or Border Rivers water sharing arrangements unless the Murray‑Darling Basin Ministerial Council has agreed to the action.
(3)
Border Rivers water sharing arrangements are the agreements ratified by:
(a) the
New South Wales‑Queensland Border Rivers Act 1947 of New South Wales; and(b) the
New South Wales‑Queensland Border Rivers Act 1946 of Queensland;that deal with the distribution and use of surface water.
(1) The Authority and other agencies of the Commonwealth must perform their functions, and exercise their powers, consistently with, and in a manner that gives effect to, the matters included or specified in the Basin Plan under this Part.
(2) Subsection (1) does not apply to the performance of a function, or the exercise of a power, that affects State water sharing arrangements or Border Rivers water sharing arrangements, unless:
(a) the Murray‑Darling Basin Ministerial Council has agreed to the Basin Plan applying to the performance of the function or the exercise of the power; or
(b) the performance of the function or the exercise of the power takes place at a time when, under clause 135 of the Agreement, the provisions of the Basin Plan required by this Part are taken to be a Schedule to the Agreement.
(3) To avoid doubt, subsection (1) does not apply to the Authority’s functions and powers under this Part.
(1) The Basin Officials Committee, an agency of a Basin State that is a referring State or an agency of the Australian Capital Territory must not:
(a) do an act in relation to Basin water resources if the act is inconsistent with any of the matters included or specified in the Basin Plan under this Part; or
(b) fail to do an act in relation to Basin water resources if the failure to do that act is inconsistent with any of those matters.
(2) Subsection (1) applies to an act of the Basin Officials Committee, an agency of a Basin State that is a referring State or an agency of the Australian Capital Territory only if the act is one that relates to the use or management of the Basin water resources.
(3) An operating authority, an infrastructure operator or the holder of a water access right must not, in a Basin State that is a referring State, or in the Australian Capital Territory:
(a) do an act in relation to Basin water resources if the act is inconsistent with any of the matters included or specified in the Basin Plan under this Part; or
(b) fail to do an act in relation to Basin water resources if the failure to do that act is inconsistent with any of those matters.
(4) Subsection (1) or (3) does not apply to an act, or failure to act, that affects State water sharing arrangements or Border Rivers water sharing arrangements, unless:
(a) the Murray‑Darling Basin Ministerial Council has agreed to the Basin Plan applying to the act or failure; or
(b) the act or failure takes place at a time when, under clause 135 of the Agreement, the provisions of the Basin Plan required by this Part are taken to be a Schedule to the Agreement.
(1) The Authority has, in connection with:
(a) the performance of its functions and duties under this Part; and
(b) the exercise of its powers under this Part;
such powers in a Basin State that is a referring State, or in the Australian Capital Territory, as it has in connection with the performance of its other functions under this Act.
(2) The application of subsection (1) to the Authority’s powers under Part 10 in relation to premises in, or information held in, a referring State or the Australian Capital Territory is not limited by section 216 or 219 or by subsection 223(1) or 238(1).
(3) Part 10 so applies as if:
(a) references in section 221 to the Authority’s functions under section 219 included references to the Authority’s functions under this Part; and
(b) for the purposes of Subdivision C of Division 2 of that Part, references in the definition of
evidential material in subsection 4(1) to Part 2 included references to this Part; and(c) references in subsections 224(3) and 225(2) to Part 2 included references to this Part.
(4) However:
(a) an authorised officer must not enter premises under Subdivision B of Division 2 of that Part as applied by this section unless he or she reasonably believes this is necessary for the performance of any of the Authority’s functions under this Part; and
(b) Subdivision B of Division 2 of that Part as applied by this section does not extend to entering premises for the purposes of:
(i) monitoring compliance with this Part or regulations made for the purposes of this Part; or
(ii) searching for evidential material; and
(c) an authorised officer must not:
(i) enter premises under Subdivision C of Division 2 of that Part as applied by this section; or
(ii) exercise any of the powers described in subsection 223(2);
except to the extent that this is reasonably necessary to monitor compliance with provisions of this Part or regulations made for the purposes of this Part; and
(d) the Authority must not require a person to give information under Division 3 of that Part as applied by this section unless the Authority has reason to believe that information relating to either of the following matters:
(i) the preparation and implementation of the Basin Plan in the way provided for in this Part;
(ii) a matter that is relevant to the performance of the Authority’s functions under this Part and that is specified in regulations made for the purposes of this paragraph;
is in the person’s possession, custody or control (whether held electronically or in any other form).
Insert:
(1) This Division applies to the following kinds of charges:
(a) fees or charges (however described) payable to an irrigation infrastructure operator for:
(i) access to the operator’s irrigation network (or services provided in relation to that access); or
(ii) changing access to the operator’s irrigation network (or services provided in relation to that access); or
(iii) terminating access to the operator’s irrigation network (or services provided in relation to that access); or
(iv) surrendering to the operator a right to the delivery of water through the operator’s irrigation network;
(b) bulk water charges;
(c) charges for water planning and water management activities;
(d) a fee or charge (however described) that relates to:
(i) access to water service infrastructure; or
(ii) services provided in relation to access to water service infrastructure; or
(iii) services provided through the operation of water service infrastructure; or
(iv) the taking of water from a water resource;
and is of a kind prescribed by the regulations for the purposes of this paragraph.
(2) This Division applies to a charge of the kind referred to in subsection (1) only to the extent to which the charge relates to:
(a) Basin water resources; or
(b) water service infrastructure that carries Basin water resources; or
(c) water service infrastructure that carries water that has been taken from a Basin water resource; or
(d) water access rights, irrigation rights or water delivery rights in relation to Basin water resources.
(3) However, this Division does not apply to charges in respect of urban water supply activities beyond the point at which the water has been removed from a Basin water resource.
(4) Charges to which this Division applies are
regulated water charges for the purposes of this Act.
(1) The Minister may make rules (to be called
water charge rules ), applying in Basin States that are referring States and in the Australian Capital Territory, that:
(a) relate to regulated water charges; and
(b) deal with one or more of the matters referred to in subsection (3); and
(c) contribute to achieving the Basin water charging objectives and principles set out in Schedule 2.
(2) Water charge rules are legislative instruments.
(3) Water charge rules may deal with the following matters:
(a) the rules that must be applied in determining the amount of:
(i) regulated water charges generally; or
(ii) regulated water charges of a particular kind;
(b) the terms and conditions that may, or must not, be imposed in relation to:
(i) regulated water charges generally; or
(ii) regulated water charges of a particular kind;
(c) the determination, or approval, by the ACCC of regulated water charges;
(d) the process to be followed in applying for, and making or giving, determinations or approvals of the kind referred to in paragraph (c);
(e) the accreditation by the ACCC of arrangements under which regulated water charges are determined or approved by agencies of the States (instead of by the ACCC);
(f) the process to be followed in applying for, and making or giving, accreditation of the kind referred to in paragraph (e);
(g) the terms and conditions on which arrangements are accredited under rules made for the purposes of paragraph (e) (including the determination of some or all of those terms and conditions by the ACCC);
(h) the obligations to be imposed in relation to the accreditation of arrangements under rules made for the purposes of paragraph (e) (including the determination of some or all of those obligations by the ACCC);
(i) the prohibition of regulated water charges of a particular kind in the circumstances specified in the rules;
(j) the imposition of a requirement on the person determining the amount of regulated water charges to publish:
(i) the details of the charges; and
(ii) the process for determining the amount of the charges;
(k) transitional arrangements for the introduction of, or changes to, water charge rules;
(l) any matter that was dealt with in:
(i) paragraph 15(3)(c) of Schedule E to the former MDB Agreement; or
(ii) the Access and Exit Fees Protocol to the former MDB Agreement made under paragraph 6(1)(f) of Schedule E to the former MDB Agreement.
(4) Without limiting paragraph (3)(c), water charge rules may specify the effect, and duration, of a determination or approval of the kind referred to in that paragraph.
(5) Without limiting paragraph (3)(d), water charge rules may specify:
(a) the information that an applicant for a determination or approval of the kind referred to in paragraph (3)(c) must give the ACCC in relation to the application; and
(b) the timing of the steps in the process in which:
(i) the application is made; and
(ii) the determination is made or the approval is given.
(6) Without limiting paragraph (3)(e), the rules made for the purposes of that paragraph may provide for the circumstances in which:
(a) an accreditation may be revoked; or
(b) the terms and conditions on which an accreditation is given may be varied.
(7) Without limiting subsection (3), particular water charge rules may be limited to either or both of the following:
(a) particular kinds of regulated water charges;
(b) regulated water charges in relation to particular water resources.
(8) Without limiting subsection (3), water charge rules may provide that a particular provision of the rules is a civil penalty provision.
(9) The civil penalty for a contravention of a provision specified under subsection (8) is 200 penalty units.
(10) Without limiting subsection (3), water charge rules may provide that a person who suffers loss or damage as a result of conduct, or an omission, of another person that contravenes the water charge rules may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
(1) The Minister must ask the ACCC for advice about water charge rules the Minister proposes to make, or about proposed amendments or revocations of rules.
(2) The ACCC must give the Minister advice about the proposed water charge rules, or proposed amendments or revocations.
(3) In giving advice to the Minister about proposed water charge rules, or proposed amendments or revocations, in relation to regulated water charges payable to infrastructure operators, the ACCC must have regard to:
(a) the governance arrangements of those operators; and
(b) the current charging arrangements of those operators; and
(c) the history of the charging arrangements of those operators.
(4) The Minister must have regard to the ACCC’s advice in making, amending or revoking the water charge rules.
(5) The regulations must provide for the process that the Minister is to follow in making, amending or revoking water charge rules.
(6) Without limiting subsection (5), the regulations must provide for:
(a) consultations with the Basin States and with infrastructure operators; and
(b) public consultations;
as part of the process of making, amending or revoking water charge rules.
(7) If:
(a) the Minister makes, amends or revokes water charge rules; and
(b) the rules do not reflect the advice that the ACCC gave the Minister under subsection (2) in relation to the rules, or the amendments or revocations;
the Minister must, when the rules, amendments or revocations are laid before a House of the Parliament under the
Legislative Instruments Act 2003 , also lay before that House a document that sets out:
(c) the respects in which the rules, amendments or revocations do not reflect the advice given by the ACCC; and
(d) the Minister’s reasons for departing from that advice.
(1) The ACCC is to monitor:
(a) regulated water charges; and
(b) compliance with the water charge rules.
(2) The ACCC must give the Minister a report on the results of such monitoring.
(3) The reports under subsection (2) must be given to the Minister in accordance with an agreement between the Minister and the ACCC.
(1) The Minister may formulate, in writing, model rules for regulated water charges.
Note: The model rules do not have any legal effect under this Act but are available for adoption by States, Territories, infrastructure operators and other persons.
(2) Model rules formulated under subsection (1) are not legislative instruments.
(1) A request that the Minister made to the ACCC before the commencement of this section, under subsection 93(1) as in force before that commencement, is taken after that commencement to be a request that the Minister made under that subsection as in force after that commencement.
(2) Regulations made before the commencement of this section for the purposes of subsection 93(5) or (6) as in force before that commencement continue in force after that commencement as if they were made for the purposes of that subsection as in force after that commencement.
(1) The Minister may make rules (to be called
water market rules ), applying in Basin States that are referring States and in the Australian Capital Territory, that:
(a) relate to an act that an irrigation infrastructure operator does, or fails to do, in a way that prevents or unreasonably delays arrangements being made that would reduce the share component of a water access entitlement of the operator to allow:
(i) a person’s entitlement to water under an irrigation right against the operator; or
(ii) a part of that entitlement;
to be permanently transformed into a water access entitlement that is held by someone other than the operator; and
(b) contribute to achieving the Basin water market and trading objectives and principles set out in Schedule 3.
Arrangements of the kind referred to in paragraph (a) are referred to in this section as
transformation arrangements .
(2) Water market rules are legislative instruments.
(3) Without limiting subsection (1), water market rules may deal with the restrictions that an irrigation infrastructure operator may, or may not, impose in relation to:
(a) transformation arrangements; or
(b) the trading or transferring, by a person who had an irrigation right against the operator, of a water access entitlement, or part of such an entitlement, obtained as a result of transformation arrangements.
(4) Without limiting subsection (3), the restrictions referred to in that subsection include:
(a) restrictions imposed by including provisions in a contract, arrangement or understanding between an irrigation infrastructure operator and:
(i) a person who has an irrigation right against the operator; or
(ii) a person who has a water access entitlement, or part of such an entitlement, that the person obtained as a result of transformation arrangements in relation to an irrigation right the person had against the operator; and
(b) restrictions imposed by the way in which an irrigation infrastructure operator conducts its operations.
(5) Without limiting subsection (1), water market rules may:
(a) permit an irrigation infrastructure operator to require security before allowing:
(i) a person who holds an irrigation right against the operator to obtain a water access entitlement, or part of such an entitlement, through transformation arrangements in relation to the irrigation right; or
(ii) a person who has obtained a water access entitlement, or part of such an entitlement, as a result of transformation arrangements in relation to an irrigation right the person had against the operator to trade or transfer the water access entitlement, or part, obtained; and
(b) provide for transitional arrangements in relation to contracts that have been entered into between an irrigation infrastructure operator and another person before water market rules are made or amended.
(6) Water market rules must not prevent an irrigation infrastructure operator from:
(a) imposing, or requiring the payment of, a regulated water charge; or
(b) requiring the approval of a person who holds a legal or equitable interest in an irrigation right that a person has against the operator before allowing transformation arrangements in relation to that irrigation right.
(7) Without limiting subsection (1), water market rules may provide that a particular provision of the rules is a civil penalty provision.
(8) The civil penalty for a contravention of a provision specified under subsection (7) is 200 penalty units.
(9) Without limiting subsection (1), water market rules may provide that a person who suffers loss or damage as a result of conduct, or an omission, of another person that contravenes the water market rules may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
(10) No claim, action or demand may be made, asserted or taken against an irrigation infrastructure operator for anything done by the operator solely for the purpose of complying with water market rules.
(11) Before the Basin Plan first takes effect, this section applies in relation to any entitlement that is a perpetual or ongoing entitlement, by or under a law of a State or Territory, to exclusive access to a share of the Basin water resources as if the entitlement were a water access entitlement.
(1) The Minister must ask the ACCC for advice about water market rules the Minister proposes to make, or about proposed amendments or revocations of rules.
(2) The ACCC must give the Minister advice about the proposed water market rules, or proposed amendments or revocations.
(3) The Minister must have regard to the ACCC’s advice in making, amending or revoking the water market rules.
(4) The regulations must provide for the process that the Minister is to follow in making, amending or revoking water market rules.
(5) Without limiting subsection (4), the regulations must provide for:
(a) consultations with the Basin States and with infrastructure operators; and
(b) public consultations;
as part of the process of making, amending or revoking water market rules.
(6) If:
(a) the Minister makes, amends or revokes water market rules; and
(b) the rules do not reflect the advice that the ACCC gave the Minister under subsection (2) in relation to the rules, or the amendments or revocations;
the Minister must, when the rules, amendments or revocations are laid before a House of the Parliament under the
Legislative Instruments Act 2003 , also lay before that House a document that sets out:
(c) the respects in which the rules, amendments or revocations do not reflect the advice given by the ACCC; and
(d) the Minister’s reasons for departing from that advice.
(1) The ACCC is to monitor:
(a) transformation arrangements; and
(b) compliance with the water market rules.
(2) The ACCC must give the Minister a report on the results of such monitoring.
(3) The reports under subsection (2) must be given to the Minister in accordance with an agreement between the Minister and the ACCC.
(1) A request that the Minister made to the ACCC before the commencement of this section, under subsection 98(1) as in force before that commencement, is taken after that commencement to be a request that the Minister made under that subsection as in force after that commencement.
(2) Regulations made before the commencement of this section for the purposes of subsection 98(4) or (5) as in force before that commencement continue in force after that commencement as if they were made for the purposes of that subsection as in force after that commencement.
The ACCC has, for the purposes of this Part:
(a) the functions and powers conferred on it under Part 8 as an appropriate enforcement agency; and
(b) the functions and powers conferred on it under section 155 of the
Trade Practices Act 1974 .
Insert:
(1) Water charge rules, and Division 1 of Part 4, apply in relation to all of the water resources in a referring State, or part of a referring State, that are not Basin water resources if:
(a) a law of the State provides that this section applies to the State, or that part of the State; and
(b) the regulations provide that this section applies to the State, or that part of the State.
(2) Water charge rules, and Division 1 of Part 4, apply in relation to all of the water resources in the Northern Territory, or part of the Territory, if:
(a) a law of the Northern Territory provides that this section applies to the Territory, or that part of the Territory; and
(b) the regulations provide that this section applies to the Northern Territory, or that part of the Territory.
(3) However, water charge rules, and Division 1 of Part 4, do not apply in relation to:
(a) water resources that are prescribed by the regulations for the purposes of this paragraph; and
(b) urban water supply activities beyond the point at which the water has been removed from a water resource in the referring State, or the Northern Territory.
(4) This section has effect despite subsection 91(2).
(5) This section does not affect the operation of Part 4 in relation to Basin water resources.
(1) Water market rules, and Division 2 of Part 4, apply in relation to all the non‑Basin water access entitlements in a referring State, or in a particular area of a referring State, if:
(a) a law of the State provides that this section applies in relation to the non‑Basin water access entitlements in the State, or in that area of the State; and
(b) the regulations provide that this section applies in relation to the non‑Basin water access entitlements in the State, or in that area of the State.
(2) Water market rules, and Division 2 of Part 4, apply in relation to all the non‑Basin water access entitlements in the Northern Territory, or in a particular area of the Northern Territory if:
(a) a law of the Northern Territory provides that this section applies in relation to the non‑Basin water access entitlements in the Territory, or in that area of the Territory; and
(b) the regulations provide that this section applies in relation to the non‑Basin water access entitlements in the Territory, or in that area of the Territory.
(3) However, water market rules, and Division 2 of Part 4, do not apply in relation to non‑Basin water access entitlements that are prescribed by the regulations for the purposes of this subsection.
(4) Water market rules, and Division 2 of Part 4, apply for the purposes of this section as if non‑Basin water access entitlements were water access entitlements.
(5) A
non‑Basin water access entitlement is a perpetual or ongoing entitlement, by or under a law of a State or Territory, to exclusive access to a share of the water resources of an area in the State or Territory that are not Basin water resources.(6) This section does not affect the operation of Part 4 in relation to Basin water resources.
The ACCC has, for the purposes of this Part:
(a) the functions and powers conferred on it under Part 8 as an appropriate enforcement agency; and
(b) the functions and powers conferred on it under section 155 of the
Trade Practices Act 1974 .
Insert:
In this Act:
former MDB Agreement has the same meaning asAgreement had in theMurray‑Darling Basin Act 1993 immediately before the commencement of Schedule 2 to theWater Amendment Act 2008 , including all of the changes to that agreement that the former Murray‑Darling Basin Ministerial Council had agreed to before the commencement of that Schedule.
former Murray‑Darling Basin Ministerial Council has the same meaning asMurray‑Darling Basin Ministerial Council had in this Act immediately before the commencement of Schedule 2 to theWater Amendment Act 2008 .
Murray‑Darling Basin Commission has the same meaning asCommission had in theMurray‑Darling Basin Act 1993 immediately before the commencement of Schedule 2 to theWater Amendment Act 2008 .
This Part applies if each of the Basin States (other than the Australian Capital Territory) is a referring State.
(1) On the commencement of this Part, the transitional assets of the Murray‑Darling Basin Commission immediately before that commencement:
(a) cease to be assets of the Murray‑Darling Basin Commission; and
(b) become assets of the Authority without any conveyance, transfer or assignment.
(2) The Authority becomes the successor in law in relation to the transitional assets.
(3) A
transitional asset is:
(a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; or
(b) any right, power, privilege or immunity, whether actual, contingent or prospective;
but does not include a right, power, privilege or immunity conferred by:
(c) an Act; or
(d) regulations or other subordinate legislation made under an Act; or
(e) the
Murray‑Darling Basin Act 1992 of New South Wales; or(f) the
Murray‑Darling Basin Act 1993 of Victoria; or(g) the
Murray‑Darling Basin Act 1996 of Queensland; or(h) the
Murray‑Darling Basin Act 1993 of South Australia; or(i) the former MDB Agreement.
(1) This Part does not affect:
(a) the ownership or control of River Murray Operations assets; or
(b) the application of the Agreement in relation to River Murray Operations assets.
(2)
River Murray Operations assets are:
(a) the works set out in Schedule A to the former MDB Agreement; and
(b) any other works the construction of which was authorised under subclause 50(1) of the former MDB Agreement (including any works authorised under Schedule C to the former MDB Agreement); and
(c) any other assets purchased with amounts paid by the Murray‑Darling Basin Commission under subclause 73(1) of the former MDB Agreement.
Note: The Agreement provides for how these assets are to be dealt with (including in accordance with directions given by the Authority).
(1) This Part does not affect:
(a) the ownership or control of Living Murray Initiative assets; or
(b) the application of the Living Murray Initiative in relation to Living Murray Initiative assets.
(2)
Living Murray Initiative assets are:
(a) water access rights, water delivery rights, irrigation rights or other similar rights relating to water; or
(b) interests in, or in relation to, such rights;
that are held by a person for the purposes of the Living Murray Initiative, but do not include the legal title to such rights or interests if the legal title was held by the Murray‑Darling Basin Commission in its own name immediately before the commencement of this Part.
(1) On the commencement of this Part, the transitional liabilities of the Murray‑Darling Basin Commission immediately before that commencement:
(a) cease to be liabilities of the Murray‑Darling Basin Commission; and
(b) become liabilities of the Authority without any conveyance, transfer or assignment.
(2) The Authority becomes the successor in law in relation to the transitional liabilities.
(3) A
transitional liability is any liability, duty or obligation, whether actual, contingent or prospective, but does not include a liability, duty or obligation imposed by:
(a) an Act; or
(b) regulations or other subordinate legislation made under an Act; or
(c) the
Murray‑Darling Basin Act 1992 of New South Wales; or(d) the
Murray‑Darling Basin Act 1993 of Victoria; or(e) the
Murray‑Darling Basin Act 1996 of Queensland; or(f) the
Murray‑Darling Basin Act 1993 of South Australia; or(g) the former MDB Agreement.
(4) To avoid doubt, this section does not apply to liabilities that relate to River Murray Operations assets or Living Murray Initiative assets, except to the extent that they are liabilities of the Murray‑Darling Basin Commission immediately before the commencement of this Part.
Note: The Agreement provides for the Basin States to indemnify the Authority for liabilities that were, before the commencement of this Part, liabilities of the Murray‑Darling Basin Commission relating to River Murray Operations assets.
(1) This section applies if:
(a) any legal or equitable estate or interest in real property, whether actual, contingent or prospective (a
real property asset ), vests in the Authority under this Part; and(b) there is lodged, with the Registrar of Titles or other proper officer of the State or Territory in which the real property asset is situated, a certificate that:
(i) is signed by the Minister; and
(ii) identifies the real property asset, whether by reference to a map or otherwise; and
(iii) states that the real property asset has become vested in the Authority under this Part.
(2) The Registrar of Titles or other officer may:
(a) register the matter in a way that is the same as, or similar to, the way in which dealings in real property assets of that kind are registered; and
(b) deal with, and give effect to, the certificate.
(3) A certificate made under paragraph (1)(b) is not a legislative instrument
.
(1) This section applies if:
(a) any transitional asset other than a real property asset vests in the Authority under this Part; and
(b) there is lodged, with the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned, a certificate that:
(i) is signed by the Minister; and
(ii) identifies the transitional asset; and
(iii) states that the transitional asset has become vested in the Authority under this Part.
(2) The person or authority may:
(a) deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and
(b) make such entries in the register as are necessary having regard to the effect of this Part.
(3) A certificate made under paragraph (1)(b) is not a legislative instrument
.
(1) If any proceedings to which:
(a) the Murray‑Darling Basin Commission; or
(b) a person in the person’s capacity as the President or a Commissioner;
was a party were pending in any court or tribunal immediately before the commencement of this Part, from that commencement the Authority is substituted for the Murray‑Darling Basin Commission or the person as a party to the proceedings.
(2) The
President is the person appointed in accordance with subclause 20(1) of the former MDB Agreement, and includes a Deputy President appointed under subclause 20(3) (in the capacity of Deputy President or acting President).(3) A
Commissioner is a person appointed in accordance with subclause 20(2) of the former MDB Agreement, and includes a Deputy Commissioner appointed under that subclause.Note: The Agreement provides for the Basin States to indemnify the Authority for a share of the costs associated with, or arising from, proceedings covered by this section.
If a right to sue a person, in the person’s capacity as the President or a Commissioner, existed immediately before the commencement of this Part, but had not been exercised, from that commencement the right to sue:
(a) ceases to be a right to sue the person; and
(b) becomes a right to sue the Authority.
Note: The Agreement provides for the Basin States to indemnify the Authority for a share of the costs associated with rights covered by this section.
If a person’s right to sue, in the person’s capacity as the President or a Commissioner, existed immediately before the commencement of this Part, but had not been exercised, from that commencement the right to sue:
(a) ceases to be a right of the person; and
(b) becomes a right of the Authority.
(1) On the commencement of this Part, each record or document that was in the custody of the Murray‑Darling Basin Commission immediately before that commencement is to be transferred into the custody of the Authority.
(2) If, immediately before the commencement of this Part, the Murray‑Darling Basin Commission owed a duty of confidence to a person in relation to a record or document transferred under this section, the Authority owes the same duty of confidence to the person after the transfer.
(1) If a transitional instrument is one or more of the following:
(a) an instrument that was made by the Murray‑Darling Basin Commission;
(b) an instrument to which the Murray‑Darling Basin Commission was a party;
(c) an instrument that was given to, or in favour of, the Murray‑Darling Basin Commission;
(d) an instrument under which any right or liability accrues or may accrue to the Murray‑Darling Basin Commission;
(e) any other instrument in which a reference is made to the Murray‑Darling Basin Commission;
it continues to have effect from the commencement of this Part as if:
(f) references in the transitional instrument to the Murray‑Darling Basin Commission (however described) were references to the Authority; and
(g) references in the transitional instrument to the former Murray‑Darling Basin Ministerial Council (however described) were references to the Murray‑Darling Basin Ministerial Council; and
(h) references in the transitional instrument to the contracting governments under the former MDB Agreement (however described) were references to the contracting governments under the Agreement; and
(i) in the case of a protocol made under a Schedule to the former MDB Agreement:
(i) references in the protocol to the former MDB Agreement were references to the Agreement; and
(ii) references in the protocol to provisions of, or Schedules to, the former MDB Agreement were references to the corresponding provisions of, or Schedules to, the Agreement; and
(iii) references in the protocol to other protocols made under Schedules to the former MDB Agreement were references to the corresponding protocols made under Schedules to the Agreement.
(2) However, subsection (1) does not apply to a transitional instrument specified in the regulations.
(3) If the regulations specify a transitional instrument for the purposes of subsection (2), the regulations may also provide one or more of the following:
(a) that the transitional instrument has effect as if references in the transitional instrument to the Murray‑Darling Basin Commission (however described) were references as specified in the regulations;
(b) that the transitional instrument has effect as if references in the transitional instrument to the former Murray‑Darling Basin Ministerial Council (however described) were references as specified in the regulations;
(c) that the transitional instrument has effect as if references in the transitional instrument to the contracting governments (however described) were references as specified in the regulations;
(d) in the case of a protocol made under a Schedule to the former MDB Agreement—that the transitional instrument has effect as if references to one or more of the following:
(i) the former MDB Agreement;
(ii) provisions of, or Schedules to, the former MDB Agreement;
(iii) other protocols made under Schedules to the former MDB Agreement;
were references as specified in the regulations.
(4) A
transitional instrument is:
(a) an instrument of a legislative character; or
(b) an instrument of an administrative character (including a resolution made by the Murray‑Darling Basin Commission); or
(c) a contract, arrangement or understanding;
that was in force immediately before the commencement of this Part, but does not include an Act, a State Act or an Act of a Territory.
(1) If, before the commencement of this Part, a thing was done by or in relation to the Murray‑Darling Basin Commission, or a committee of the Murray‑Darling Basin Commission, under:
(a) a provision (the
authorising provision ) of an Act, other than a provision of the MDB Act; or(b) a provision (the
authorising provision ) of an instrument made under a provision of an Act, other than a provision of the MDB Act;then the thing done has effect from that commencement as if it had been done by or in relation to the Authority, or the corresponding committee of the Authority, under the authorising provision as in force from that commencement.
(2) However, if the thing done is included in a class of things specified in the regulations, it has effect from that commencement as if it had been done by or in relation to the person or body specified in the regulations under the authorising provision as in force from that commencement.
(3) This section does not change the time at which the thing was actually done.
(4) The regulations may:
(a) provide that this section does not apply to a specified class of things done; or
(b) clarify how a thing has effect as mentioned in subsection (1) or (2).
(1) If:
(a) a thing was done before the commencement of this Part under a provision of the former MDB Agreement, by or in relation to, or pursuant to a resolution of, a body or person; and
(b) the thing still had effect immediately before that commencement; and
(c) the regulations specify:
(i) a provision of the Agreement to be the corresponding provision to the provision referred to in paragraph (a); and
(ii) in relation to that corresponding provision, a body or person to be the corresponding body or person to the body or person referred to in that paragraph;
the thing done has effect from that commencement as if it had been done under the corresponding provision by or in relation to, or pursuant to a resolution of, the corresponding body or person.
(2) Regulations made for the purposes of paragraph (1)(c):
(a) may specify:
(i) a part of a provision of the Agreement to be the corresponding provision to a provision referred to in paragraph (1)(a); or
(ii) a provision of the Agreement, or a part of a provision of the Agreement, to be the corresponding provision to a part of a provision referred to in paragraph (1)(a); and
(b) may specify different corresponding bodies or persons in relation to different parts of a provision of the Agreement.
This subsection may be applied in relation to the different ways in which a provision can operate as if each of those ways were a different part of the provision.
(3) If:
(a) a thing was done before the commencement of this Part under a provision of the former MDB Agreement, by or in relation to, or pursuant to a resolution of, the Murray‑Darling Basin Commission; and
(b) the thing still had effect immediately before that commencement; and
(c) the provision has a corresponding provision in the Agreement; and
(d) subsection (1) does not apply;
the thing done has effect from that commencement as if it had been done under the corresponding provision by or in relation to, or pursuant to a resolution of, the Authority.
(4) However, subsection (3) does not apply to a thing specified in the regulations.
(5) The application of subsection (1), (2) or (3) to the making of an instrument is not taken, for the purposes of the
Legislative Instruments Act 2003 , to constitute the making of a legislative instrument by:
(a) in the case of subsection (1) or (2)—the corresponding body or person referred to in that subsection; or
(b) in the case of subsection (3)—the Authority.
(6) This section applies to protocols to the former MDB Agreement as if they were provisions of the former MDB Agreement, and applies to protocols to the Agreement as if they were provisions of the Agreement.
If:
(a) the Murray‑Darling Basin Commission established a committee before the commencement of this Part; and
(b) the committee was in existence immediately before that commencement;
the committee continues in existence after that commencement as if the Authority had, on that commencement, established it under section 203 and appointed its members under section 204.
(1) For the purposes of this Act and the Agreement, the corporate plan of the Murray‑Darling Basin Commission in force immediately before the commencement of this Part (the
Commission’s corporate plan ) is taken, from that commencement:
(a) to be a corporate plan approved by the Murray‑Darling Basin Ministerial Council under clause 34 of the Agreement; and
(b) to be included, under paragraph 213A(3)(a), in any corporate plan of the Authority that was in force immediately before that commencement.
(2) The Authority must, as soon as practicable after that commencement:
(a) review the Commission’s corporate plan; and
(b) if the Authority considers it necessary or desirable for there to be a significant variation to the plan—prepare a draft amendment, and provide it to the Basin Officials Committee, in accordance with the Agreement.
(1) The following amounts (the
transitional amounts ) must be credited to the Murray‑Darling Basin Special Account:
(a) amounts that, immediately before the commencement of this Part, are in bank accounts referred to in subclause 79(1) of the former MDB Agreement;
(b) all other amounts in the Murray‑Darling Basin Commission’s possession, custody or control immediately before that commencement.
(2) If:
(a) under an arrangement (other than the former MDB Agreement), a State paid the Murray‑Darling Basin Commission an amount for the purposes of the performance of the Murray‑Darling Basin Commission’s functions; and
(b) all or part of that amount is a transitional amount;
then:
(c) for the purposes of spending the transitional amount, the functions of the Authority include those functions of the Murray‑Darling Basin Commission; and
(d) the Authority must spend the transitional amount in accordance with that arrangement and not otherwise.
(3) Sections 210 and 211 have effect subject to this section.
(1) No stamp duty or other tax is payable under a law of a State or a Territory in respect of either of the following matters (
exempt matters ):
(a) the vesting of a transitional asset or transitional liability under this Part;
(b) the operation of this Part in any other respect;
or anything connected with an exempt matter.
(2) The Minister may certify in writing:
(a) that a specified matter is an exempt matter; or
(b) that a specified thing is connected with a specified exempt matter.
(3) A certificate made under subsection (2) is not a legislative instrument.
(4) The Minister may, by legislative instrument, certify in writing:
(a) that matters included in a specified class are exempt matters; or
(b) that things included in a specified class are connected with exempt matters included in a specified class.
(5) In all courts, and for all purposes (other than for the purposes of criminal proceedings), a certificate under subsection (2) or (4) is prima facie evidence of the matters stated in the certificate.
A document that appears to be a certificate made or issued under a particular provision of this Part:
(a) is taken to be such a certificate; and
(b) is taken to have been properly made or issued;
unless the contrary is established.
(1) The regulations may provide for other transitional measures relating to the replacement of:
(a) the Murray‑Darling Basin Commission; or
(b) the former MDB Agreement; or
(c) the former Murray‑Darling Basin Ministerial Council.
(2) Without limiting subsection (1), regulations under that subsection may provide for powers of the Murray‑Darling Basin Commission or the former Murray‑Darling Basin Ministerial Council:
(a) that were exercisable under the former MDB Agreement; and
(b) that are not otherwise provided for in this Act;
to be exercised by the Authority, the Basin Officials Committee or the Murray‑Darling Basin Ministerial Council.
(3) Without limiting subsection (1), regulations under that subsection may provide for the ownership or control of weir no.5 Redbank and weir no.7 Maude.
(4) Regulations made for the purposes of subsection (3) have effect despite section 239D.
Insert:
In this Act:
Commonwealth water legislation means this Act, the regulations or any other instrument made under this Act.
(1) The Commonwealth water legislation is not intended to exclude or limit the concurrent operation of any law of a State.
(2) If:
(a) an act or omission of a person is both an offence against the Commonwealth water legislation and an offence against the law of a State; and
(b) the person is convicted of either of those offences;
the person is not liable to be convicted of the other of those offences.
(3) This section does not apply to a law of a State if there is a direct inconsistency between the Commonwealth water legislation and that law of a State.
Note: Section 250D avoids direct inconsistency arising in some cases by limiting the operation of the Commonwealth water legislation.
(1) Subsection (2) applies if a provision of a law of a referring State declares a matter to be an excluded matter for the purposes of this section in relation to:
(a) the whole of the Commonwealth water legislation; or
(b) a specified provision of the Commonwealth water legislation; or
(c) the Commonwealth water legislation other than a specified provision; or
(d) the Commonwealth water legislation otherwise than to a specified extent.
(2) By force of this subsection:
(a) none of the provisions of the Commonwealth water legislation (other than this section) applies in or in relation to the State with respect to the matter if the declaration is one to which paragraph (1)(a) applies; and
(b) the specified provision of the Commonwealth water legislation does not apply in or in relation to the State with respect to the matter if the declaration is one to which paragraph (1)(b) applies; and
(c) the provisions of the Commonwealth water legislation (other than this section and the specified provisions) do not apply in or in relation to the State with respect to the matter if the declaration is one to which paragraph (1)(c) applies; and
(d) the provisions of the Commonwealth water legislation (other than this section and otherwise than to the specified extent) do not apply in or in relation to the State with respect to the matter if the declaration is one to which paragraph (1)(d) applies.
(3) Subsection (2) does not apply to the declaration to the extent to which the regulations provide that that subsection does not apply to that declaration.
(4) In this section:
matter includes act, omission, body, person or thing.
Section overrides other provisions of the Commonwealth water legislation
(1) This section has effect despite anything else in the Commonwealth water legislation.
Section does not deal with provisions capable of concurrent operation
(2) This section does not apply to a provision of a law of a referring State that is capable of concurrent operation with the Commonwealth water legislation.
Note: This kind of provision is dealt with by section 250B.
When this section applies to a provision of a State law
(3) This section applies to the interaction between a provision (the
State provision ) of a law of a referring State and a provision (theCommonwealth provision ) of the Commonwealth water legislation only if the State provision is declared by a law of the State to be a Commonwealth water legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision).
State provision specifically permitting, authorising or requiring act or thing to be done
(4) The Commonwealth provision does not:
(a) prohibit the doing of an act; or
(b) impose a liability (whether civil or criminal) for doing an act;
if the State provision specifically permits, authorises or requires the doing of that act.
Other cases
(5) The Commonwealth provision does not operate in or in relation to the State to the extent necessary to ensure that no inconsistency arises between:
(a) the Commonwealth provision; and
(b) the State provision to the extent to which the State provision would, but for this subsection, be inconsistent with the Commonwealth provision.
Note 1: The State provision is not covered by this subsection if subsection (4) applies to the State provision: if that subsection applies there would be no potential inconsistency to be dealt with by this subsection.
Note 2: The operation of the State provision will be supported by section 250B to the extent to which it can operate concurrently with the Commonwealth provision.
(6) Subsections (4) and (5) do not apply in relation to the State provision to the extent to which the regulations provide that those subsections do not apply in relation to the State provision.
(1) The regulations may modify the operation of the Commonwealth water legislation so that:
(a) provisions of the Commonwealth water legislation do not apply to a matter that is dealt with by a law of a referring State specified in the regulations; or
(b) no inconsistency arises between the operation of a provision of the Commonwealth water legislation and the operation of a provision of a law of a referring State specified in the regulations.
(2) Without limiting subsection (1), regulations made for the purposes of that subsection may provide that a provision of the Commonwealth water legislation:
(a) does not apply to:
(i) a person specified in the regulations; or
(ii) a body specified in the regulations; or
(iii) circumstances specified in the regulations; or
(iv) a person or body specified in the regulations in the circumstances specified in the regulations; or
(b) does not prohibit an act to the extent to which the prohibition would otherwise give rise to an inconsistency with a law of a referring State; or
(c) does not require a person to do an act to the extent to which the requirement would otherwise give rise to an inconsistency with a law of a referring State; or
(d) does not authorise a person to do an act to the extent to which the conferral of that authority on the person would otherwise give rise to an inconsistency with a law of a referring State; or
(e) does not impose an obligation on a person to the extent to which complying with that obligation would require the person not to comply with an obligation imposed on the person under a law of a referring State; or
(f) authorises a person to do something for the purposes of the Commonwealth water legislation that the person:
(i) is authorised to do under a law of a referring State; and
(ii) would not otherwise be authorised to do under the Commonwealth water legislation; or
(g) will be taken to be satisfied if a law of a referring State is satisfied.
(3) In this section:
matter includes act, omission, body, person or thing.
Insert:
Note: See section 18A.
PART I ‑ INTERPRETATION
1. Purpose
2. Definitions
3. Interpretation
PART II — APPROVAL, AMENDMENT AND ENFORCEMENT
4. Revocation of Former Agreement
5. Commencement of Agreement and Amendments to Agreement
6. Parties to Provide for Enforcement of Agreement
PART III ‑ THE MINISTERIAL COUNCIL
7. Establishment of Ministerial Council
8. Membership of the Ministerial Council
9. Functions of the Ministerial Council
10. Ministerial Council May Direct Committee
11. Conferral of functions by Ministerial Council
12. Ministerial Council May Require Committee and Authority to Report
13. Proceedings of the Ministerial Council
14. Resolutions Other than at Meetings
15. Appointment of Committees
16. Basin Community Committee to Advise Ministerial Council
PART IV — THE COMMITTEE
DIVISION 1 — ESTABLISHMENT AND MEMBERSHIP OF THE COMMITTEE
17. Establishment of Basin Officials Committee
18. Membership of the Committee
19. Appointment of Chair of the Committee
20. Appointment of Other Members of the Committee
21. Acting Members of the Committee
22. Period of Appointment
23. Standing Obligation to Disclose Interests
24. Obligation to Disclose Interests Before Considering a Particular Matter
25. Chief Executive and Authority Chair May Attend Meetings
DIVISION 2 — FUNCTIONS AND POWERS OF THE COMMITTEE
26. Functions and Powers of the Committee
DIVISION 3 — DECISION MAKING BY THE COMMITTEE
27. Proceedings of the Committee
28. Resolutions Other than at Meetings
PART V ‑ THE AUTHORITY
29. Functions, Powers and Duties of the Authority
30. Authority’s Functions in Relation to River Operations
31. Objectives and outcomes for river operations
32. Continuation of Resolutions, Practices and Procedures Relating to River Operations
33. Referrals and Determinations in Relation to River Operations
34. Annual Corporate Plan
35. Amendment of Annual Corporate Plan
PART VI — APPLICATION OF AGREEMENT TO QUEENSLAND AND THE AUSTRALIAN CAPITAL TERRITORY
36. Application of Agreement to Queensland and the Australian Capital
37. Provisions Not Applying to Queensland
38. Provisions not applying to the Australian Capital Territory
39. Powers of Ministerial Council and Committee to make determinations
40. Factors to be Considered by Ministerial Council or Committee
41. Application of Previous Ministerial Council Decisions to Queensland
42. Application of previous Ministerial Council decisions to the Australian Capital Territory
PART VII ‑ INVESTIGATION, MEASUREMENT AND MONITORING
(b) has applied that framework by, and at all times since:
(i) 30 June 2009; or
(ii) a later day specified in the regulations.
Note: Clauses 48 to 50 of the National Water Initiative and clause 10.1.3 of the Agreement on Murray‑Darling Basin Reform of 3 July 2008 are set out in Schedule 3A.
(2) The day specified in regulations made for the purposes of subparagraph (1)(b)(ii) must not be later than the day on which the Basin Plan first takes effect.
(2A) The Minister is taken, on the commencement of this section, to have made a determination under subsection (1) that New South Wales is a State to which this section applies.
(3) The Minister must, in writing, revoke a determination made under subsection (1) if satisfied that there is no longer a State water management law of the State that gives effect to that framework.
(4) In considering whether to make a determination under subsection (1), or revoke it under subsection (3), the Minister may ask the National Water Commission for advice.
(5) A determination made under subsection (1), or a revocation under subsection (3), is not a legislative instrument.
Insert:
(1A) In working out the amount of the Commonwealth Government policy component or the new knowledge component, any reduction that is a result of matters referred to in clause 48 of the National Water Initiative is to be disregarded.
Note: Clause 48 of the National Water Initiative is set out in Part 1 of Schedule 3A.
After “if” (first occurring), insert “the Basin State in which the water resource plan area is located is not a State to which section 74A applies, and”.
Add:
; and (c) if the Basin State in which the water resource plan area is located is a State to which section 74A applies—the Commonwealth’s share of the reduction also includes so much of the new knowledge component (if any) as is worked out under subsection (3A).
Insert:
(3A) The amount to be included in the Commonwealth’s share of the reduction under paragraph (2)(c) is to be worked out on the basis that, for reductions in the long‑term average sustainable diversion limit for the water resources, or that part of the water resources, of the water resource plan area in any 10 year period, the Commonwealth’s share of the reductions:
(a) does not include so much of new knowledge components of those reductions as does not exceed (in aggregate) 3% of the relevant diversion limit; and
(b) includes all of so much of the new knowledge components of those reductions as exceeds (in aggregate) 3% of the relevant diversion limit.
After “subsection (3)”, insert “or (3A)”.
Repeal the paragraph, substitute:
(b) on or after:
(i) if the Basin State in which the water resource plan area is located is a State to which section 74A applies, and a transitional water resource plan or an interim water resource plan has effect for the area—the day on which that plan ceases to have effect; or
(ii) in any other case—1 January 2015.
After “Basin Plan”, insert “first”.
After “Basin Plan” (first occurring), insert “first”.
Before “value”, insert “market”.
Insert:
(3A) In working out the amount of the Commonwealth Government policy component or the new knowledge component, any reduction that is a result of matters referred to in clause 48 of the National Water Initiative is to be disregarded.
Note: Clause 48 of the National Water Initiative is set out in Part 1 of Schedule 3A.
After “Basin Plan”, insert “first”.
After “Basin Plan” (first occurring), insert “first”.
Before “value”, insert “market”.
Repeal the Part.
Add:
(5) Paragraph (4)(a) does not prevent the Commonwealth Environmental Water Holder making available water from the Commonwealth environmental water holdings for the purposes of protecting or restoring the environmental assets of an area outside the Murray‑Darling Basin so as to:
(a) give effect to an agreement between the Commonwealth and one or more States; and
(b) return water to the Snowy River.
Repeal the subsection, substitute:
(3) However,
Commonwealth environmental water holdings do not include:
(a) water access rights, water delivery rights, irrigation rights or other similar rights relating to water; or
(b) interests in, or in relation to, such rights;
that:
(c) the Commonwealth (including any agency of the Commonwealth) holds for the purpose of the use of water by the Commonwealth (including any agency of the Commonwealth) in the performance of functions that are not related to its functions of water management under this Act; or
(d) the Commonwealth (including any agency of the Commonwealth) holds for the purposes of the Living Murray Initiative (including rights or interests that vested in the Authority under section 239C having been held for that purpose by the Murray‑Darling Basin Commission before the commencement of Part 10A).
Omit “a person’s”, substitute “an individual’s”.
Omit “person’s”, substitute “individual’s”.
Repeal the definition, substitute:
water information means:
(a) any raw data, or any value added information product, that relates to:
(i) the availability, distribution, quantity, quality, use, trading or cost of water; or
(ii) water access rights, water delivery rights or irrigation rights; or
(b) any metadata relating to data of a kind referred to in paragraph (a);
and includes contextual information relating to water (such as land use information, geological information and ecological information).
After “Part 4” (wherever occurring), insert “or 4A”.
Repeal the notes, substitute:
Note: The Authority may adopt Basin State records, and request the Basin States to take these measurements etc. (see subsection (2)).
Insert:
(ea) to develop, in consultation with the Basin States, an integrated water model for the Murray‑Darling Basin;
Repeal the paragraph, substitute:
(g) to make recommendations to:
(i) the Commonwealth; or
(ii) a Basin State; or
(iii) an agency of the Commonwealth or a Basin State;
about any matter (including the carrying out of any works or other measures by the Commonwealth, State or agency) that the Authority considers could in any way affect the quality or quantity of the Basin water resources;
Add:
Note: The Authority also has the functions conferred on it by Part 1A (The Murray‑Darling Basin Agreement) and Part 2A (Critical human water needs).
Omit “the Murray‑Darling Basin Commission,”.
Repeal the paragraph.
Omit “the Basin Officials Committee”, substitute “the other members of the Murray‑Darling Basin Ministerial Council, and inform the Basin Officials Committee,”.
Repeal the section, substitute:
(1) The Authority has power to do anything that is necessary or convenient to be done for or in connection with the performance of its functions.
Note 1: The Authority’s functions are set out in section 172, and in Part 1A (The Murray‑Darling Basin Agreement) and Part 2A (Critical human water needs).
Note 2: The Authority also has the powers conferred on it by Parts 1A and 2A.
(2) The Authority’s powers include, but are not limited to, the following powers:
(a) the power to acquire, hold and dispose of real and personal property;
(b) the power to enter into contracts.
Note 1: Under paragraph 176(1)(c), the Authority may also sue and be sued in its corporate name.
Note 2: Acquisitions of interests in land will be done in accordance with the
Lands Acquisition Act 1989 and theFinancial Management and Accountability Act 1997 .Note 3: The Chief Executive of the Authority may also enter into contracts on behalf of the Commonwealth. See section 44 of the
Financial Management and Accountability Act 1997 .(3) Any real or personal property held by the Authority is held for and on behalf of the Commonwealth.
Note: This subsection does not have the effect of transferring property to the Authority.
(4) Any money received by the Authority is received for and on behalf of the Commonwealth.
Note: This subsection does not have the effect of transferring money to the Authority.
(5) To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (3).
Add:
Note: Clause 145 of the Agreement provides for the Commonwealth to recover from the Basin States a proportion of any payment made by the Commonwealth in respect of any act or omission of the Authority in the execution in good faith of the powers vested in the Authority by or under the Agreement.
After “directions”, insert “, which must be consistent with the objects of this Act,”.
Add:
; (e) the performance of a function that is conferred under Part 1A or 2A.
Insert:
(aa) a Chief Executive;
Omit “Authority Chair”, substitute “Chief Executive”.
Add:
(8) An act of the Authority is not invalid because of a defect or irregularity in connection with the appointment of the Chief Executive, Authority Chair or any other member of the Authority.
Before “An Authority member”, insert “(1)”.
Add:
(2) The sum of an Authority member’s first appointment period and any period or periods of re‑appointment must not exceed 8 years (not including any periods of acting appointment).
Insert:
Acting Chief Executive
(1A) The Minister may appoint a member of the Authority staff who is an SES employee to act as the Chief Executive:
(a) during a vacancy in the office of the Chief Executive, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chief Executive:
(i) is absent from duty or Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
After “other than” (wherever occurring), insert “the Chief Executive or”.
Note: The heading to subsection 180(2) is altered by inserting “
Chief Executive or ” after “other than ”.
Omit “Authority Chair”, substitute “Chief Executive”.
Omit “Authority Chair”, substitute “Chief Executive”.
Omit “Authority Chair” (wherever occurring), substitute “Chief Executive”.
Omit “Authority Chair”, substitute “Chief Executive”.
Omit “if the member is not the Authority Chair—”.
Omit “Authority Chair”, substitute “Chief Executive”.
Insert:
(ea) if the member is not the Chief Executive—the member engages, except with the Minister’s approval, in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office; or
122
Subdivision D of Division 3 of Part 9 (heading) Repeal the heading, substitute:
Repeal the subsection.
Omit “(2) The”, substitute “In addition to the functions that the Agreement confers on the Basin Officials Committee, the”.
Note: The heading to subsection 201(2) is deleted.
Omit “resources;”, substitute “resources.”.
Repeal the paragraphs.
Repeal the subsections.
Insert:
(1) The Chair of the Basin Officials Committee is to be appointed by the Minister by written instrument.
Note: For re‑appointment, see subsection 33(4A) of the
Acts Interpretation Act 1901 .(2) To be eligible for appointment as the Chair of the Basin Officials Committee, an individual must be the Secretary of the Department or an SES employee.
(3) The appointment of the Chair of the Basin Officials Committee is not invalidated merely because of a defect or irregularity in connection with the appointment.
(1) The Minister may, by written instrument, appoint an individual to act as the Chair of the Basin Officials Committee.
(2) To be eligible for appointment to act as the Chair of the Basin Officials Committee, an individual must be the Secretary of the Department or an SES employee.
(3) An individual’s appointment to act as the Chair of the Basin Officials Committee:
(a) does not cease to have effect merely because the Chair’s appointment ceases to have effect; and
(b) if the Chair is replaced by the appointment of another Chair—continues in effect in relation to the new Chair.
(4) An individual appointed to act as the Chair of the Basin Officials Committee may act as, and perform the functions and exercise the powers of, the Chair:
(a) during a vacancy in the office of the Chair, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chair:
(i) is absent from duty or Australia; or
(ii) is, for any reason, unable to attend a meeting of the Basin Officials Committee; or
(iii) is, for any reason, unable to perform the duties of the office.
(5) Anything done by or in relation to an individual purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) The Chair of the Basin Officials Committee (including an acting Chair) holds office for the period specified in his or her instrument of appointment.
(2) This section does not affect the operation of section 33A of the
Acts Interpretation Act 1901 .
Add:
Note: The Basin Community Committee also has the functions conferred on it by the Agreement (see section 18F).
130
Subsection 202(7) (at the end of the definition of water user ) Add:
; or (e) is engaged in interception activities with a significant impact (whether on an activity‑by‑activity basis or cumulatively) on water resources.
After “advisory committee”, insert “(other than the Basin Officials Committee)”.
Repeal the subsection.
After “an individual must”, insert “be nominated by the Murray‑Darling Basin Ministerial Council and must”.
After “advisory committee”, insert “(other than the Basin Officials Committee)”.
Insert:
(1A) However, the Basin Community Committee is not subject to direction under subsection (1) in relation to its functions, powers and duties under section 18F.
Omit “the Basin Officials Committee or”.
Omit “Authority Chair” (wherever occurring), substitute “Chief Executive”.
Omit “Authority Chair”, substitute “Chief Executive”.
Omit “Authority Chair”, substitute “Chief Executive”.
Note: The heading to section 208 is altered by omitting “
Chair ” and substituting “Chief Executive ”.
Omit “Chair’s”, substitute “Chief Executive’s”.
Omit “Commonwealth”, substitute “Authority”.
Repeal the paragraph.
Omit “Commonwealth”, substitute “Authority”.
Insert:
(da) interest received by the Commonwealth from the investment of an amount standing to the credit of the Account;
Omit “Commonwealth”, substitute “Authority”.
Insert:
(ea) amounts received by the Authority in relation to assets that vest in the Authority under section 239C;
(eb) amounts received by the Authority as refunds or repayments of the whole or part of amounts paid by the Murray‑Darling Basin Commission before the commencement of Schedule 1 to the
Water Amendment Act 2008 ;
Add:
; (g) amounts not otherwise covered by this section that are received by the Authority in connection with the performance of the Authority’s functions under this Act or the regulations.
Omit “Commonwealth”, substitute “Authority”.
Repeal the subsection, substitute:
(5) A fee must not be such as to amount to taxation.
Insert:
(1) The Authority must prepare a corporate plan at least once a financial year and give it to the Minister.
(2) The corporate plan must cover a period of 4 financial years.
(3) The corporate plan for a financial year must:
(a) include the corporate plan approved by the Murray‑Darling Basin Ministerial Council under the Agreement in relation to that year; and
(b) set out:
(i) the objectives of the Authority; and
(ii) the planned activities of the Authority for the 4 financial years relating to its functions under this Act (other than Part 1A); and
(iii) the budget for those planned activities.
(4) The Authority must keep the Minister informed about matters that might significantly affect the achievement of the objectives set out in the corporate plan.
(1) The Authority may at any time vary the corporate plan on its own initiative.
(2) The Authority must not vary the part of the plan that is the corporate plan approved by the Murray‑Darling Basin Ministerial Council under the Agreement, unless the variation has been approved in accordance with the Agreement.
(3) The Authority must give a copy of the variation to the Minister.
Omit “Authority Chair”, substitute “Chief Executive”.
After “the Minister”, insert “, and to each other member of the Murray‑Darling Basin Ministerial Council,”.
Omit “Authority Chair”, substitute “Chief Executive”.
Add:
; (e) information about the Authority’s activities during the year, including information about:
(i) implementation of the Authority’s corporate plan; and
(ii) any other matters on which the Authority is required to report under the Agreement.
Repeal the subsection.
Omit “or a referring State”.
Repeal the heading, substitute:
Omit “Subsection 55(2)”, substitute “Subsection 65(6)”.
Omit “the Basin’s”.
Insert:
The Commonwealth must make a copy of the dataset referred to in the definition of
Murray‑Darling Basin in section 18A available on the Department’s website.
Insert:
(1) If a Basin State is not a referring State, water charge rules apply in the State to a regulated water charge if one or more of the paragraphs in subsection (2) are satisfied.
(2) This subsection applies if:
(a) the person imposing the charge, or making the demand, is a constitutional corporation; or
(b) the person on whom the charge is imposed, or from whom the charge is demanded, is a constitutional corporation; or
(c) the charge is imposed, or payment of the charge is demanded, in the course of trade and commerce between the States or between a State and a Territory; or
(d) the person who imposes, or demands payment of, the charge does so in a Territory; or
(e) the charge relates to:
(i) a water resource in a Territory; or
(ii) water service infrastructure in a Territory; or
(iii) tradeable water rights in relation to a water resource in a Territory; or
(f) the charge is imposed, or payment of the charge is demanded, using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
(3) Subsection (2), and the paragraphs of that subsection, do not limit the operation (if any) that the water charge rules validly have apart from this section.
(1) If a Basin State is not a referring State, water market rules apply in the State to an act, or a failure to do an act, by an infrastructure operator that has an effect on:
(a) the ability of a person who holds an irrigation right against the operator to obtain a water access entitlement; or
(b) the ability of a person who held an irrigation right against the operator to trade or transfer a water access entitlement;
if one or more of the paragraphs in subsection (2) are satisfied.
(2) This subsection applies if:
(a) the infrastructure operator or the person who holds, or held, the irrigation right is a constitutional corporation; or
(b) the act is done, or the failure to do the act occurs, in the course of trade and commerce between the States or between a State and a Territory; or
(c) the act is done, or the failure to do the act occurs, in a Territory; or
(d) the water access right, or the irrigation right, relates to a water resource in a Territory; or
(e) the act is done, or the failure to do the act occurs, using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
(3) Subsection (2), and the paragraphs of that subsection, do not limit the operation (if any) that the water market rules validly have apart from this section.
Insert:
Prior to licences being granted for subsidence mining operations on floodplains that have underlying groundwater systems forming part of the Murray-Darling system inflows, an independent expert study must be undertaken to determine the impacts of the proposed mining operations on the connectivity of groundwater systems, surface water and groundwater flows and water quality.
Add:
(3) Regulations made for the purposes of Part 7 may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification (including any omission, addition or substitution), any matter contained in a written instrument or other document:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time;
even if the written instrument or other document does not yet exist when the regulations are made.
(4) Subsection (3) has effect despite subsection 14(2) of the
Legislative Instruments Act 2003 .(5) If regulations made for the purposes of Part 7 make provision in relation to a matter by applying, adopting or incorporating a matter contained in a written instrument or other document, the Director of Meteorology must ensure that:
(a) the text of the matter applied, adopted or incorporated is made publicly available on the Bureau’s website, unless that text is set out in the regulations; and
(b) if the text of the matter is applied, adopted or incorporated as in force or existing from time to time—any subsequent amendments of that text are made publicly available on that website.
Repeal the Schedule.
164
Subparagraph 2(a)(ii) of Schedule 2 (second occurring) Renumber as subparagraph (iii).
Insert:
Note: See section 74A.
48.
Water access entitlement holders are to bear the risks of any reduction or less reliable water allocation, under theirwater access entitlements , arising from reductions to the consumptive pool as a result of:(i) seasonal or long‑term changes in climate; and
(ii) periodic natural events such as bushfires and drought.
49. The risks of any reduction or less reliable water allocation under a
water access entitlement , arising as a result of bona fide improvements in the knowledge of water systems’ capacity to sustain particular extraction levels are to be borne by users up to 2014. Risks arising under comprehensivewater plans commencing or renewed after 2014 are to be shared over each ten year period in the following way:i)
water access entitlement holders to bear the first 3% reduction in water allocation under awater access entitlement ;
ii) State/Territory governments and the Commonwealth Government to share one‑third and two‑thirds respectively reductions in water allocation under
water access entitlements of between 3% and 6%; andiii) State/Territory and Commonwealth governments to equally share reductions in water allocation under
water access entitlements greater than 6%. 50. Governments are to bear the risks of any reduction or less reliable water allocation that is not previously provided for, arising from changes in government policy (for example, new environmental objectives). In such cases, governments may recover this water in accordance with the principles for assessing the most efficient and cost effective measures for water recovery.
10.1.3 Commonwealth undertakes to use its best endeavours to enact legislation to amend Division 4 of Part 2 of the Water Act so that:
In respect of those Basin States who choose to apply the National Water Initiative risk assignment framework:
a) the Commonwealth’s share of a reduction in a long‑term average sustainable diversion limit includes, in any 10 year period, all of the new knowledge components of the reductions that exceed three per cent of the relevant diversion limit; and
b) for a water resource plan area in the Murray‑Darling Basin with a transitional or interim water resource plan, the Commonwealth will take responsibility for its share of the new knowledge component of a reduction in the long‑term average sustainable diversion limit for the water resources of that plan area arising after the transitional or interim water resource plan ceases to have effect.
(1) If:
(a) a person’s employment by the Murray‑Darling Basin Commission ended on the commencement of Schedule 1; and
(b) the person became an employee of the Authority on that commencement;
then:
(c) the Murray‑Darling Basin Commission is not required to pay the person an amount in relation to accrued leave that the person has not taken as at that commencement; and
(d) the Authority must recognise that accrued leave, in relation to the person’s employment with the Authority, as if it were leave in relation to periods of service with the Authority.
(2) This item does not apply in relation to long service leave.
(3) This item applies despite subsection 235(2) of the
Workplace Relations Act 1996 .
If a person’s employment by the Murray‑Darling Basin Commission ended on the commencement of Schedule 1, and the person became an employee of the Authority on that commencement:
(a) sections 11A, 11B and 11C of the
Long Service Leave Act 1976 of the Australian Capital Territory do not apply in relation to the person’s employment by the Murray‑Darling Basin Commission that ended on that commencement; andNote: This means the person’s long service leave entitlements are carried over to the person’s employment by the Authority (and not paid out under section 11A, 11B or 11C of the
Long Service Leave Act 1976 of the Australian Capital Territory).(b) the
Long Service Leave (Commonwealth Employees) Act 1976 does not apply in relation to the person’s employment by the Authority that started on that commencement; and(c) the
Long Service Leave Act 1976 of the Australian Capital Territory (theACT law ) applies in relation to the person’s employment by the Authority that started on that commencement; and(d) for the purposes of applying the ACT law:
(i) the person’s period of service with the Murray‑Darling Basin Commission that ended on that commencement; and
(ii) any other period of service of the person that, immediately before that commencement, was counted as service with the Murray‑Darling Basin Commission for the purposes of the application of the ACT law in relation to the person;
are taken to be the person’s period of service with the Murray‑Darling Basin Commission.
3
Authority staff engaged after the commencement of Schedule 1
(1) If:
(a) immediately after the commencement of Schedule 1, the Authority is, because of section 585 of the
Workplace Relations Act 1996 , bound by a collective agreement (within the meaning of that Act) that, immediately before that commencement, bound the Commission; and(b) a person is engaged as a member of the Authority staff after that commencement but before the Authority ceases, under that Act, to be bound by the collective agreement; and
(c) the person is not engaged as an SES employee; and
(d) the person is not a transferring employee within the meaning of Part 11 of that Act;
that Part applies in relation to the person as if the person were such a transferring employee in relation to the collective agreement.
(2) However:
(a) this section does not apply to the extent (if any) that the person’s terms and conditions of employment are provided for under a law of the Commonwealth; and
(b) this section ceases to apply to the person if the person becomes an SES employee of the Authority.
The person who, immediately before the commencement of Schedule 2, was acting as the Authority Chair is taken, from that commencement, to be the Chief Executive as if he or she had been appointed under section 178 of the
Water Act 2007 as amended by this Act.
5
Performance of Authority functions etc. before a quorum is appointed (1) Until this item ceases to apply under subitem (2):
(a) the Chief Executive may perform any of the functions of the Authority and exercise any of its powers; and
(b) anything done by the Chief Executive in performing those functions or exercising those powers is taken to have been done by the Authority.
(2) This item ceases to apply:
(a) at the end of the period of 6 months, or such longer period specified in the regulations, after the commencement of Schedule 2; or
(b) when sufficient members of the Authority have been appointed to constitute a quorum of members at a meeting of the Authority;
whichever happens first.
(3) Regulations for the purposes of paragraph (2)(a) must not specify a period exceeding 12 months.
(1) After the commencement of Schedule 1, a person who:
(a) is a member of the Authority staff; and
(b) was, immediately before that commencement, a person:
(i) authorised by the Murray‑Darling Basin Commission under section 14 of the
Murray‑Darling Basin Act 1992 of New South Wales; or(ii) authorised by the Murray‑Darling Basin Commission under section 13 of the
Murray‑Darling Basin Act 1993 of Victoria; or(iii) authorised by the Murray‑Darling Basin Commission under section 13 of the
Murray‑Darling Basin Act 1993 of South Australia;is taken to be an authorised officer.
(2) However, unless the person is appointed as an authorised officer under section 217 of the
Water Act 2007 as amended by this Act, he or she can only exercise the powers of an authorised officer to the extent that the powers are exercised in relation to the Authority’s functions under Part 1A of that Act.
The Authority is taken, immediately after the commencement of Schedule 1, to have delegated under section 199 of the
Water Act 2007 as amended by this Act all of its functions and powers under that Act (other than its functions and powers under Subdivisions E, F and G of Division 1 of Part 2) to the Chief Executive.
(1) The Commonwealth must indemnify:
(a) a person appointed in accordance with subclause 20(1) of the former MDB Agreement as the President; or
(b) a person appointed in accordance with subclause 20(3) of the former MDB Agreement as the Deputy President of the Murray‑Darling Basin Commission;
for any liability that he or she incurs for an act or omission of the person, before the commencement of Schedule 1, in the course of performing his or her duties as the President or Deputy President (including, in the case of the Deputy President, his or her duties when acting as the President).
Note: The Agreement provides for the Basin States to indemnify the Commonwealth for a share of the costs associated with any indemnity covered by this subitem.
(2) The Commonwealth must indemnify a Commissioner for any liability:
(a) to which subitem (1) does not apply; and
(b) that the Commissioner incurs for an act or omission of the Commissioner, before the commencement of Schedule 1, in the course of performing his or her duties as a Commissioner.
Note: The Agreement provides for the State in relation to whom the Commissioner was appointed to indemnify the Commonwealth for the costs associated with any indemnity covered by this subitem.
(3) The Commonwealth must indemnify an officer (within the meaning of the former MDB Agreement) for any liability that the officer incurs for an act or omission of the officer, before the commencement of Schedule 1, in the course of performing his or her duties as an officer.
Note: The Agreement provides for the Basin States to indemnify the Commonwealth for a share of the costs associated with any indemnity covered by this subitem.
(4) This item only applies if the liability arose from an act or omission in good faith.
(1) Without limiting subsection 256(1) of the
Water Act 2007 , regulations under that subsection may provide for:
(a) the transfer of employees from the Murray‑Darling Basin Commission to the Authority, including the preservation of some or all of the entitlements and obligations of the employees of the Murray‑Darling Basin Commission; or
(b) staffing procedures of the Murray‑Darling Basin Commission to apply, or to continue to apply, in relation to:
(i) processes begun before, but not completed by, the time this Part commences; or
(ii) things done by, for or in relation to the Murray‑Darling Basin Commission or an employee of the Murray‑Darling Basin Commission before that time; or
(c) staffing procedures of the Authority to apply in relation to:
(i) processes begun before, but not completed by, that time; or
(ii) things done by, for or in relation to the Murray‑Darling Basin Commission before that time.
(2) Regulations made for the purposes of this item have effect despite the
Public Service Act 1999 .
(3) In this item:
staffing procedures includes procedures and policies related to:
(a) recruitment, promotion or performance management; or
(b) inefficiency, misconduct, forfeiture of position, fitness for duty or loss of essential qualifications; or
(c) disciplinary action, grievance processes or reviews of or appeals against staffing decisions; or
(d) transfers, resignations or termination of employment; or
(e) leave.
Insert:
and (c) an Indigenous water subcommittee, to guide the consideration of Indigenous matters relevant to the Basin’s water resources;
Add:
; and (c) an individual with expertise in Indigenous matters relevant to the Basin’s water resources.
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