Explanatory Statement

Issued by the authority of the Minister for the Environment and Water

Water Act 2007

Water Amendment (Murray-Darling Basin Agreement) Regulations 2026

Legislative Authority

The Water Act 2007 (the Act) provides the national legislative framework for the sustainable management of water resources within or beneath the Murray-Darling Basin (the Basin). The Murray-Darling Basin Agreement (the Agreement) and its Schedules are contained in Schedule 1 to the Act.

The Agreement, including its Schedules, is an intergovernmental agreement between the Commonwealth, the states of New South Wales, Victoria, South Australia, Queensland and the Australian Capital Territory (together referred to in the Agreement as the Contracting Governments). New South Wales, Victoria, South Australia, Queensland and the Australian Capital Territory are referred to in the Act as the ‘Basin States’.

Subsection 256 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Subsection 18C(1) of the Act permits regulations to be made under the Act to amend Schedule 1 of the Act, which contains the Agreement, to incorporate amendments made to, and in accordance with, the Agreement.

The Water Amendment (Murray-Darling Basin Agreement) Regulations 2026 (the Regulations) amend the Agreement at Schedule 1 to the Act to incorporate amendments that have been agreed by the Murray-Darling Basin Ministerial Council (Ministerial Council) through the process in clause 14 of the Agreement. Clause 14 of the Agreement deals with resolutions other than at a meeting of the Ministerial Council, and provides that a resolution is deemed to become a decision of the Ministerial Council at the time the last of the Ministers from each Contracting Government has approved the resolution.

In accordance with section 18C of the Act, and paragraph 9(d) and subclause 14(3) of the Agreement, the amendments to the Agreement set out in these Regulations were agreed by the Ministerial Council on 11 June 2026.

The power in section 18C of the Act to amend the Act by regulations exists in the limited context of amending the text of the Agreement. As an intergovernmental agreement, the Agreement can be amended only through the agreement of participating jurisdictions in accordance with the provisions of the Agreement. An amendment of Schedule 1 alone, without amendment of the Agreement in accordance with its provisions, cannot amend the Agreement.

This regulation-making power ensures that an up-to-date version of the Agreement that reflects the amendments to the Agreement agreed to by the Ministerial Council is at all times included in Schedule 1 to the Act. It is necessary and appropriate that amendments to the Agreement contained in Schedule 1 of the Act are made by these Regulations because:

• Section 18C of the Act provides an explicit power to do so; and
• The amendments in the Regulations contain the amendments to the Agreement that have been agreed by the parties to the Agreement.

Purpose

The purpose of the Agreement, set out in its clause 1, is to promote and co-ordinate effective planning and management for the equitable, efficient and sustainable use of the water and other natural resources of the Basin, including by implementing arrangements agreed between the Contracting Governments to give effect to the Basin Plan 2012 (Basin Plan), the Act and State water entitlements.

In serving this purpose, the arrangements contained in the Agreement encompass a range of governance and administrative matters, functions and duties of the Murray-Darling Basin Authority (the Authority), joint programs and asset management for the operation of the River Murray system, financial contributions from Contracting Governments, and other matters relating to the sharing of waters in the River Murray.

The purposes of the amendments to the Agreement, as set out in the Regulations, are to:

• Clarify the scope and apportionment of costs of project works, such as improvements and replacement of infrastructure (such as dams) listed in the Agreement and parts of infrastructure, to effectively manage infrastructure risk in the Basin;
• Set a long-term strategic focus for asset management and planning;
• Enable a multi-year budget management framework to improve administrative efficiency and flexibility to manage water resources and infrastructure;
• Enable secretariat (administrative) functions for out-of-session resolutions of the Ministerial Council to be carried out by the Department;
• Improve the administration, management and transparency of interstate and intervalley water transfers in the southern-connected Basin under Schedule D to the Agreement; 
• Repeal duplicative accounting and reporting requirements relating to the Cap on Diversions that applied to Basin States and the Authority; and
• Update the Table of Contents for the Agreement to ensure its accuracy.

Together, these amendments are intended to strengthen the continued effectiveness and administrative efficiency of the Agreement in promoting and coordinating planning and management across the Basin. In doing so, they support the equitable, efficient and sustainable use of water and other natural resources, consistent with the purpose of the Agreement set out in its clause 1.

Structure of the Regulations

Schedule 1 to the Regulations contains 3 parts. Part 1 includes the multi-year budgets and project works measures, which provide for longer term budget and planning horizons and clarify the Commonwealth’s authority under the Agreement to contribute funding for improvements to (or replacement of) certain works under the Agreement. Part 2 contains the amendment to enable the Department to perform secretariat functions related to the Ministerial Council’s out-of-session resolution process. Part 3 aligns the commencement of amendments to the Agreement with the Legislation Act 2003 (the Legislation Act).   

Schedule 2 to the Regulations sets out amendments relating to transfers of tradeable water rights in the southern-connected Basin and the repeal of the cap on diversions. Respectively, these amendments relate to Schedule D and Schedule E of the Agreement. Schedule 2 also makes consequential amendments to the Table of Contents in the Agreement, and to Schedules F and G of the Agreement.

Schedule 3 to the Regulations updates the Agreement’s Table of Contents to reflect amendments to the Agreement made by previous regulations.  

Background

The amendments in the Regulations arise from a range of reviews, reforms and evolving governance arrangements under the Agreement, including those relating to the joint programs, and to interstate and intervalley water trade. The amendments are directed at improving administrative efficiency, strengthening financial and asset management practices, reducing duplication, and ensuring that regulatory and management frameworks remain contemporary and aligned with current water market and asset management practices.

The term ‘joint programs’ refers to the planning and management of River Murray operations assets (including maintenance, operations, and renewal), river operations, natural resource management and enabling programs, and the provision of governance and administrative support required under the Agreement.

Joint programs are funded by the Contracting Governments in accordance with the financial arrangements set out in Part IX of the Agreement. However, the effectiveness of long-term planning and strategic asset management has been constrained by existing arrangements, which are limited to an annual work plan and budget cycle under the Agreement. To address this, the Contracting Governments and the Authority collaboratively initiated the Joint Programs Improvement Project to deliver enhanced budgeting processes through the introduction of a multi-year budget framework and longer-term asset management and planning[1].

In June 2024, the Basin Officials Committee established by Part IV of the Agreement (the Committee) endorsed the progression of a multi-year budget framework for joint programs[2]. Accordingly, the amendments in Schedule 1 to the Regulations relating to multi-year budgeting and strategic asset management have been developed to support the implementation of this framework under the Agreement and to improve work plan budgeting, long-term asset planning and management outcomes.

Schedule D of the Agreement sets out the arrangements for accounting, administration and coordination of interstate and intervalley water trade between New South Wales, Victoria, South Australia and the Australian Capital Territory in the southern-connected Basin. The amendments to Schedule D in Schedule 2 to the Regulations implement the recommendations of the 2024 Schedule D Review: Synthesis Report[3]. The Review was led by the Authority in consultation with Basin State governments through the Trade Working Group.

The Schedule D framework was established before the Basin Plan settings took effect, at a time when water trade was new. Since that time, the legislative and regulatory frameworks governing water markets at both State and Commonwealth levels have expanded significantly. Consistent with the conclusions of the Review, the amendments in Schedule 2 of the Regulations substantially revise Schedule D to clarify its purpose and role, streamline its operation, and better align it with contemporary water market settings.

Schedule E of the Agreement previously established the long-term caps on the volume of surface water used for consumptive purposes in the river valleys within the Basin, and set out how these caps would be quantified, complied with and reported on. Baseline Diversion Limits (BDLs) were also principally derived from long-term diversion cap information set out in Schedule E.

Until 2012, Water Audit Monitoring Reports, were produced annually by the Authority, with the input from reporting from Basin States. These reports assessed Basin state governments’ compliance with the Cap on Surface Water Diversions. With the introduction of the Basin Plan, the Water Audit Monitoring Reports were replaced by Transitional Sustainable Diversion limits water take reports for the period from 2012–13 to 2018–19.

On 1 July 2019, Basin Plan Sustainable Diversion Limits (SDLs) came into effect, and Water Resource Plan (WRPs) are now used to define how SDLs will be achieved. BDLs are now based on the definition set out in Schedule 3 of the Basin Plan and detailed in accredited WRPs. The repeal of Schedule E does not prevent the revision of BDLs based on improved information on water available for take. Schedule E will continue to be available to access on the Federal Register of Legislation.

The repeal of Schedule E:

• Removes the duplicative accounting processes required under Schedule E cap reporting which have continued in parallel with SDL accounting; and  
• Removes the reporting and compliance burden on Basin States and the Authority.

Following the repeal of Schedule E, the WRPs will continue to define how SDLs are to be achieved, and the repeal of Schedule E is not intended to affect how WRPs deal with these issues.

For the avoidance of doubt, this means that to the extent that any currently applicable WRP may rely upon historical Cap level of diversion to calculate BDLs and SDLs from regulated systems, consistently with former Schedule E, this will not be affected by the amendments. 

Consultation

The Office of Impact Analysis (OIA) advised that a detailed analysis was not required under the Impact Analysis Framework as the Regulations do not have any regulatory impact on business, individuals or community organisations (OIA24-07527).

The Authority was consulted during the drafting of the Regulations. The Ministerial Council agreed to the amendments on 11 June 2026, following consideration of the amendments by the Contracting Governments through both direct consultation with the State Contracting Governments and through the governance committees for the Agreement, including the Committee and its subordinate Committee Alternatives[4].

Exemption from Sunsetting

The Regulations are exempt from sunsetting requirements in accordance with subsection 18C(3) of the Act and table item 67 of section 12 of the Legislation (Exemption and Other Matters) Regulations 2015. Section 12 of the Legislation (Exemption and Other Matters) Regulations 2015 provides that a regulation made under the Act is a class of instrument that is not subject to sunsetting.  

However, the Regulations will repeal on 2 July 2026 following the commencement of the amendments to the Agreement that the Regulations incorporate.

Details of the Amendment Regulations

Details of the Regulations are set out in Attachment A.

The Regulations are compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility with human rights is set out in Attachment B.

The Regulations are a legislative instrument for the purposes of the Legislation Act.

Authority: sections 18C and 256 of the Water Act 2007.

Attachment A

Details of the Water Amendment (Murray-Darling Basin Agreement) Regulations 2026

Section 1 - Name of Regulations

This section provides that the title of the Regulations is the Water Amendment (Murray-Darling Basin Agreement) Regulations 2026 (the Regulations).

Section 2 – Commencement

This section provides for:

• Sections 1 to 5 and anything in this instrument not elsewhere covered by this table to commence the day this instrument is registered.
• Schedule 1, Parts 1 and 2 to commence the day after this instrument is registered.
• Schedule 1, Part 3 to commence the day this instrument is registered.
• Schedule 2, Part 1 to commence the day after this instrument is registered.
• Schedule 2, Part 2 to commence on 1 July 2026.
• Schedule 3 to commence on 1 July 2026.

Sections 1 to 5 and Part 3 of Schedule 1 commence the day the Regulations are registered and ahead of the other provisions of the Regulations.

The reason for this earlier commencement is because Part 3 of Schedule 1 to the Regulations amends subclause 5(2) of the Murray-Darling Basin Agreement (the Agreement) which is set out in Schedule 1 to the Water Act 2007 (the Act) – see item 63 of Schedule 1 to the Regulations. Subclause 5(2) of the Agreement deals with commencement of amendments to the Agreement.

Subclause 5(2) previously provided that amendments to the Agreement commence upon registration of the amending instrument. The amendment at item 63 provides that the amending instrument commences in accordance with the Legislation Act 2003 (Legislation Act).

The purpose of the amendment made by item 63 is to align the commencement of amendments to the Agreement with normal practice under the Legislation Act and allow provisions to commence the day after registration or on a specified date.

Part 3 of Schedule 1 to the Regulations therefore has to commence on the day of registration and before the other amendments in the Schedules to the Regulations to enable this more standard form of commencement to apply to those other amendments as well as to future amendments of the Agreement.

Section 3 – Authority

This section provides that the Regulations are made under the Act.

Subsection 18C(1) of the Act provides that the regulations may make amendments to Schedule 1 to the Act by incorporating into the Agreement amendments made to, and in accordance with, the Agreement.

Section 256 of the Act provides, relevantly:

(1) The Governor‑General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Without limiting subsection (1), the regulations may make provision in relation to matters of a transitional nature (including the prescription of any saving or application provision) relating to:

(a) the amendments or repeals made by this Act; or

(b) the enactment of this Act.

Section 4 – Repeal of this instrument

This section provides that the Regulations repeal on 2 July 2026. This is standard practice to ensure that amending regulations do not remain in force after the amendments have commenced.

Section 5 – Schedules

This section provides that the legislation that is specified in a Schedule to the Regulations is amended as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulations has effect according to its terms.

The Schedules to these Regulations amend Schedule 1 to the Act which contains the Agreement.

SCHEDULE 1 – MULTI-YEAR BUDGETS AND ADMINISTRATIVE SUPPORT  

Schedule 1 to the Regulations amends the Agreement as follows:

• Part 1—Multi‑year budgets and project works
• Part 2—Administrative support
• Part 3—Commencement of amendments of the Agreement

Part 1 – Multi-year budgets and project works

Multi-year budgets

The amendments implement reforms to allow for the Authority to undertake multi‑year budgeting and longer‑term planning for Murray-Darling Basin (the Basin) joint programs that promote and coordinate effective planning, management and sharing of the water and other natural resources of the Basin.

The funding for joint programs relates to the costs in delivering a work program that covers three complementary functions: River Management (River Murray Operations), Natural Resource Management and Enabling Programs. It includes costs associated with the:

• Maintenance, operation, and renewal of the River Murray assets (such as locks, weirs and regulators);
• Activities such as river operations, salinity management and environmental monitoring and evaluation; and
• Enabling functions such as technical and modelling support that underpin River Management and Natural Resources Management functions.

In particular:

• The amendments to clause 34A (item 18) introduce multi‑year budgeting to improve funding certainty and longer‑term planning by replacing annual work plans and annual estimates with work plans of up to 4 years.
• New clause 34B (item 22) introduces a requirement for the Authority to prepare a long-term (30-year) forecast of costs which will be incurred in relation to construction, renewal and major or cyclic maintenance of dams and other works.
• The amendments to clause 53 (item 27) and related amendments reflect reforms to asset management, to embed a more strategic and longer term approach to asset planning and management.   

Project works

Project works amendments, including those at item 35 and amendments to relevant definitions, clarify the Commonwealth’s ability to contribute funding for certain significant capital works authorised under the Agreement. This includes improvements to (or replacement of) works, being dams, weirs, locks and barrages, listed in Schedule A to the Agreement and significant parts of those works.

Item 1 - Schedule 1 (table of contents)

This item omits the entry for clause 35 and inserts entries for clauses 34A, 34B, 35 and 35A in the Agreement’s table of contents.

This item inserts an entry for clause 34A (Work plan), which reflects the heading for that clause as amended by item 17 of Schedule 1. Although clause 34A was already in the Agreement prior to these amendments, there was previously no entry for that clause in the table of contents. Clause 34A was originally inserted by the Water Amendment (Murray-Darling Basin Agreement) Regulations 2017. This amendment therefore both rectifies an earlier omission in the table of contents and updates the entry for the amendments made by these Regulations.

This item also inserts an entry for clause 34B (Forecast of costs), which is a new clause inserted by item 22 of Schedule 1 and is consequential to that insertion.

This item also amends the entry for clause 35 (Amendment of Annual Corporate Plan and Work Plan), to reflect the amendment to the heading for that clause made by item 23 of Schedule 1, and is consequential to that amendment.

This item also inserts a new entry for clause 35A (Service Level Agreement). Clause 35A was already in the Agreement prior to these amendments. However, there was previously no entry for that clause in the table of contents. Clause 35A was originally inserted by the Water Amendment (Murray-Darling Basin Agreement) Regulation 2014 (No. 1). This amendment rectifies an earlier omission in the table of contents.

Item 2 - Schedule 1 (table of contents)

This item omits the entry for clause 53 and inserts a new entry for clause 53 (Strategic Asset Management Plan) in the Agreement’s table of contents. This reflects the amendment to the heading for that clause made by item 26 of Schedule 1, and is consequential to that amendment.

Item 3 - Schedule 1 (table of contents)

This item omits the entries for clause 71 (Definitions) and clause 74 (Annual and forward estimates) in the Agreement’s table of contents. This reflects the repeal of clause 71 made by item 45 of Schedule 1 and the repeal of clause 74 made by item 47 of Schedule 1 and is consequential to those amendments.

Item 4 - Schedule 1 (table of contents)

The item inserts a new entry for clause 88A (Use of allowance for dilution and losses) in the Agreement’s table of contents. Clause 88A was already in the Agreement prior to these amendments. However, there was previously no entry for that clause in the table of contents. Clause 88A was originally inserted by the Water Amendment Regulations 2011 (No. 1). The Water Amendment Regulations 2011 (No. 1) amended Schedule 1A (Amendments incorporated into the Murray-Darling Basin Agreement) to the Water Regulations 2008, which in turn incorporated that amendment into the Agreement.

The amendment made by item 4 therefore rectifies an earlier omission in the table of contents.

Item 5 - Schedule 1 (table of contents)

This item inserts entries for clauses 102A (Critical Human Water Needs), 102B (Setting aside water for Critical Human Water Needs), 102C (Need for advances) and 102D (Conveyance Reserve) in the Agreement’s table of contents.

Clauses 102A, 102B, 102C and 102D were already in the Agreement prior to these amendments. However, there was previously no entry for these clauses in the table of contents. These clauses were originally inserted by the Water Amendment Regulations 2011 (No. 1). The Water Amendment Regulations 2011 (No. 1) amended Schedule 1A (Amendments incorporated into the Murray-Darling Basin Agreement) to the Water Regulations 2008, which in turn incorporated that amendment into the Agreement.

The amendments made by item 5 therefore rectify earlier omissions in the table of contents.

Item 6 - Schedule 1 (table of contents)

This item omits the entry for clause 134 and inserts a new entry for clause 134 (Distribution of waters subject to Schedule and Determinations of Ministerial Council) in the Agreement’s table of contents.

This reflects the amendment made by item 56 of Schedule 1 to correct a typographical error in the heading and is consequential to that amendment.

Item 7 - Schedule 1 (table of contents)

This item omits all the entries from and including the entry for PART XVII-TRANSITIONAL PROVISIONS AND REVIEW OF SCHEDULES, RESOLUTIONS AND ACTIVITIES to and including the entry for clause 152, and substitutes new entries in the Agreement’s table of contents for:

• PART XVII of the Agreement (APPLICATION, SAVING AND TRANSITIONAL PROVISIONS)
• Division 1 of Part XVII, and clauses 149 and 150 which comprise Division 1;
• Division 2 of Part XVII, and clauses 151 and 152 which comprise Division 2; and
• a new Division 3 of Part XVII, and clauses 153, 154 and 155 which comprise Division 3.

Item 7 amends the entry for Part XVII of the Agreement to reflect the amendment to the heading of Part XVII made by item 57 of Schedule 1, and is consequential to that amendment. In addition, the repealed entry for the Part XVII heading had already been superseded prior to the amendment made by item 7 as the entry for that heading in the table of contents had not been updated to reflect the amendments to that heading made by the Water Amendment (Murray-Darling Basin Agreement) Regulations 2017.

Item 7 inserts a new entry for the heading for Division 1, re-inserts the entry for clause 149 in Division 1 and amends the entry for clause 150 in Division 1. Division 1 and its heading were inserted by the Water Amendment (Murray-Darling Basin Agreement) Regulations 2017 however the table of contents was not amended at that time. Clause 150 and its heading were amended by the Water Amendment (Murray-Darling Basin Agreement) Regulations 2017 however the table of contents was not amended at that time. These amendments rectify earlier omissions in the table of contents. The heading to clause 149 has remained unchanged and this entry is re-inserted along with changes to other entries in Division 1 for convenience.

Item 7 also inserts a new entry for the heading for Division 2, and amends the entries for clauses 151 and 152 which are in Division 2. Division 2 and its heading were inserted by the Water Amendment (Murray-Darling Basin Agreement) Regulations 2017 however the table of contents was not amended at that time. Clauses 151 and 152 and their headings were amended by the Water Amendment (Murray-Darling Basin Agreement) Regulations 2017 however the table of contents was not amended at that time. These amendments rectify earlier omissions in the table of contents.

Item 7 also inserts new entries for new Division 3 (AMENDMENTS MADE BY THE WATER AMENDMENT (MURRAY‑DARLING BASIN AGREEMENT) REGULATIONS 2026), and new clauses 153, 154 and 155 which comprise new Division 3. This reflects the insertion of Division 3 and clauses 153 and 154 into Part XVII of the Agreement by item 58 of Schedule 1 and is consequential to that insertion. It also reflects the insertion of new clause 155 into Part XVII of the Agreement by item 5 of Schedule 2 and is consequential to that insertion.

Item 8 - Clause 2 of Schedule 1 (definition of “annual estimates”)

This item repeals the definition of annual estimates in clause 2 of the Agreement.

This amendment is consequential to the repeal of clause 74 which dealt with annual and forward estimates (see item 47 of Schedule 1).

Item 9 - Clause 2 of Schedule 1

This item inserts a definition for annuity contribution in clause 2 of the Agreement.

The effect of this amendment is that, for the purposes of the Agreement, annuity contribution means an annuity contribution referred to in subclause 73(1).

Item 9 moves the definition of annuity contribution from clause 71 of the Agreement, which is repealed by item 45 of Schedule 1, and clarifies the interaction with subclause 73(1).

Item 10 - Clause 2 of Schedule 1 (definition of “asset management plan”)

This item repeals the definition of asset management plan in clause 2 of the Agreement. This amendment is consequential to the insertion of a new term – strategic asset management plan – by item 13 of Schedule 1.

Item 11 - Clause 2 of Schedule 1

This item inserts definitions for the terms forecast of costs and investigations, construction and administration costs in clause 2.

The effect of these amendments is that, for the purposes of the Agreement:

• Forecast of costs means the forecast, including any amendment to it, prepared under clause 34B of the Agreement.
• Investigations, construction and administration costs means the costs of:
  • Investigating and constructing works set out in Schedule A or any other works authorised under this Agreement; and
  • Improving or replacing:
    • works set out in Schedule A or any other works constructed under this Agreement; or
    • a significant part of such works; and
  • Preventing or remedying the extraordinary failure of part or all of works set out in Schedule A or any other works constructed under this Agreement; and
  • Implementing other measures authorised under this Agreement; and
  • Studies, programs, surveys and investigations carried out under clause 43 of the Agreement; and
  • Establishing the systems referred to in clause 45 of the Agreement; and
  • Establishing the systems or means to carry out monitoring or measurement in response to a request made under paragraph 47(b) of the Agreement; and
  • Special action taken under subclause 51(5) of the Agreement, which the Ministerial Council has determined under subclause 72(5) of the Agreement are investigations, construction and administration costs; and
  • Any payment made by the Authority in respect of the construction of works under clause 57 of the Agreement; and
  • Complying with a direction given under subclause 60(3) of the Agreement; and
  • Dismantling works declared to be ineffective under subclause 70(2) of the Agreement; and
  • Any payment made by the Authority under paragraph 138(a) of the Agreement; and
  • Administrative and other expenses of the following to perform functions or duties, or exercise powers under the Agreement:
    • the Authority;
    • the Basin Community Committee;
    • the Committee;
    • the Ministerial Council.

The definition of forecast of costs is a new definition that is consequential to the insertion of new clause 34B (Forecast of costs) by item 22 of Schedule 1.

The definition of investigations, construction and administration costs is, for the most part, consequential to the repeal of clause 71 of the Agreement, which previously contained this definition, by item 45 of Schedule 1.

Compared to the previous definition of investigations, construction and administration costs in clause 71, this item:

• Restructures the previous paragraphs (a) and (b) of that definition into amended paragraphs (a) and (d) of the new definition, without substantively altering their content.

• Inserts a new paragraph (b) to provide that investigations, construction and administration costs includes:
  • Improving or replacing the works set out in Schedule A of the Agreement or any other works constructed under the Agreement, or
  • Improving or replacing a significant part of such works, being those works set out in Schedule A of the Agreement or any other works constructed under the Agreement.

In conjunction with the amendments to clause 56 of the Agreement made by item 35 of Schedule 1 and the use of the term investigations, construction and administration costs in, most relevantly, clauses 72 (Apportionment of Costs), 73 (Annuity Contributions) and 77 (Application of Moneys by Authority), the purpose of inserting new paragraph (b) is to:

• Clarify the apportionment of funding for improvement and replacement/renewal projects by the Contracting Governments, and
• Ensure that the Commonwealth’s contributions can be used for such improvement and replacement/renewal projects.

• Inserts a new paragraph (c) to provide that investigations, construction and administration costs includes preventing or remedying the extraordinary failure of part or all of works set out in Schedule A or any other works constructed under the Agreement.

In conjunction with the amendments to clause 56 of the Agreement made by item 35 of Schedule 1 and the use of the term investigations, construction and administration costs in, most relevantly, clauses 72 (Apportionment of Costs), 73 (Annuity Contributions) and 77 (Application of Moneys by Authority), the purpose of inserting new paragraph (c) is to:

• Clarify the apportionment of funding by the Contracting Governments for projects to prevent or remedy the extraordinary failure of part or all of works set out in Schedule A or any other works constructed under the Agreement, and
• Ensure that the Commonwealth’s contributions can be used for projects to prevent or remedy the extraordinary failure of part or all of those works.

• Corrects a reference in previous paragraph (f), which becomes paragraph (h) of the new definition, to clarify that is it is the Ministerial Council acting under subclause 72(5) of the Agreement, and not the Authority, that determines the costs of special actions taken under subclause 51(5) of the Agreement.

• Renumbers the remainder of the paragraphs without altering their content.

Item 12 - Clause 2 of Schedule 1 (definition of “maintenance”)

This item substitutes the definition of maintenance with an updated definition in clause 2 of the Agreement.

In conjunction with other amendments made by Schedule 1 to the Regulations and the existing provisions of the Agreement, this amendment is intended to clarify what is and is not maintenance. Maintenance of works is the responsibility of the State Contracting Governments rather than of the Commonwealth.

The effect of the amendment in item 12 is that, for the purposes of the Agreement, maintenance includes the execution of all work of any description which is necessary to keep an existing work in the state of utility in which it was:

• Upon the original completion of the existing work; or
• Upon the:
  • Completion of any improvement of the existing work or a significant part of the existing work; or
  • Replacement of the existing work or a significant part of the existing work.

This amendment deals with the situation where there have been improvements or replacements of significant parts of an existing work rather than of the whole of the work. In this context, an existing work is a dam, weir or other structure that is already in existence at the time the maintenance is to take place.

• The amendment provides that maintenance includes keeping a work in the state of utility in which it was upon the completion of improvements or replacement of a significant part of a work, in addition to upon the completion of improvements or replacement of the whole of the work in the previous definition.

The effect of the amendment in item 12 is also that, for the purposes of the Agreement, maintenance does not include:

• The execution of any improvement to the design, function or operation of the existing work or a significant part of the existing work; or
• The replacement of the whole or a significant part of the existing work; or
• Work to prevent or remedy the extraordinary failure of part or all of the existing work.

This part of the amendment is intended to clarify that maintenance does not include:

• Improvements or replacements of significant parts of an existing work, in addition to maintenance already not including improvements or replacements of the whole of an existing work
• Improvements which relate to the operation of a work
• Work to prevent the extraordinary failure of part or all of a work, in addition to work to remedy such a failure.

Item 13 - Clause 2 of Schedule 1

This item inserts definitions for the terms major or cyclic maintenance, operation and maintenance costs, specified period and strategic asset management plan in clause 2 of the Agreement.

The effect of this amendment is that, for the purposes of the Agreement:

• Major or cyclic maintenance has a meaning determined by reference to the guidelines established by the Authority under subclause 73(3).
• Operation and maintenance costs means the costs of:
  • Operating and maintaining works set out in Schedule A or any other works authorised under this Agreement; and
  • Operating and maintaining the systems referred to in clause 45 of the Agreement; and
  • Operating and maintaining the systems or means to carry out monitoring or measurement in response to a request made under paragraph 47(b) of the Agreement; and
  • Special action taken under subclause 51(5) of the Agreement, which the Ministerial Council has determined under subclause 72(5) of the Agreement are operation and maintenance costs; and
  • Any payment made by the Authority in respect of the operation or maintenance of works under clause 57 of the Agreement; and
  • Any dredging or snagging carried out under clause 67 of the Agreement; and
  • Any payment made by the Authority under paragraph 138(b) of the Agreement.
• Specified period means for a work plan, the period covered by subclause 34A(1A) of the Agreement.
• Strategic asset management plan means the strategic asset management plan, including any amendment to it, approved under clause 53 of the Agreement.

Item 13 consequentially moves the definition of major or cyclic maintenance to clause 2 from clause 71, which is repealed by item 45 of Schedule 1, but does not alter its content.

Item 13 consequentially moves the definition of operation and maintenance costs to clause 2 from clause 71, which is repealed by item 45 of Schedule 1, with the following minor changes:

• Paragraphs (a) and (b) of the definition are consolidated into paragraph (a) without altering the meaning.
• There is a correction of a reference in previous paragraph (e), which becomes paragraph (d) of the new definition, to clarify that is it is the Ministerial Council acting under subclause 72(5) of the Agreement, and not the Authority, that determines the costs of special actions taken under subclause 51(5) of the Agreement.
• Other paragraphs are renumbered without altering their content.

Item 13 inserts a new definition of specified period in clause 2 which refers to new subclause 34A(1A) of the Agreement and is consequential to the amendments to clause 34A (work plan) made by item 18 of Schedule 1. Under new subclause 34A(1), the specified period for a work plan is 4 years, unless the Ministerial Council determines a shorter period.

Item 13 inserts a new definition of strategic asset management plan in clause 2 which refers to the plan approved under clause 53 (Strategic Asset Management Plan) of the Agreement. This is consequential to amendments to clause 53 made by items 26 to 34 of Schedule 1 which change the terminology from asset management plan to strategic asset management plan to reflect that the plan is to take a long-term view of asset cost, service and risk in asset management planning and reflect international standards for effective asset management, including the establishment of systems to improve both the process of asset management, and the optimisation of the value, costs and risks of assets over their lifecycle.

Item 14 - Paragraph 9(c) of Schedule 1 and Item 15 - Paragraph 9(ca) of Schedule 1

Item 14 omits “annual work plan and asset management plan” in paragraph 9(c) of the Agreement and substitutes this with “work plan and the strategic asset management plan” in paragraph 9(c).

Item 15 omits “annual work plan” in paragraph 9(ca) of the Agreement and substitutes this with “work plan”.

Clause 9 of the Agreement sets out the functions of the Ministerial Council. These include:

• Under paragraph 9(c) - approving relevant plans; and
• Under paragraph 9(ca) - approving amendments to relevant plans.

The amendments to paragraphs 9(c) and 9(ca) of the Agreement update the terminology:

• From annual work plan to work plan in both paragraphs 9(c) and (ca) – these are consequential to the amendments made primarily by item 18 of Schedule 1; and
• From asset management plan to strategic asset management plan in paragraph 9(c) – this is consequential to the amendments made primarily by item 27 of Schedule 1.

The above changes to terminology reflect the amendments made by Schedule 1 to the Regulations to implement multi-year budgets and to take a long-term view of asset cost, service and risk in asset management planning.

Item 16 - Paragraph 29(2)(c) of Schedule 1

This item omits “the asset” in paragraph 29(2)(c) of the Agreement and substitutes this with “the strategic asset”.

Clause 29 of the Agreement deals with the Functions, Powers and Duties of the Authority. The effect of subclause 29(2) of the Agreement is that the Authority is to act in accordance with, among other things, the asset management plan.

The amendment made by item 16 updates the terminology in paragraph 29(2)(c) from asset management plan to strategic asset management plan – this is consequential to the amendments made primarily by item 27 of Schedule 1.

Item 17 - Clause 34A of Schedule 1 (heading)

This item omits “Annual work” from the heading to clause 34A of the Agreement and substitutes this with “Work”. This updates the heading from “annual work plan” to “work plan” which is consequential to the amendments to clause 34A made primarily by item 18 of Schedule 1.

Item 18 - Subclauses 34A(1) and (2) of Schedule 1

This item repeals subclauses 34A(1) and (2) of the Agreement and substitutes new subclauses 34A(1), (1A) and (2).

Amended subclause 34A(1) provides that the Authority must prepare a draft work plan, by the date determined by the Ministerial Council, for a specified period. This replaces a similar requirement that, rather than being for a specified period, was instead for each reporting period of the Authority under the Public Governance, Performance and Accountability Act 2013. Consistent with the definition of reporting period under the Public Governance, Performance and Accountability Act 2013, this was a 12-month period commencing on 1 July.

New subclause 34A(1A) provides that the specified period for a work plan is 4 years, unless the Ministerial Council determines a shorter period.

The effect of these two amendments is to remove the requirement for the Authority to prepare an annual work plan and instead prepare a plan that covers a 4-year period, unless the Ministerial Council determines a shorter period. The purpose of these amendments, along with the repeal of clause 74 (Annual and forward estimates) made by item 47 and other related and consequential amendments made by Schedule 1, is to align operational and asset planning across multiple years.

Amended subclause 34A(2) sets out the information required to be provided in a draft work plan:

• Paragraph (a) relates to the activities of the Authority. The amended paragraph is largely the same as prior to the amendments. It does however set out that the relevant period is the specified period of the work plan, which, in accordance with new subclause 34A(1A) is 4 years or a shorter period if determined by the Ministerial Council. Previously this paragraph required the draft annual work plan to set out the activities relating to the Agreement for the next 4 years. This is consequential to the amendments to subclauses 34A(1) and (1A) also made by this item.

• Paragraph (b) relates to new capital works and operational and maintenance programs. The amended paragraph is the same as prior to the amendments, other than to update asset management plan to strategic asset management plan to align with the amendments to this term made primarily by item 27 of Schedule 1.

• Paragraph (c) relates to budgets, including estimates of Contracting Government contributions and the Authority’s known and anticipated expenditure. The amended paragraph largely replicates the combined effect of the previous paragraph (c) which referred to clause 74 (Annual and forward estimates) and of clause 74 itself, which is being repealed by item 47 of Schedule 1.
  • Rather than breaking down estimates into annual estimates for the next financial year and forward estimates for the 3 years following that next financial year as clause 74 did, the amended paragraph brings these estimates together more clearly into one paragraph that deals with each financial year of a specified work plan.

• Paragraph (d) relates to unexpended balances. This is a new paragraph that provides that a draft work plan must include a statement of any unexpended balance of moneys referred to in subclause 80(1).
  • The purpose of this new paragraph is to more closely tie the expenditure, under clause 80 of the Agreement, of (previously) unexpended balances in accordance with a work plan, with the content of a draft work plan.
  • The intention is to clarify the ability of the Authority to spend unexpended balances from a previous work plan in accordance with a new work plan.

The purpose of these amendments is to move from an annual work plan to a work plan that is 4 years in duration, or a shorter period if determined by Ministerial Council, to create efficiencies in the work plan and budget management process. This will support forward planning and improve transparency by consolidating relevant information into a single planning document, the work plan, with the ultimate aim of improving funding certainty and better enabling longer‑term planning.

Item 19 - Subclauses 34A(4) and (5) of Schedule 1

This item repeals subclauses 34A(4) and (5) of the Agreement and substitutes new subclauses 34A(4) and (5).

New paragraph 34A(4)(b) provides that the Authority may provide the Basin Officials Committee (the Committee) the forecast of costs prepared under subclause 34B(1) of the Agreement. This is in addition to the existing requirement in subclause 34A(4) that the Authority must provide the Committee the draft work plan. This amendment is consequential to the insertion of new clause 34B (Forecast of costs) by item 22 of Schedule 1.

Amended subclause 34A(5) provides that the Committee, after considering the documents provided under subclause 34A(4), must submit to the Ministerial Council the draft work plan, the Committee’s advice on the draft work plan and, if the Authority provided it to the Committee, the forecast of costs. The effect of this amendment is to add a reference to the forecast of costs and is consequential to the insertion of new clause 34B by item 22 of Schedule 1.

Item 20 - Subclause 34A(6) of Schedule 1 and Item 21 - Paragraph 34A(6)(b) of Schedule 1

Item 20 omits “plan and the advice of the Committee” in subclause 34A(6) of the Agreement and substitutes “documents provided under subclause (5)”. This is consequential to the insertion of new clause 34B (Forecast of costs) by item 22 of Schedule 1 and the amendments made by item 19 of Schedule 1.

Item 21 omits “the plan” in paragraph 34A(6)(b) and substitutes “the draft plan”. This makes it clearer that the plan is still a draft plan if the Ministerial Council refers it back to the Committee rather than approving it.

The effect of these amendments is that the Ministerial Council may consider the forecast of costs, if one had been provided, in addition to the draft work plan and the Committee’s advice in relation to the draft work plan, in deciding whether to approve the plan or refer the draft plan back to the Authority for further consideration.

Item 22 - After clause 34A of Schedule 1

This item inserts a new clause 34B (Forecast of costs) into the Agreement.

New subclause 34B(1) provides that the Authority must prepare a forecast of the costs which will be incurred in relation to the construction, renewal and major or cyclic maintenance of works which are constructed, operated, maintained or renewed for the purposes of river operations.

• The term ‘works’ is not defined in the Agreement but is understood to mean structures such as dams, locks, weirs and barrages. In addition, clause 52 (Works and Measures Subject to the Agreement) refers to works listed in a Schedule to the Agreement and Schedule A to the Agreement contains a list of works.
• The term river operations is defined in clause 2 of the Agreement as activities under this Agreement relating to:
  • The construction, operation, maintenance and renewal of works on, adjacent to, or connected to the upper River Murray or the River Murray in South Australia; and
  • The execution of the provisions of this Agreement concerning sharing water between State Contracting Governments; and
  • The provision of other services relating to water, to State Contracting Governments and other persons.

Under new subclause 34B(1), the period for the forecast of costs is the next 30 years or such other period as the Authority determines. The Authority must prepare the forecast as soon as practicable after the new clause commences.

New subclause 34B(2) allows the Authority to amend the forecast of costs at any time if the Authority considers it necessary or desirable to do so.

The purpose of this new provision is to insert a specific requirement that the Authority prepare a long-term forecast of costs for a period of 30 years, which was previously referred to indirectly in clause 73 (Annuity Contributions). The provision is part of the set of amendments intended implement a strategic and long-term approach to asset planning and management, of which long-term forecasts of costs form one part, and can underpin the multi-year cycle of work plans and strategic asset management plans to improve budget accuracy and outcomes. 

Item 23 - Clause 35 of Schedule 1 (heading)

This item omits “Annual Work Plan” from the clause 35 heading in the Agreement and substitutes “Work Plan”. This means that the amended heading is ‘Amendment of Annual Corporate Plan and Annual Work Plan’. This change in terminology is consequential to the amendments to clause 34A made primarily by item 18 of Schedule 1.

Item 24 - Paragraph 35A(b) of Schedule 1

This item omits “asset management plan (annual review” from paragraph 35A(b) of the Agreement and substitutes “strategic asset management plan (review”.

The effect of this amendment is to make a minor change to the terminology in clause 35A (Service Level Agreement). Clause 35A provides the key elements of the Authority’s responsibilities which are set out in the Service Level Agreement between the Ministerial Council and the Authority. Paragraph 35A(b), as amended, lists “the strategic asset management plan (review and delivery)” as such an element.

This amendment to update the terminology is consequential to the amendments made primarily by item 27 of Schedule 1 to replace asset management plans with strategic asset management plans to reflect a longer-term view of asset cost, service and risk in asset management planning.

Item 25 - Sub-subparagraph 52(1)(a)(iii)(A) of Schedule 1

This item omits “the asset” from sub-subparagraph 52(1)(a)(iii)(A) of the Agreement and substitutes “the strategic asset”.

The effect of this amendment is to make a minor change to the terminology in clause 52 (Works and Measures Subject to the Agreement). Sub-paragraph 52(1)(a)(iii), as amended, provides that works must be constructed, operated, maintained or implemented in accordance with the strategic asset management plan.

This amendment to update the terminology is consequential to the amendments made primarily by item 27 of Schedule 1 to replace asset management plans with strategic asset management plans to reflect a longer-term view of asset cost, service and risk in asset management planning.

Item 26 - Clause 53 of Schedule 1 (heading)

This item omits “Asset” from the clause 53 heading in the Agreement and substitutes the “Strategic Asset”.

The effect of this amendment is to change the name of the heading from ‘Asset Management Plan’ to ‘Strategic Asset Management Plan’.

This amendment to update the terminology is consequential to the amendments made primarily by item 27 of Schedule 1 to replace asset management plans with strategic asset management plans to reflect a longer-term view of asset cost, service and risk in asset management planning.

Item 27 - Subclauses 53(1) and (2) of Schedule 1

This item repeals the subclauses 53(1) and (2) of the Agreement and substitutes them with a new subclause 53(1).

New subclause 53(1) provides that the Authority must, by 30 June 2030, prepare a draft strategic asset management plan that sets out the Authority’s strategic plan for the management of RMO assets, and the works referred to in subclause 52(1) of the Agreement, including:

• The respective responsibilities of each Contracting Government and the Authority in relation to the assets and the works; and
• Any other matter the Authority considers relevant to the strategic management of the assets and the works.

New subclause 53(1) introduces the concept of a strategic asset management plan to replace asset management plan. The intention of this change in terminology is to reflect that the plan is to take a long-term view of cost, service and risk in asset management planning and reflect international standards for effective asset management, including the establishment of systems to improve both the process of asset management, and the optimisation of the value, costs and risks of assets over their lifecycle.

The new subclause 53(1) requires the Authority to prepare a draft strategic asset management plan for both RMO assets and the works referred to in subclause 52(1) of the Agreement.

RMO assets, which are defined in clause 2 of the Agreement, encompass the infrastructure used to regulate, store, and deliver water across the River Murray system. These assets include dams, weirs, locks, regulators and slipways. They also include pre-existing assets in place at the time the current Agreement came into effect, and further works constructed under the current Agreement, as authorised by the Ministerial Council, to promote the equitable, efficient and sustainable use of the water and other natural resources of the Basin.

Previously subclauses 53(1) and 53(2) referred to a draft asset management plan for the works referred to in subclause 52(1) of the Agreement.

The works referred to in subclause 52(1) of the Agreement are works or measures from time to time included in a Schedule to the Agreement or authorised under clause 56 (Authorisation of Further Works or Measures). Schedule A to the Agreement sets out a list of works. These include various dams, weirs, locks and barrages. 

The definition of RMO assets includes works constructed under clause 56 while many pre-existing assets at the time the current Agreement came into effect are included in a Schedule to the Agreement. While the scope of the previous asset management plan included RMO assets through these references, this inclusion is now made explicit in clause 53. 

In addition, new subclause 53(1) requires the draft strategic asset management plan to set out the respective responsibilities of each Contracting Government and the Authority in relation to the assets and the works. This express setting out of responsibilities reflects the requirements in subclause 52(1) that the works and measures subject to the Agreement are constructed, operated, maintained and implemented by the Contracting Government nominated under subclause 56(5).

New subclause 53(1) also requires that the draft plan sets out any other matter the Authority considers relevant to the strategic management of the assets and the works.

Together, the purpose of these amendments to clause 53 is to rename the asset management plan to reflect a more strategic and longer term focus; detail the objectives and requirements of the strategic asset management plan, including clarifying interactions with other clauses of the Agreement; and align the strategic asset management plan cycle with the multi-year budget cycle.  

Items 28 and 29 - Subclauses 53(3), (4) and (5) of Schedule 1

Item 28 omits “draft asset” from both subclauses 53(3) and (4) of the Agreement and substitutes “draft strategic asset”.

Item 29 omits “draft plan” from subclause 53(5) of the Agreement and substitutes “draft strategic asset management plan”.

These subclauses set out the procedural steps for the consideration and approval of a draft strategic asset management plan.

These amendments to update the terminology are consequential to the amendments made primarily by item 27 of Schedule 1 to replace asset management plans with strategic asset management plans to reflect a longer-term view of asset cost, service and risk in asset management planning.

Item 30 - Paragraph 53(5)(b) of Schedule 1

This item omits “the plan” from paragraph 53(5)(b) of the Agreement and substitutes “the draft plan”.

This makes it clearer that the plan is still a draft plan if the Ministerial Council refers it back to the Committee rather than approving it.

Item 31 - Subclause 53(6) of Schedule 1

This item omits “the asset” from subclause 53(6) of the Agreement and substitutes “the strategic asset”.

This subclause relates to monitoring the implementation of the strategic asset management plan.

This amendment to update the terminology is consequential to the amendments made primarily by item 27 of Schedule 1 to replace asset management plans with strategic asset management plans to reflect a longer-term view of asset cost, service and risk in asset management planning.

Item 32 - Subclause 53(7) of Schedule 1

This item omits “asset management plan annually” from subclause 53(7) of the Agreement and substitutes “strategic asset management plan every 4 years”.

This subclause provides a requirement for the Authority to review the strategic asset management plan. The amendment to update the terminology is consequential to the amendments made primarily by item 27 of Schedule 1 to replace asset management plans with strategic asset management plans to reflect a longer-term view of asset cost, service and risk in asset management planning.

In addition, this amendment changes the frequency of the Authority’s review of the plan from an annual review to every 4 years. This reflects the change in focus of the asset management plan from short term tracking to longer‑term asset strategy. It is also intended to align the multi-year work plan with the asset planning and management cycle, as these are likely to drive expenditure and funding forecasts in the work plan’s budget.  

Item 33 - Subclause 53(8) of Schedule 1

This item repeals subclause 53(8) of the Agreement and substitutes a new subclause 53(8).

New subclause 53(8) provides that the Authority must prepare a draft amendment to the strategic asset management plan if the Committee recommends an amendment to the plan.

New subclause 53(8) also provides that the Authority may prepare a draft amendment to the strategic asset management plan as a consequence of the review (under subclause 53(7)), a new work being authorised under clause 56 of the Agreement, or if the Authority considers it necessary or desirable to do so.

The amendments made by this item largely restructure and clarify the provisions of the previous subclause 53(8), as well as reflecting the new strategic asset management plan terminology as a consequence of the amendments made primarily by item 27 of Schedule 1.

Item 33 makes one substantive amendment to subclause 53(8). Previously subclause 53(8) required the Authority to prepare a draft amendment to the asset management plan in respect of each new work authorised under clause 56 (Authorisation of Further Works or Measures). The amended subclause 53(8) provides that the Authority may prepare a draft amendment to the strategic asset management plan in respect of each new work authorised under clause 56 (Authorisation of Further Works or Measures) but is no longer required to. This helps ensure that the role of the Committee is clear in requiring preparation of an amendment to the plan, but otherwise reduces administrative burden for the Authority by allowing it to decide whether or not to prepare an amendment in this circumstance where the Committee has not recommended an amendment.

Item 34 - Subclause 53(9) of Schedule 1

This item omits “draft asset” from subclause 53(9) of the Agreement and substitutes “draft strategic asset”.

This amendment to update the terminology is consequential to the amendments made primarily by item 27 of Schedule 1 to replace asset management plans with strategic asset management plans to reflect a longer-term view of asset cost, service and risk in asset management planning.

Item 35 - Paragraphs 56(1)(b) to (d) of Schedule 1

This item repeals paragraphs 56(1)(b), (c) and (d) of the Agreement and substitutes new paragraphs 56(1)(b), (c), and (d).

Clause 56 deals with the authorisation of further works and measures. This includes improvements to works (such as dams and weirs), replacement of works such as dams and weirs) and work (in the sense of work projects) to remedy the extraordinary failure of part or all of any work (such as a dam or weir).

The amendments change the effect of paragraphs 56(1)(b), (c), and (d) in 3 key ways:

• The paragraphs previously referred to works constructed under ‘this Agreement’. The current Agreement dates from 2008. The amended paragraphs each add a reference to ‘works set out in Schedule A’. Schedule A to the Agreement contains a list of dams, weirs, locks and barrages in the Basin. The effect of this amendment is to ensure that improvements, replacements and work projects to prevent or remedy extraordinary failure can also be authorised in relation to the works set out in Schedule A, including those works that were constructed under previous versions of the Agreement. An example of such a work is the Hume Dam.

• The amendments ensure that authorisation of improvements to, and replacements of, works include improvements to, and replacements of, a significant part of those works and not just the whole of the work. For example, replacing an important part of a dam structure without replacing the whole dam.

• The amendments also clarify and include extra aspects as to what works can be authorised by:
  • Clarifying that improvements relate to the design, function or operation of works, rather than referring just to the improvement of works; and
  • Including work to prevent the extraordinary failure of works in addition to work to remedy the extraordinary failure of works.

Together these amendments broaden the scope of authorised works under the Agreement. This is to ensure that various improvement, replacement, remedial and preventative projects can be authorised under clause 56 to ensure the effective functioning of dams, weirs, locks and barrages set out in Schedule A and those constructed under the current Agreement.

Item 36 - Subclause 56(3) of Schedule 1

This item omits “$2,000,000” in subclause 56(3) of the Agreement and substitutes “$4,000,000”.

Subclause 56(3) provides that the Authority may authorise the execution of work or implementation of measures under clause 56, where the estimated cost is not more than the amount set out in the subclause or a different amount that is determined by the Ministerial Council.

The purpose of this amendment is to allow the Authority to authorise the execution of works or implementation of measures which are estimated to cost no more than $4 million, which is an increase from the $2 million previously set out in the subclause. This reflects inflation in the civil engineering and construction sector since the current Agreement was agreed in 2008 and the sector’s high exposure to price volatility in key inputs (such as steel, concrete, cement) during economic shocks.

This amendment does not affect the ability of the Ministerial Council to determine a different amount.

Item 37 - Subclause 60(2) of Schedule 1

This item omits “$2,000,000” in subclause 60(2) of the Agreement and substitutes “$4,000,000”.

Clause 60 deals with the approval of certain tenders by the Authority.

Under subclause 60(2), a Constructing Authority must obtain the approval of the Authority before accepting any tender relating to the Agreement for any amount exceeding the amount set out in the subclause or a different amount determined by the Authority.

• Constructing Authority is defined in clause 2 of the Agreement. Broadly, it is the Contracting Government authority or other public authority which constructs the works or implements the measures that are authorised under the Agreement.

The amendment raises the amount set out in subclause 60(2) from $2 million to $4 million to reflects the rising costs of construction and undertaking other works since the current Agreement was agreed in 2008.

This amendment does not affect the ability of the Authority to determine a different amount.

For completeness, the amount in subclause 60(1) remains unchanged at $2 million as it relates to the dollar value of projects which require a tender process under the Agreement.

Item 38 - Subclause 61(1) of Schedule 1

This item omits “asset” in subclause 61(1) of the Agreement and substitutes “strategic asset”.

This amendment to update the terminology is consequential to the amendments made primarily by item 27 of Schedule 1 to replace asset management plans with strategic asset management plans to reflect a longer-term view of asset cost, service and risk in asset management planning.

Item 39 - Subparagraph 61(3)(a)(iii) of Schedule 1

This item omits “maintenance” in subparagraph 61(3)(a)(iii) of the Agreement and substitutes “maintenance; and”.

This amendment is consequential to the amendment made by item 40 of Schedule 1 which repeals a segment of paragraph 61(3)(a).

Item 40 - Paragraph 61(3)(a) of Schedule 1

This item omits “for the purpose of clause 71; and” in paragraph 61(3)(a) of the Agreement.

This amendment is consequential to the repeal by item 45 of Schedule 1 of clause 71 of the Agreement, which included definitions used in Part IX (Finance) of the Agreement. Relevant definitions appear in clause 2.

Items 41, 42 and 43 - Subclause 61(4) of Schedule 1

Item 41 omits “design or function of any existing work” in paragraph 61(4)(a) of the Agreement and substitutes “design, function or operation of any existing work or significant part of any existing work”.

Item 42 inserts “or a significant part” in paragraph 61(4)(b) of the Agreement.

Item 43 inserts “prevent or” in paragraph 61(4)(c) of the Agreement.

Subclause 61(4) of the Agreement provides what kinds of work the Authority cannot direct to be maintenance.

The effect of the minor amendments made by items 41, 42 and 43 is to align the wording with the amended definition of maintenance (see item 12 of Schedule 1).

Item 44 - Subclause 70(1) of Schedule 1

This item omits “the asset” in subclause 70(1) of the Agreement and substitutes “the strategic asset”.

This amendment to update the terminology is consequential to the amendments made primarily by item 27 of Schedule 1 to replace asset management plans with strategic asset management plans.

Item 45 - Clause 71 of Schedule 1

This item repeals clause 71 of the Agreement.

Clause 71 contained definitions which were specific to Part IX (Finance) of the Agreement. These definitions have been moved by the amendments at items 9, 11 and 13 of Schedule 1 to the general definitions clause for the Agreement, clause 2, with some modifications which are described at those items.

Item 46 - Subclause 73(2) of Schedule 1

This item omits the words “estimate of costs which will be incurred during the next ensuing 30 years (or such other period as the Authority determines), as provided in the asset management plan” in subclause 73(2) of the Agreement and substitutes these with “forecast of costs prepared under subclause 34B(1)”.

Amended subclause 73(2) provides that the Ministerial Council must have regard to the Authority’s forecast of costs when setting annuity contributions.

This amendment is consequential to the insertion of clause 34B which sets out a new way of preparing a long-term forecast of costs (see item 22 of Schedule 1). 

Item 47 - Clause 74 of Schedule 1

This item repeals clause 74 of the Agreement.

Clause 74 provided a requirement for the Authority to prepare annual estimates for the next financial year and forward estimates for the following 3 years.

The repeal of clause 74 is consequential to the amendments to clause 34A made primarily by item 18 of Schedule 1.

Amended subclause 34A introduces multi‑year budgeting to improve funding certainty and longer‑term planning by replacing annual work plans, and annual estimates and forward estimates which together covered a 4-year period, with work plans of up to 4 years.

Item 48 - Subclause 77(1) of Schedule 1

Clause 77 of the Agreement deals with the application of moneys by the Authority – that is the spending, advancing and accumulating of money which has been contributed by Contracting Governments in accordance with clauses 72 (Apportionment of Costs) and 73 (Annuity Contributions) of the Agreement.

This item repeals subclause 77(1) of the Agreement and substitutes a new subclause 77(1).

New subclause 77(1) provides that, subject to clause 77, the Authority must apply, in a given financial year, the money which has been paid by Contracting Governments in accordance with the work plan and with the other provisions of the Agreement.

This amendment restructures and clarifies subclause 77(1) to improve readability of the whole of clause 77. Subclause 77(1) also now refers to the estimates in a work plan rather than to annual estimates under paragraph 74(1)(a). This is consequential to the repeal of clause 74 made by item 47 and the amendments to clause 34A made primarily by item 18 of Schedule 1 to reflect the introduction of multi‑year budgeting to improve funding certainty and longer‑term planning. 

Items 49, 50, 51 and 52 - Subclause 77(2) of Schedule 1

Item 49 omits “In any financial year, the Authority may” in subclause 77(2) of the Agreement and substitutes “The Authority may take any one or more of the following actions”. This is consequential to the changes to the structure of clause 77 which are intended to reflect the introduction of multi‑year budgeting.

Item 50 omits “the estimates prepared or revised under paragraph 74(1)(a) on any item which it” in paragraph 77(2)(a) of the Agreement and substitutes “the estimates referred to in the current work plan on any other item which the Authority”. This is consequential to the repeal of clause 74 made by item 47 and the amendments to clause 34A made primarily by item 18 of Schedule 1 to reflect the introduction of multi‑year budgeting to improve funding certainty and longer‑term planning.

Item 51 repeals paragraph 77(2)(b) of the Agreement and substitutes a new paragraph 77(2)(b).

New paragraph 77(2)(b) has the effect that the Authority may advance sums to any Constructing Authority, public authority or person for expenditure:

• In a given financial year in accordance with a work plan that is the current work plan for that financial year; or
• In any later financial year of that same work plan (which spans up to 4 years), in accordance with that work plan; or
• In a financial year of a later work plan, being a subsequent work plan that is approved under amended clause 34A of the Agreement.

Item 52 adds a new paragraph at the end of subclause 77(2) of the Agreement.

New subparagraph 77(2)(d) provides that the Authority may approve the movement of anticipated savings on an item in the estimates referred to in the current work plan to any financial year after the relevant financial year. The reference to ‘any financial year after the relevant financial year’ would include both a later financial year of the current work plan, and a financial year of a later work plan, being a subsequent work plan that is approved under amended clause 34A of the Agreement. 

Together, the amendments to subclause 77(2) allow the Authority to, in accordance with a work plan approved under clause 34A of the Agreement:

• Spend anticipated savings from one item in a work plan on a different item in that current, multi-year, work plan;
• Approve the movement of anticipated savings on an item in a current work plan to a subsequent work plan;
• Advance funds for expenditure in a later financial year of the current work plan or a subsequent work plan.

The purpose of these amendments is to improve financial flexibility and management under multi‑year budgets by providing flexibility, subject to the work plan approval process under clause 34A, to use, accumulate and move savings (underspends) across multi-year budget cycles to reprofile expenditure on the activities related to the underspends, with the objective of reducing under-expenditure.

Item 53 - Subclause 77(3) of Schedule 1

This item omits “subsequent years” from subclause 77(3) of the Agreement and substitutes “later financial years”. This aligns terminology with the other amendments to clause 77.

Item 54 - Paragraph 77(4)(c) of Schedule 1

This item repeals paragraph 77(4)(c) of the Agreement and substitutes new paragraphs 77(4)(c) and (d).

New paragraphs 77(4)(c) and (d), which deal with the expenditure of annuity contributions received under clause 73 of the Agreement, restructure the content of previous paragraph 77(4)(c) to improve readability, but do not alter the substantive content of that paragraph.

Item 55 - Subclause 78(1) of Schedule 1

This item omits “paragraph 74(1)(a) and” from subclause 78(1) of the Agreement.

Amended subclause 78(1) provides for payments by the Authority to Constructing Authorities in accordance with the estimates referred to in the work plan, rather than including references to both the work plan and the estimates referred to in paragraph 74(1)(a). Work plan is defined in clause 2 of the Agreement by reference to clause 34A.

This amendment is consequential to the repeal of clause 74 (annual and forward estimates) made by item 47 of Schedule 1 and the amendments to clause 34A (work plan) made primarily by item 18 of Schedule 1.

Item 56 - Clause 134 of Schedule 1 (heading)

This item omits “Ministerial Council1” from the clause 134 heading in the Agreement and substitutes “Ministerial Council”.

This corrects a typographical error in the heading.

Item 57 - Part XVII of Schedule 1 (heading)

This item repeals the Part XVII heading (Transitional Provisions) in the Agreement and substitutes it with a new heading: “PART XVII – APPLICATION, SAVING AND TRANSITIONAL PROVISIONS”.

This reflects that Part XVII of the Agreement, as amended by item 58 of Schedule 1, contains application and saving provisions as well as transitional provisions.

Item 58 - At the end of Part XVII of Schedule 1

This item inserts a new Division 3 (Amendments Made by the Water Amendment (Murray-Darling Basin Agreement) Regulations 2026) at the end of Part XVII of the Agreement.

This new Division sets out the application, saving and transitional provisions relating to amendments of the Agreement made by this Part, which is Part 1 of Schedule 1 to the Water Amendment (Murray‑Darling Basin Agreement) Regulations 2026.

New clause 153 of the Agreement provides that in this new Division, the term amending Part means Part 1 of Schedule 1 to the Water Amendment (Murray‑Darling Basin Agreement) Regulations 2026.

Part 1 of Schedule 1 to the Regulations commences on the day after registration of the Regulations.

New clause 154 of the Agreement sets out the following application, saving and transitional provisions:

• New subclause 154(1) provides that the amendments of clause 34A made by the amending Part apply in relation to a specified period for a work plan that ends on 30 June 2030 (unless a shorter period is determined by the Ministerial Council) and each later specified period for the work plan.

This provision is intended to allow the first work plan after the commencement of these Regulations to start on 1 July 2026 or a later date, but either way still finish on 30 June 2030 (or an earlier date) as a result of the following:

• Amended subclause 34A(1) allows the Ministerial Council to determine a date for the preparation of the draft work plan (this could be 1 July 2026 or a later date); and
• New subclause 34A(1A) allows the Ministerial Council to determine a specified period for the work plan shorter than 4 years (so, if the work plan commences on, for example, 1 October 2026, then the Ministerial Council can determine that the specified period for the work plan be for a period of 3 years and 9 months and still end on 30 June 2030; or alternatively, the Ministerial Council can determine that the specified period for the work plan be for a shorter period, ending on an earlier date).

For later or subsequent work plans – the specified period for the work plan would (by the operation of subclause 34A(1A)) be a period of 4 years or a shorter period determined by Ministerial Council.

• New subclause 154(2) provides that an asset management plan that was in effect under clause 53 immediately before the commencement of the amending Part continues in effect (and may be dealt with) on and after that commencement as if it were a strategic asset management plan prepared under subclause 53(1) as substituted by the amending Part.

The effect of this is that the asset management plan that is in effect at the time Part 1 of Schedule 1 commences is deemed as a strategic asset management plan. Subject to subclause 154(3) below, provisions referring to the strategic asset management plan would include the asset management plan that was in effect immediately before the commencement of Part 1 of Schedule 1. This would include provisions relating to monitoring the implementation of the plan and preparing amendments to the plan under subclause 53, as well as other provisions of the Agreement which refer to a strategic asset management plan.

• New subclause 154(3) provides that there is no requirement, on or after the commencement of the amending Part, for the Authority to review the plan continued in force by subclause 154(2). This means that the new 4-yearly review requirement in amended subclause 53(7) will apply to the first strategic asset management prepared plan after commencement.

• New subclause 154(4) provides that the amendment of clause 56 made by the amending Part applies in relation to an authorisation by the Authority on or after the commencement of the amending Part. The effect of this provision is that the Authority may authorise the broader scope of works included in amended subclause 56(1), and to the higher dollar amount in amended subclause 56(3), on or after the day after the Regulations are registered.

• New subclause 154(5) provides that the amendment of subclause 60(2) made by the amending Part applies in relation to a request for tender made on or after the commencement of the amending Part. The effect of this provision is that where a request for tender was made before commencement and the tender is proposed to be accepted by the Constructing Authority after commencement, the Constructing Authority would need to seek approval from the Authority if the tender exceeds $2 million, rather than the higher amount of $4 million in the amended subclause 60(2).

• New subclause 154(6) provides that clauses 74 and 77, as in force immediately before the commencement of the amending Part, continue to apply on and after the commencement of the amending Part until the first work plan is approved under clause 34A, as amended by the amending Part.

This is intended to provide for a scenario where there is a gap between the current work plan ending (on 30 June 2026) and the new 4-year work plan commencing. During this gap (if any), this saving provision would allow the Authority to continue to apply the money in accordance with clause 74 (which dealt with annual and forward estimates and which is repealed by the amending Part) and clause 77 (which deals with application of moneys by the Authority), as it was immediately prior to the commencement of the amendments made by the amending Part.

• New subclause 154(7) provides that the amendments of clause 77 made by the amending Part apply in relation to work plans approved under clause 34A, as amended by the amending Part, on or after the commencement of the amending Part. The effect of this provision is that clause 77, which deals with application of moneys by the Authority, as amended by the amendments made by amending Part, applies to work plans which are approved under clause 34A on or after the day after registration of the Regulations.

Items 59 and 60 - Subclause 3(4) of Schedule B of Schedule 1

Item 59 omits “as defined in clause 71” from subclause 3(4) of Schedule B to the Agreement and substitutes “as defined in clause 2”.

Item 60 omits “paragraphs (a), (f) and (j) of the definition of investigations, construction and administration costs in clause 71” from paragraph 3(4)(c) of Schedule B to the Agreement and substitutes “paragraphs (a), (h) and (l) of the definition of investigations, construction and administration costs in clause 2”.

These amendments are consequential to the amendments made by item 11 of Schedule 1, which moves the definition of investigations, construction and administration costs from clause 71 of the Agreement to clause 2 of the Agreement and makes amendments to that definition.

Item 61 - Subclause 12(4) of Schedule B of Schedule 1

This item omits “the asset” in subclause 12(4) of Schedule B to the Agreement and substitutes “the strategic asset”.

This is consequential to the amendments to the terminology in clause 53 of the Agreement from asset management plan to strategic asset management plan made primarily by item 27 of Schedule 1.

Part 2 – Administrative support

Item 62 - Clause 2 of Schedule 1 (definition of “officer”)

This item repeals the definition of officer in clause 2 of the Agreement and substitutes a new definition of officer.

The previous definition referred to a person who is a member of the staff of the Authority within the meaning of the Act.

The new definition:

• Retains the existing definition but includes a reference to section 206 of the Act, which relates to the Authority’s Staff; and
• Adds a new alternative person to the definition, being an APS employee in the Department who is assisting the Authority as mentioned in section 207 of the Act.

The term officer is used in:

• Clause 14 of the Agreement, which deals with resolutions of the Ministerial Council other than at meetings, and
• Clause 28 of the Agreement which deals with resolutions of the Committee other than at meetings.

In each case, an officer may perform certain procedural (secretariat) functions for such ‘out-of-session’ resolutions. Also in each case, the officer has to be authorised by the Authority to perform those functions.

The purpose of this amendment is to allow additional persons to perform secretariat functions for out-of-session resolutions of these bodies. 

Section 207 of the Act provides that the Authority may also be assisted by a range of persons, including employees of Agencies (within the meaning of the Public Service Act 1999 (the Public Service Act)), whose services are made available to the Authority in connection with the performance of any of its functions.

Paragraph (b) of the amended definition of officer in clause 2 of the Agreement would comprise a subset of the persons mentioned in section 207 in that they would need to be:

• APS employees – which is intended, in accordance with the Acts Interpretation Act 1901 (the Acts Interpretation Act), to have the same meaning as in the Public Service Act; and
• Employed in the Department – which is intended to be, in accordance with section 19A of the Acts Interpretation Act, the Department of State of the Commonwealth that deals with this matter and is administered by the Minister or Ministers administering this provision in relation to the relevant matter. At the time these Regulations were made, this was the Department of Climate, Change, Energy, the Environment and Water, administered by the Minister administering the Water Act 2007.

Accordingly, other persons who can assist the Authority under section 207 of the Act, such as employees of other Departments, or employees or officers of a State, would not be able to perform the functions of an officer in clauses 14 and 28 of the Agreement.

Part 3 – Commencement of amendments of the agreement

Item 63 - Subclause 5(2) of Schedule 1

This item repeals subclause 5(2) of the Agreement and substitutes a new subclause 5(2) including a new note.

Subclause 5(2) previously provided that amendments to the Agreement commence upon registration of a legislative instrument, in accordance with the Legislation Act, that amends Schedule 1 to the Act (which contains the Agreement) by incorporating into the Agreement amendments that have been agreed by the Ministerial Council (emphasis added).

New subclause 5(2) provides that a legislative instrument amending the Agreement commences in accordance with the Legislation Act.

The new note below subclause 5(2) clarifies that section 12 of the Legislation Act (Commonwealth) deals with the commencement of a legislative instrument.

The purpose of this amendment is to align the commencement of legislative instruments amending the Agreement with the requirements of section 12 of the Legislation Act. This will allow all amendments to the Agreement to commence the day after registration (in accordance with paragraph 12(1)(a) of the Legislation Act) or on a specified date (in accordance with paragraph 12(1)(b) of the Legislation Act).

While amended subclause 5(2) of the Agreement no longer refers to the legislative instrument incorporating into the Agreement amendments that have been agreed by the Ministerial Council, this continues to be required under:

• Subclause 18C(1) of the Act which provides that regulations may make amendments to Schedule 1 of the Act, which contains the Agreement, by incorporating into the Agreement amendments made to, and in accordance with, the Agreement;
• Paragraph 5(3)(a) of the Agreement which provides that the Commonwealth Government may only register an instrument that incorporates into the Agreement amendments that have been agreed by the Ministerial Council; and
• Paragraph 9(d) of the Agreement which sets out that one of the functions of the Ministerial Council is to agree to amendments to the Agreement.

SCHEDULE 2 – TRANSFERRING TRADEABLE WATER RIGHTS AND REPEAL OF CAP ON DIVERSIONS

This Schedule sets out amendments relating to transfers of tradeable water rights in the southern-connected Basin and the repeal of the cap on diversions. Respectively, these amendments relate to Schedule D ‘Transferring Water Entitlements and Allocations’ and Schedule E ‘Cap on Diversions’ of the Agreement at Schedule 1 to the Act.

This Schedule also makes consequential amendments to the Table of Contents in the Agreement, and to Schedule F ‘Effect of the Snowy Scheme’ and Schedule G ‘Accounting for South Australia’s Storage Rights’ of the Agreement.

Schedule 2 is presented in two parts.

• Part 1 – Amendments commencing on the day after registration
• Part 2 – Amendments commencing on 1 July 2026

Schedule D of the Agreement (and its protocols) currently sets out the arrangements for accounting, administration and coordination of interstate and intervalley water trade between New South Wales, Victoria, South Australia and the Australian Capital Territory in the southern-connected Basin. The Schedule D framework was established before the Basin Plan settings took effect, at a time when water trade was new. However, the suite of legislative provisions at the State and Commonwealth level that regulate and govern trades and transfers of water rights have grown significantly along with water markets since this time.

The Basin Plan Water Trading Rules (Chapter 12 of the Basin Plan) and water trading rules provided for under State water management law have impacted upon the role of Schedule D within the broader legislative framework.

Items 1, 2, 7, 8, 9, 10, 11, 12 and 13 of Schedule 2 to the Regulations revise Schedule D to clarify its purpose, application, and the role of the Authority and Contracting Governments in intervalley and interstate transfers.

The amendments implement the recommendations of the 2024 Schedule D Review: Synthesis Report[5] (the Review). The Review was led by the Authority in consultation with the Trade Working Group which includes all Basin State governments. The Review concluded that the existing Schedule D and its protocols are outdated, overly complex and misaligned with current water market practices. The final synthesis report and list of 29 Review recommendations can be accessed on the Authority’s website.[6]

The primary focus of the amendments is therefore to streamline the Schedule D framework, remove outdated and redundant provisions, ensure consistency with the Act and Basin Plan settings, and improve transparency and coordination in decision making processes under Schedule D.

The main changes to Schedule D are:

• Clarifying the role of Schedule D in setting out the agreed arrangements for interstate and intervalley transfers, rather than dictating what is permissible. This includes:
  • Shifting away from prescribing specific entitlements and allocations that the Schedule applies to, and instead providing that the Schedule applies to the tradeable water rights permitted to be transferred between States and valleys under State water management law.
  • Removing references to outdated trade mechanisms that are no longer in practice and instead referring to transfers generally, without specifying mechanisms or types, to enable Schedule D to remain appropriate over time as market practices continue to evolve.
  • Introducing and formalising the term ‘southern-connected Basin’ as a concrete geographical concept that captures the existing geographical scope of hydrologically connected surface water resources in the southern Murray-Darling Basin for trading while also enabling the Ministerial Council to expand on this, as necessary, over time.
• Streamlining the Schedule D framework to enable greater operational flexibility in the management and administration of interstate and intervalley transfers. This includes:
  • Introducing a power for the Committee to make procedures which will enable administrative processes to be detailed and updated over time without requiring legislative change.
  • Removing detailed procedural information on adjusting the delivery of State water entitlements and reporting information about transfers to the Authority, and instead empowering the protocols and procedures to cover these matters.
• Improving clarity and transparency in the roles and functions of State Contracting Governments and the Authority in managing accounts and the enabling arrangements for facilitating transfers across the Barmah Choke. This includes:
  • Clarifying that States are responsible for maintaining valley accounts, consistent with current practices.
  • Lifting up existing functions undertaken by the Authority in protocols under Schedule D, including maintaining a State transfer account, a Barmah Choke entitlement record, and a Barmah Choke allocation account.
  • Clarifying the role of the Authority in providing advice about transfers across the Barmah Choke.

As outlined above, the amendments to Schedule D rely on the concept of tradeable water rights. This term is defined in subsection 4(1) of the Act.

 Tradeable water rights means:

1.    Water access rights; or
2.    Water delivery rights; or
3.    Irrigation rights.

This ensures Schedule D is both consistent with the Act, and capable of adapting to changes in respect of water rights described in state-based legislation (either in respect of the nature of rights or the terms used to describe them), without specifying particular terms, legislation, or requiring the Agreement to be amended following state level reform in future.

Schedule E of the Agreement previously established the long-term caps on the volume of surface water used for consumptive purposes in the river valleys within the Murray-Darling Basin. Caps on diversions have now been superseded by the introduction of Sustainable Diversion Limits (SDLs) under the Basin Plan in 2019. As such, the accounting and reporting arrangements under Schedule E have been replaced by SDL accounting, reporting and compliance requirements under the Basin Plan.

As a result, item 14 of this Schedule to the Regulations repeals Schedule E of the Agreement (including its Appendices) at Schedule 1 to the Act.

Relevant to this, items 15, 16 and 17 make consequential amendments to Schedule F of the Agreement. Item 5 inserts a new clause 155 to the Agreement which sets out an application provision relating to the repeal of Schedule E by the Regulations.

Further information on the context of the Schedule E repeal is provided in the background section of this Explanatory Statement.

Part 1 – Amendments commencing on the day after registration

Part 1 of Schedule 2 to the Regulations contains amendments to Schedule D which will commence the day after registration.

Protocols and procedures will supplement Schedule D by setting out detailed principles and processes which support on ground implementation. In order to enable new protocols and procedures to commence at the same time as the amended Schedule D settings, it is practically necessary to provide time for them to be made prior to their commencement. For this reason, the powers to make protocols and procedures will commence the day after registration to provide an opportunity to make new protocols and procedures which will commence on 1 July 2026.

Item 1 - Clause 6 of Schedule D of Schedule 1

This item repeals clause 6 of Schedule D, which sets out the power for the Authority to make protocols to supplement the provisions of the Schedule. It substitutes new powers for the Authority to make protocols (clause 6) and inserts new powers for the Basin Officials Committee (the Committee) to make procedures which are administrative in character (clause 7A). The power of the Committee to make procedures is additional to the functions otherwise conferred under Part IV of the Agreement and relevant aspects of the Act.

Protocols are intended to be enduring, principle-based instruments. Procedures are administrative in character and will engage with operational, administrative and procedural matters that may change over time.

The new clauses 6 and 7A commence the day after registration to enable new protocols and procedures to be made under Schedule D for commencement on 1 July 2026, alongside the amended Schedule D settings. This will support an efficient and holistic transition from the previous Schedule D settings to the amended Schedule D settings.

A new definition for protocol will be inserted into clause 3 (Definitions) by item 7. This definition provides that protocol means a protocol made by the Authority under clause 6. Item 7 also inserts a definition of procedures into clause 3 (Definitions). This definition provides that procedures means procedures made by the Committee under clause 7A.

Clause 6 (Power to make protocols)

Clause 6 replaces the repealed clause 6 of Schedule D relating to the making of protocols by the Authority. Like the repealed clause 6, this clause provides that the Authority may make protocols in relation to matters under Schedule D, how this is to occur, the consultation requirements that the Authority must follow, and the parameters that apply to protocols.

Section 18D of the Act provides that protocols made by the Authority under a Schedule to the Agreement (including Schedule D) are legislative instruments. Section 18D also provides that neither section 42 (disallowance) nor Part 4 of Chapter 3 (sunsetting) of the Legislation Act applies to protocols.

Subclause 6(1) reflects that the Authority may, in consultation with the Committee, from time to time make protocols with respect to the matters covered by the Schedule, including those listed. This supports clarity and functionality of the exercise of this power into the future, noting that the Authority has exercised its existing power under clause 6 of Schedule D to make protocols – with seven protocols currently in force. The insertion of clause 21 by item 2 below provides that, as a transitional matter, these existing protocols will remain in force as though they were made under clause 6 of this Schedule.

Paragraph 6(1)(a) provides that protocols may be made in relation to facilitating the transfer of tradeable water rights between hydrologically connected river systems in the southern-connected Basin. This is generally consistent with the repealed paragraph 6(1)(f) however expressed more broadly to enable greater flexibility for the protocols to cover matters directly relevant to the core purpose of Schedule D.

Paragraph 6(1)(b) provides that protocols may be made in relation to adjusting the delivery of State water entitlements under Part XII of the Agreement to take into account, and to give effect to, interstate transfers of tradeable water rights. The inclusion of this paragraph is consistent with the new clause 8, inserted by item 9 of Schedule 2, which relocates detail on adjustments from the repealed Appendix 2 to protocols made under Schedule D.

Paragraph 6(1)(c) provides that protocols may be made in relation to maintaining and adjusting valley accounts in accordance with subclause 9(1). This is generally consistent with the repealed paragraph 6(1)(c).

Paragraph 6(1)(d) provides that protocols may be made in relation to providing information about valley account balances in accordance with subclause 9(2) for each valley in the State. This is a new addition and has been included as a result of the new clause 9 (inserted by item 10 of Schedule 2) which clarifies that the responsibility for maintaining valley accounts rests with the State Contracting Governments and not the Authority.

Paragraph 6(1)(e) provides that protocols may be made in relation to designated water supply sources and releasing water from valley accounts in accordance with subclauses 9(3) and (4). This is generally consistent with the repealed paragraph 6(1)(c), with the additional inclusion of designated water supply sources consistent with the new clause 9, inserted by item 10 of Schedule 2.

Paragraph 6(1)(f) provides that protocols may be made in relation to maintaining and adjusting a State transfer account, a Barmah Choke entitlement record and a Barmah Choke allocation account in accordance with clause 11. The inclusion of this paragraph is consistent with new clause 11, inserted by item 10 of Schedule 2.

Paragraph 6(1)(g) provides that protocols may be made in relation to providing advice about water allocation transfers across the Barmah Choke in accordance with clause 12. The inclusion of this paragraph is consistent with new clause 12, inserted by item 10 of Schedule 2.

Paragraph 6(1)(h) provides that protocols may be made in relation to restricting or regulating interstate transfers and intervalley transfers across the Barmah Choke in accordance with clause 12A. The inclusion of this paragraph is consistent with new clause 12A, inserted by item 10 of Schedule 2.

Paragraph 6(1)(i) provides that protocols may be made in relation to providing information about interstate transfers and intervalley transfers of tradeable water rights in accordance with subclause 13(1). This is generally consistent with the repealed paragraph 6(1)(f). The inclusion of this paragraph is also consistent with new clause 13, inserted by item 10 of Schedule 2.

Paragraph 6(1)(j) provides that protocols may be made in relation to monitoring and reporting interstate transfers of tradeable water rights. This is consistent with repealed paragraph 6(1)(g).

Paragraph 6(1)(k) provides that protocols may be made in relation to implementing resolutions of the Ministerial Council. This expands upon repealed paragraph 6(1)(i) as it is no longer limited to protocols which implement Ministerial Council resolutions about transferring environmental entitlements.

Subclause 6(2) provides that a protocol made under subclause (1) must not purport to affect or interfere with the responsibilities of a State to manage a water resource, except as provided for in the Agreement. This is consistent with the repealed paragraph 13(2)(d), which will be repealed by item 10.

Subclause 6(3) provides that, if the Authority plans to, or has determined to, make, amend, review or revoke a protocol, the Authority must notify each Contracting Government of the proposed protocol, amendment, review or revocation, and of its subject matter. This broadly replicates the settings under repealed subclause 6(2) of Schedule D, which provided for the Authority to notify each Contracting Government whenever it was considering making, amending, reviewing or revoking a protocol and of the subject matter of any proposed protocol, amendment, review or revocation. Subclause 6(3) provides for notification, with greater clarity in the threshold that must be met for the obligation to be triggered. The trigger for the Authority to notify Contracting Governments has been clarified from “whenever it is considering” said actions to “if the Authority plans to, or has determined to, undertake” said actions.

Subclause 6(4) provides that a Contracting Government may nominate a person with relevant expertise and experience to give advice to the Authority in preparing, amending, reviewing or revoking a protocol. This is consistent with the repealed subclause 6(3).

Subclause 6(5) provides that the Authority must consider any advice given by a person nominated under subclause (4), before it makes, amends or revokes a protocol. This is consistent with the repealed subclause 6(4).

Subclause 6(6) provides that a protocol is void to the extent that it is inconsistent with the Agreement (including its Schedules). This is consistent with the repealed paragraph 6(5)(b).

Subclause 6(7) provides that the Authority may on its own initiative amend, review or revoke a protocol made under subclause (1); or review a protocol at the request of a Contracting Government. This is consistent with the repealed subclause 6(6).

Subclause 6(8) provides that the Authority must not delegate any power conferred on it by subclauses (1) and (7). This maintains the requirements in the repealed subclause 6(7).

Subclause 6(9) provides that each State Contracting Government must, in accordance with its own laws, take such action as is necessary to ensure that the matters set out in protocols are observed and applied by each approval authority and person in that State. This reflects the commitment of State Contracting Governments to implementing arrangements agreed between the Contracting Governments to give effect to the Basin Plan, the Act and the arrangements contemplated by the Agreement consistent with clause 1 and clause 6 of the Agreement. Subclause 6(9) also reflects the chapeau to clause 1 (Purposes) of Schedule D, which requires the purposes of Schedule D to be interpreted consistently with the laws of each State, the Agreement, the National Water Initiative, the Basin Plan and policies adopted by the Ministerial Council. In doing so, subclause 6(9) recognises and reflects the role of State law in governing the transfer of water rights and allocations.

Clause 7A (Power to make procedures)

Clause 7A is a new clause inserted into Schedule D which introduces a power for the Committee to make procedures under the Schedule.

Subclause 7A(1) provides that the Committee may make, amend or revoke procedures. The procedures may be made from time to time, as the Committee considers necessary or desirable to give effect to Schedule D or a protocol made under clause 6 of Schedule D.

Subclause 7A(2) clarifies that the Committee may make procedures setting out processes in relation to any or all of the matters covered by subclause 6(1), which sets out the matters that protocols may cover. However, subclause 7A(2) does not limit subclause 7A(1), and so the procedures may cover a broader range of matters than those covered by the protocols.

Subclause 7A(3) provides that procedures are void to the extent that they are inconsistent with the Agreement, its Schedules, or a protocol made under Schedule D.

Subclause 7A(4) requires the Authority to publish the procedures on its website. The publication must be made as soon as practicable after the procedures are made or amended.

Subclause 7A(5) provides that procedures will only come into effect when they are published on the Authority’s website.

Subclause 7A(6) provides that procedures made by the Committee under subsection 7A(1) are not legislative instruments. As the procedures will only set out processes, they would not be an instrument to which section 8 of the Legislation Act would apply. In particular, they could not determine the law nor alter the content of the law for the purposes of subparagraph 8(4)(b)(i) of that Act, nor have the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right for the purposes of subparagraph 8(4)(b)(ii) of that Act. However, to avoid any doubt, subsection 7A(6) provides that the procedures are not legislative instruments.

Subclause 7A(7) provides that each State Contracting Government must take such action within the State as may be necessary to ensure that the processes referred to in the procedures are applied and observed by each approval authority and person in that State. Subclause 7A(7) reflects the commitment of State Contracting Governments under clause 1 of the Agreement to implementing arrangements agreed between the Contracting Governments to give effect to the Basin Plan, the Act and State water entitlements.

Item 2 - After Part IV of Schedule D of Schedule 1

This item inserts a new Part V – Application, Saving and Transitional Provisions into Schedule D. Part V sets out application, saving and transitional provisions necessary to support the transition to the amended Schedule D settings. This item contains clause 20 - an application provision - and clause 21 - a savings provision. Both clauses 20 and 21 support the commencement of clauses 6 and 7A the day after this instrument is registered.

Clause 20 (Application provision)

Clause 20 is a new clause inserted into Schedule D. Clause 20 provides that, for the purposes of the operation of clause 6 or 7A of this Schedule before 1 July 2026, it is to be assumed that Parts I, III and IV of this Schedule, as substituted by Part 2 of Schedule 2 to the Regulations, had commenced at the same time as that clause.

The effect of this is to provide that clause 6 and 7A should be read as though the remainder of the amendments have taken effect at the time that any protocols and/or protocols are made in advance of those remaining amendments having been made. For example, the new clauses 6 and 7A utilise terms that are defined in Part 2 of Schedule 2 to the Regulations, such as approval authority, which will be inserted by item 7 of Part 2 of this Schedule to the Regulations.

The purpose of clause 20 is to effectively enable the earlier commencement of new clauses 6 and 7A (relating to the power to make protocols and procedures), on the day after registration, to allow new protocols and procedures to be made before 1 July 2026 to support consistent and effective commencement arrangements as at that date. If any protocols or procedures are made before Part 2 of Schedule 2 to the Regulations commences, the protocols or procedures would commence on 1 July 2026, to align with the new Schedule D settings as provided for in Part 2 of Schedule 2 to the Regulations.

Clause 21 (Saving provisions)

Clause 21 is a new clause inserted into Schedule D. The purpose of clause 21 is to set out savings provisions in relation to protocols which were made under the repealed clause 6 of Schedule D and which are still in force on the commencement of subclause 21(1).

These protocols will continue in force and will be treated as though they had been made under the new clause 6 of Schedule D, which was inserted by item 1 of Part 1 of this Schedule to the Regulations.

The purpose of this is to ensure that the existing protocols remain in place and operative until they are revoked by the Authority.

Part 2 – Amendments commencing 1 July 2026

Part 2 of Schedule 2 to the Regulations contains further amendments to Schedule D which will commence on 1 July 2026. This includes consequential amendments to Schedule G to the Agreement.

Part 2 of Schedule 2 also contains items 5, 14, 15, 16, and 17 which all relate to the repeal of Schedule E to the Agreement, including amendments to Schedule F to the Agreement which are consequential to that repeal.

Item 3 - Schedule 1 (table of contents)

Items 3 and 4 make amendments to the Table of Contents in Schedule 1 of the Act which are consequential to the amendments in this Schedule to the Regulations. Item 3 omits the entries relating to Schedules D and E (including appendices) from the Table of Contents in the Agreement (contained in Schedule 1 to the Act). It substitutes updated entries for Schedule D in the Table of Contents in the Agreement (contained in Schedule 1 to the Act).

This is a consequential amendment necessary to ensure that the amendments to headings and clauses in this Schedule to the Regulations are accurately reflected in the Table of Contents for the Agreement. The effect of this on the Table of Contents is to update the entries for Schedule D and to remove the entries for Schedule E (including Appendices).

Item 4 - Schedule 1 (table of contents)

This item omits the entry for clause 18 of Schedule F (Long Term Diversion Caps) from the Table of Contents in the Agreement (contained in Schedule 1 to the Act). Clause 18 of Schedule F is repealed by item 17 of this Schedule to the Regulations, as a consequential amendment arising from the repeal of Schedule E by item 14 of this Schedule to the Regulations.

Item 5 - At the end of Division 3 of Part XVII of Schedule 1

This item adds a new clause 155 to the Agreement (contained in Schedule 1 to the Act). Clause 155 is an application provision relating to the repeal of Schedule E to the Agreement made by the Regulations. Clause 155 provides that clause 13 of Schedule E to the Agreement (relating to reporting obligations), as in force immediately before 1 July 2026, does not apply in relation to the water year (within the meaning of subclause 2(1) of Schedule E as so in force) beginning on 1 July 2025.

This clause is included for the avoidance of doubt. The reporting obligation under clause 13 of Schedule E would be triggered on 1 July 2026 in respect of the water year from 1 July 2025 to 30 June 2026, if Schedule E had not already been repealed. As this Part commences on 1 July 2026, this clause makes it clear that the reporting obligation under clause 13 of Schedule E is not triggered prior to Schedule E’s repeal, and there is no need for states to report in respect of the previous water year.

Item 6 - Schedule D of Schedule 1 (heading)

This item and the following items 7-11 all amend Schedule D to the Agreement (contained in Schedule 1 to the Act).

Item 6 omits the words “WATER ENTITLEMENTS AND ALLOCATIONS” from the heading of Schedule D, and substitutes the words “TRADEABLE WATER RIGHTS”. This amendment is consistent with the shift in language to tradeable water rights as set out in the other amendments to Schedule D in this Schedule to the Regulations. Further detail in relation to this change is outlined above in the opening description of the Schedule 2 amendments.

Item 7 - Part I of Schedule D of Schedule 1

This item repeals Part I of Schedule D (clauses 1 to 3), relating to preliminary matters, and substitutes a new Part I – Preliminary.

The new Part I contains three clauses. These are:

• Clause 1 (Purposes),
• Clause 2 (Circumstances in which this Schedule does not apply), and
• Clause 3 (Definitions).

Clause 1 (Purposes)

Clause 1 replaces the repealed clause 1, which sets out the purposes of Schedule D. The clause retains key aspects regarding the purposes of Schedule D. However, it updates the purposes of Schedule D to more clearly distinguish between the different matters the Schedule covers, better reflect the roles of the Authority and Contracting Governments under the Schedule, and to capture the updated Schedule D settings including the introduction of procedures and changes to terminology. These changes reflect the overall purposes of the amendments to Schedule D, which are to modernise and improve administration and transparency of interstate and intervalley transfer arrangements.

Subclause 1(1) provides for the purposes of Schedule D to be consistent with the laws of each State, the Commonwealth water legislation (including the Agreement and the Basin Plan), the National Water Initiative and policies from time to time adopted by the Ministerial Council. This is consistent with the repealed introductory paragraph of clause 1.

Paragraph 1(1)(a) broadly retains the existing purpose of Schedule D to contribute to an efficient and effective water market by setting out administrative and coordination arrangements to facilitate interstate transfers and intervalley transfers of tradeable water rights in the southern-connected Basin. This is consistent with repealed paragraphs 1(a) and 1(d), but utilises updated terminology to refer to the types of rights and the geographic area for the application of the Schedule.

Paragraph 1(1)(b) maintains that one of the purposes of Schedule D is to enable the Authority to make, amend, review and revoke protocols under the Schedule to supplement its provisions. This is consistent with repealed paragraph 1(e).

Paragraph 1(1)(c) provides that one of the purposes of Schedule D is to enable the Committee to make, amend and revoke procedures under the Schedule to supplement its provisions. This purpose underpins new clause 7A, which is inserted by item 1 of this Schedule to the Regulations.

Paragraph 1(1)(d) provides that one of the purposes of Schedule D is to require State Contracting Governments to maintain and adjust valley accounts for each valley in the State located in the southern-connected Basin. This is generally consistent with repealed paragraphs 1(b) and 1(c). However, this paragraph now provides greater detail for the responsible party for adjusting and maintaining these accounts and the scope of that responsibility, and underpins new clause 9 (inserted by item 10 of this Schedule to the Regulations).

Paragraph 1(1)(e) provides that one of the purposes of Schedule D is to require the Authority to maintain and adjust a State transfer account, a Barmah Choke entitlement record and a Barmah Choke allocation account. This is generally consistent with repealed paragraphs 1(b) and 1(c). It underpins new clause 11 (inserted by item 10 of this Schedule to the Regulations), which provides greater clarity on the accounts and records which must be maintained.

Paragraph 1(1)(f) provides that one of the purposes of Schedule D is to enable the Authority to provide advice about water allocation transfers across the Barmah Choke. This is generally consistent with repealed clause 13 and was previously set out through repealed paragraphs 1(c) and (d). This paragraph clarifies the functions conferred on the Authority in respect of transfers across the Barmah Choke. It underpins new clause 12, inserted by item 10 of this Schedule to the Regulations.

Paragraph 1(1)(g) provides that one of the purposes of Schedule D is to enable the protocols to restrict or regulate interstate transfers and intervalley transfers across the Barmah Choke. This is generally consistent with repealed clause 13 and was previously set out through repealed paragraphs 1(c), (d) and (e). It provides for protocols to restrict or regulate interstate transfers and intervalley transfers supporting Barmah Choke trade opportunities. It underpins new clause 12A, inserted by item 10 of this Schedule to the Regulations.

Paragraph 1(1)(h) provides that one of the purposes of Schedule D is to require State Contracting Governments to provide information to the Authority about interstate transfers and intervalley transfers of tradeable water rights in the southern-connected Basin. This is generally consistent with repealed paragraph 1(f). It underpins clause 13 which is inserted by item 10 of this Schedule to the Regulations.

Subclause 1(2) clarifies that a reference to the National Water Initiative in subclause (1), which sets out the purposes of Schedule D and that they are consistent with various laws, policies and the National Water Initiative, includes a reference to another agreement (however described) that supersedes, replaces, amends, supplements or consolidates the National Water Initiative. This ensures that the reference to the National Water Initiative, with which the purposes of Schedule D are consistent, is not set at the current time and will include future iterations of such an agreement, however it is described. For example, it would be interpreted to refer to the National Water Agreement[7], which will replace the National Water Initiative, subject to that Agreement being finalised and agreed by all jurisdictions.

Clause 2 (Circumstances in which this Schedule does not apply)

Clause 2 replaces the repealed clause 2, which formerly set out the application of Schedule D.

Clause 2 retains key aspects regarding the application of Schedule D and does not substantively change the application of Schedule D, including reflecting that the application of Schedule D is subject to the laws of each State. Clause 2, in connection with clause 1, provides that the Schedule applies to interstate and intervalley transfers of tradeable water rights permitted to be transferred under State water management law in the southern-connected Basin.

Clause 2 does this by stating the circumstances in which Schedule D does not apply under the Agreement.

Paragraph 2(a) provides Schedule D will not apply where a transfer is a transfer of tradeable water rights of sources of surface water outside of the southern-connected Basin. For example, the Schedule does not apply to transfers of water allocations between NSW and Queensland in the Border Rivers area.

Paragraph 2(b) provides Schedule D will not apply where a transfer is a transfer that is not an interstate or intervalley transfer. For example, the Schedule would not apply to transfers of tradeable water rights that occur within the same valley within a State.

Paragraph 2(c) provides that Schedule D will not apply where a transfer is a transfer of ground water. That is, the Schedule would not apply to any transfers of ground water rights.

Clause 2 removes unnecessarily prescriptive elements from the Schedule by no longer relying on water entitlements and allocations to be specified in Appendix 1 to Schedule D. Repealed Appendix 1, which listed the entitlements and allocations that were subject to Schedule D, reflected the origins of Schedule D and the incremental approach adopted by States to progressively allow intervalley and interstate trading in various systems.

The purpose of this change is to enable Schedule D to be capable of adapting to changes in respect of water rights in state-based legislation (either in respect of the nature of rights or the terms used to describe them), without specifying terms or legislation, or requiring the Agreement to be amended following state level reform in future.

The new clause 2 also makes clear that the role of Schedule D is to align with and give effect to, allowable interstate and intervalley trade arrangements approved under state law. This removes the confusing and duplicative regulation of interstate trade, which is reflected currently in protocols under Schedule D.

This is consistent with the policy intention of recommendation 5 from the 2024 Schedule D Review: Synthesis Report[8], that Schedule D and protocols will apply to trade arrangements approved under state law and no longer regulate what trade is permissible.

Further flexibility is introduced in Schedule D through the following amendments:

• The introduction of a new clause 4 (Meaning of southern-connected Basin) by item 9 to retain flexibility for Ministerial Council to determine the geographic extent to which Schedule D applies.
• The repeal of Appendix 1 (Entitlements and allocations) by item 13, as it is made redundant by the amendments in item 7.
• The repeal of the existing clause 4 (Power to alter entitlements and allocations to which this Schedule applies) by item 9, as it is made redundant by the amendments in item 7 and the repeal of Appendix 1.

Clause 3 (Definitions)

Clause 3 replaces the repealed clause 3 (Definitions and interpretation). It provides definitions for terms used within the Schedule and in any protocols or procedures made under it. The clause introduces a revised and streamlined set of definitions, reflecting updated terminology used throughout Schedule D and omitting terms that are no longer required as a result of amendments made by this Schedule to the Regulations.

Note 1 to clause 3 provides that a number of expressions used in Schedule D are defined in section 4 of the Act. This includes Agreement, Commonwealth water legislation, ground water, National Water Initiative, State, State water management law, surface water, tradeable water rights, water access entitlement, and water allocation. The shift in language to tradeable water rights is discussed further above.

Note 2 to clause 3 provides that a number of expressions used in Schedule D are defined in clause 2 of the Agreement. This includes Authority, Committee, Contracting Government, Ministerial Council, State Contracting Government, State water entitlement, and Water Act.

The definition of approval authority in subclause 3(1) is a person or body whose approval is required under State water management law for a proposed interstate transfer or intervalley transfer to proceed. This definition replaces the repealed definitions for licensing authority and relevant water authority and better reflects the relevant authority intended to be captured. This term is relevant to subclauses 6(9) and 7A(7).

The definitions of Barmah Choke allocation account and Barmah Choke entitlement record in subclause 3(1) primarily relate to new clause 11. These terms are discussed further under item 10 of this Schedule which inserts new clause 11.

The definition of designated water supply source in subclause 3(1) is a water supply source for a valley account from which water is released by a State Contracting Government for the purposes of implementing a direction given by the Authority under subclause 9(3). The term primarily relates to clause 9 of Schedule D which is inserted by item 10 of this Schedule to the Regulations.

The definition of interstate transfer in subclause 3(1) is a transfer of tradeable water rights out of a State into another State. This is generally consistent with the repealed definition of interstate transfer, however has been clarified to better reflect that the transfer is occurring between States geographically as opposed to between two States as parties to a transfer.

The definition of intervalley transfer in subclause 3(1) is a transfer of tradeable water rights out of a valley into another valley or into the River Murray, or vice versa. This is consistent with the repealed definition of intervalley transfer.

The definition of procedures in subclause 3(1) means procedures made by the Committee under clause 7A. This is a new definition inserted into Schedule D as a result of new clause 7A (inserted by item 1 of this Schedule).

The definition of protocol in subclause 3(1) means a protocol made by the Authority under clause 6.

The definition of southern-connected Basin in subclause 3(1) provides that it has the meaning given in clause 4. This term is discussed further under item 9 of this Schedule which inserts the new clause 4.

The definition of State transfer account in subclause 3(1) means the account the Authority must maintain under subclause 11(1). This term is discussed further under item 10 of this Schedule which inserts new clause 11.

The definition of transfer provided in subclause 3(1) is non-exhaustive. It provides that a transfer includes a transfer that does not involve the payment of consideration, a transfer between places under which ownership of the right being transferred does not change, and a transfer that does not involve the physical movement of water from one location to another. This definition replaces the repealed definitions for transfer in relation to an allocation and transfer in relation to an entitlement.

The definition of valley in subclause 3(1) means a valley (within the ordinary meaning of that word), catchment or geographic area associated with a river (other than the River Murray) covered by the definition of southern-connected Basin in clause 4. This replaces the repealed definition for valley and provides a clearer meaning as to how it should be interpreted.

The definition of valley account in subclause 3(1) means an account maintained by a State Contracting Government under subclause 9(1) for a valley located in the State. This is generally consistent with the repealed definition of valley account which referred to the meaning set out in repealed subclause 11(3). However, the definition has been updated to reflect that the responsibility for maintaining valley accounts rests with the relevant State Contracting Government.

Definitions associated with Schedule E (repealed by item 14 of this Schedule to the Regulations) have been consequentially repealed. These repealed definitions are cap on diversions, and designated river valley.

Other definitions, including allocation, entitlement and environmental entitlement are no longer needed, due to the amendments relating to clause 2 and the shift to referring to tradeable water rights. Where relevant, Schedule D instead refers to water access entitlements and water allocations within the definitions given in section 4 of the Act, rather than separately defining the terms to have the same effective meaning. This is supported by Note 1 to the new clause 3 which provides both water access entitlement and water allocation as examples of expressions defined in section 4 of the Act.

Further definitions, including convert, conversion factor, and exchange rate, and the interpretations of exchange rate trade and tagged trade are also no longer needed. This is consistent with the amendments relating to clause 2 and the shift to no longer specifying the types or forms of transfer that Schedule D applies to.

Other definitions, former Schedule, State of destination, State of origin and transfer register, are no longer needed, due to the amendments relating to clause 13 (inserted by item 10 of this Schedule to the Regulations) which replaces repealed clause 16.

Subclause 3(2) provides that a reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of Schedule D. This is consistent with repealed paragraph 3(1)(b).

Subclause 3(3) provides that, for the purposes of this Schedule, the Ministerial Council may determine the geographic extent and limits of the Barmah Choke. This is consistent with repealed subclause 3(2).

Item 8 - Part II of Schedule D of Schedule 1 (heading)

This item repeals the heading of Part II of Schedule D. A new heading for Part II is reinserted by item 9 below.

Item 9 - Clauses 4 and 5 of Schedule D of Schedule 1

This item repeals clause 4 (Power to alter entitlements and allocations to which this Schedule applies) and substitutes a new clause 4 (Meaning of southern-connected Basin), which is not related to the repealed clause 4. Item 9 also:

• Repeals clause 5 (Suspension of Schedule) and substitutes an amended clause 5 (Suspension of Schedule), relating to the same matter; and
• Inserts a new heading for Part II of the Schedule (Protocols and Procedures).

The repealed clause 4 of Schedule D set out a power to alter entitlements and allocations to which Schedule D applies which were listed in repealed Appendix 1 (Entitlements and Allocations) of Schedule D. Repealed clause 4 is no longer required as the new clause 2 (Circumstances in which this Schedule does not apply) (inserted by item 7) does not rely on Appendix 1 to specify entitlements and allocations. Schedule D instead applies to interstate and intervalley transfers of tradeable water rights that are permitted to be transferred under State water management law. As a result, the repealed clause 4 and repealed Appendix 1 are made redundant.

Clause 4 (Meaning of southern-connected Basin)

Clause 4 is a new clause inserted into Schedule D which provides for the meaning of southern-connected Basin.

Subclause 4(1) defines the southern-connected Basin by reference to the relevant river systems that comprise the southern-connected Basin. Clause 4 reflects the existing scope of hydrologically connected water sources that Schedule D previously applied to, as reflected in the repealed clause 2 and repealed Appendix 1 of Schedule D. Clarifications have been made in translating the list of river systems to better reflect the location of these river systems to respective Basin States.

Subclause 4(1) provides that, for the purposes of this Schedule and subject to subclause (2), the southern-connected Basin means the specified sources of surface water.

Paragraphs 4(1)(a) and (b) provide that the southern-connected Basin in New South Wales and Victoria extends to ‘regulated reaches’ in specified river systems and ‘regulated reaches’ connected to those river systems. The term ’regulated reaches’ was previously used in repealed paragraph 2(b) of Schedule D and in the repealed definition of entitlement (in repealed subclause 3(1) of Schedule D). This term is not defined but can be understood to refer to river sections where the water level and flow rate are controlled or regulated by artificial means such as dams, weirs, or other storages.

Paragraph 4(1)(a) provides that the southern-connected Basin in New South Wales includes the regulated reaches of the Darling River (including, but limited to, Menindee Lakes and the Darling River downstream from the Menindee Lakes), the Murrumbidgee River and the River Murray. It also includes regulated reaches connected to those river systems.

Paragraph 4(1)(b) provides that the southern-connected Basin in Victoria includes the regulated reaches of the Goulburn River, the Broken River, the Campaspe River, the Loddon River and the River Murray. It also includes regulated reaches connected to those river systems.

Paragraph 4(1)(c) provides that the southern-connected Basin in South Australia includes the River Murray.

Paragraph 4(1)(d) provides that the southern-connected Basin in the Australian Capital Territory includes the Murrumbidgee River.

Paragraph 4(1)(e) allows the meaning of southern-connected Basin to be expanded to include any other sources of surface water determined by the Ministerial Council under paragraph (2)(a).

Subclause 4(2) provides that, for the purposes of Schedule D, the Ministerial Council may determine:

1.    Other sources of surface water within the southern-connected Basin; and
2.    The geographic extent and limits of the southern-connected Basin.

Paragraph 4(2)(a) reflects the role of the Ministerial Council under the repealed clause 2 of Schedule D, which formerly provided for the Ministerial Council to determine other sources of water than those specified in “the upper River Murray and the River Murray in South Australia; and regulated reaches of the Goulburn, Broken, Campaspe, Loddon and Murrumbidgee river systems” and for these to be specified in repealed Appendix 1 to Schedule D.

As the functions of the Ministerial Council under clause 9(b) of Schedule 1 to the Act include the function “to make determinations about the matters specified in this Agreement” subclause 4(2) ensures that the Ministerial Council retains the ability to determine other sources of water than those specified in the definition of southern-connected Basin.

Clause 5 (Suspension of Schedule)

Clause 5 replaces the repealed clause 5 of Schedule D, which deals with the suspension of the Schedule. Clause 5 largely replicates the repealed clause 5, with amendments to exclude its application to certain administrative aspects of Schedule D. In effect, clause 5 enables a State Contracting Government to suspend or limit the operation of the Schedule within that State, other than in relation to specified administrative matters. The limitation is intended to safeguard against decisions that could result in market inequity or undermine the consistent administration of Schedule D.

Schedule D assigns certain functions and duties to State Contracting Governments. Although Schedule D applies subject to the laws of each State, it is important that jurisdictions retain the ability to suspend those provisions where the State considers it necessary, after following the dispute resolution processes set out in clause 16 of Schedule D.

Subclause 5(1) retains the existing ability that, subject to subclause (4), a State Contracting Government may, from time to time, after consulting the Ministerial Council, suspend or limit the operation of the Schedule (other than the clauses and subclauses specified in subclause (2)) in that State, if the Contracting Government considers that one of the specified reasons in paragraphs (1)(a)-(c) have been met.

Where a State Contracting Government suspends the operation of part of the Schedule, any relevant protocols and procedures relating to that part would also be taken to be suspended.

With the exception of updating language to water access entitlements and water allocations, the specified reasons in paragraphs 1(a)-(c) have been retained from the repealed clause 5.

Subclause 5(2) is a new subclause which, for the purposes of subclause (1), sets out the clauses and subclauses of the Schedule that cannot be suspended. These clauses and subclauses all relate to aspects of Schedule D that are administrative in nature. This includes provisions relating to:

• The making of protocols and procedures (subclauses 6(1) to (8) and 7A(1) to (6));
• Adjusting the delivery of State water entitlements (clause 8);
• Providing information about valley accounts (subclause 9(2));
• Maintaining and adjusting State transfer accounts, a Barmah Choke allocation account and a Barmah Choke entitlement record (clause 11); and
• Information sharing and audits, monitoring and reporting, reviewing the Schedule, and dispute resolution (clauses 13 to 16).

Subclause 5(3) is retained without change from the existing Schedule D. It provides that the Ministerial Council may, from time to time, having regard to the National Water Initiative, by resolution, suspend or limit the operation of Schedule D in relation to a State or States.

Subclause 5(4), which subclause 5(1) is subject to, is also retained from the existing Schedule D. This provision, previously subclause 19(10) of Schedule D, has been relocated to clause 5 consistent with standard drafting practice. Subclause 5(4) maintains that each State Contracting Government must try to resolve any difference between it and any other State Contracting Government about a matter referred to in paragraph (1)(a), (b) or (c), in accordance with clause 16, before consulting the Ministerial Council under subclause (1).

Heading for Part II Protocols and Procedures

The new heading for Part II is “Part II – Protocols and Procedures”. The heading of the existing Part II is repealed by item 8 above. Reinserted as a new heading by item 9, it is now located after clause 5. As a result, the new clauses 4 and 5 form part of Part I – Preliminary rather than Part II – Protocols and Procedures. Part II of the Schedule will now only contain clauses 6 and 7A, as inserted by item 1, relating to the making of protocols and procedures respectively.

Item 10 - Parts III and IV of Schedule D of Schedule 1

This item repeals Parts III and IV of Schedule D and substitutes a new Part III – Matters relating to Administration of the Agreement and Part IV – Operational Principles and Administration.

Part III contains clause 8 (Adjustment of delivery of State water entitlements).

Clause 8 (Adjustment of delivery of State water entitlements)

Clause 8 replaces the repealed clause 7 (Adjustment of delivery of State entitlements) of Schedule D.

State water entitlement, as defined in clause 2 of the Agreement, means the entitlement of a State to water, determined in accordance with Part XII of the Agreement. The Purpose of the Agreement is, under its clause 1, to “promote and co-ordinate effective planning and management for the equitable, efficient and sustainable use of the water and other natural resources of the Murray-Darling Basin, including by implementing arrangements agreed between the Contracting Governments to give effect to the Basin Plan, the Act and State water entitlements”. Under the Agreement, the Authority manages River Murray operational assets on behalf of the asset controlling governments for the purposes of the Agreement, including giving effect to State water entitlements under Part XII of the Agreement.

Clause 8 maintains the existing requirement on the Authority to adjust the delivery of State water entitlements to take into account, and give effect to, interstate transfers. That is, the Authority must adjust the delivery of State water entitlements to give effect to transfers of tradeable water rights approved by States under State water management law.

The new clause provides that the Authority must, in undertaking this obligation, do so in accordance with the protocols and procedures (if any) made under Schedule D. This replaces the existing condition that this is to be done in accordance with Appendix 2 of the Schedule, which sets out granular rules as to how the Authority must adjust the delivery of a State water entitlement according to specific circumstances. The repealed Appendix 2 also relies, in part, for certain adjustments to be made in the manner set out in a protocol made under Schedule D. As a result, the rules for adjustments have become complex, repetitive and fragmented between repealed Appendix 2, the protocols and enduring provisions in Part XII of the Agreement that each apply.

Consistent with the recommendations of the 2024 Schedule D Review: Synthesis Report[9], the new clause provides that adjustments to the delivery of State water entitlements must be in accordance with the protocols and procedures (if any) made under Schedule D. The purpose of this change is to streamline and consolidate wholesale accounting and operational requirements that are currently under multiple instruments. This change will also provide increased flexibility for the Authority to adjust delivery of State water entitlements for trade to better match expected demand to all States in any month.

As a result of this change, item 11 repeals Appendix 2 (Adjusting Delivery of State Entitlements under Part XII of the Agreement) as it has been made redundant. Clause 8 has also been drafted to align with language used elsewhere in the Agreement (eg clause 8 refers to State water entitlements while repealed clause 7 referred to ‘State entitlements’).

Part IV – Operational Principles and Administration – forms the substantive part of Schedule D and contains 9 clauses. These are:

• Clause 9 (Release of water and valley accounts),
• Clause 10 (Authority to be informed of new proposals),
• Clause 11 (State transfer accounts, Barmah Choke allocation account and Barmah Choke entitlement record),
• Clause 12 (Advice about water allocation transfers across the Barmah Choke),
• Clause 12A (Restrictions on transfers of tradeable water rights across the Barmah Choke),
• Clause 13 (Transfers of tradeable water rights – information sharing and audits),
• Clause 14 (Monitoring and reporting),
• Clause 15 (Review of Schedule D), and
• Clause 16 (Dispute resolution).

Clauses 9, 13, 14, 15 and 16 replace repealed clauses of Schedule D. The relevant repealed clause is outlined below under the description of each replacement clause.

Clauses 10, 11, 12 and 12A are new clauses being inserted into Schedule D.

Further information is set out on each clause below, including whether it replaces a repealed clause or is a new clause being added.

Clause 9 (Release of water and valley accounts)

Clause 9 replaces the repealed clause 11 of Schedule D (Delivery of water and valley accounts).

A valley account, defined in clause 3 (see item 7), is an account maintained by a State Contracting Government under subclause 9(1) for a valley located in the State. Valley accounts and State transfer accounts (see clause 11) keep a record of water trade for accounting purposes. Valley accounts record the balance of adjustments to be made between valleys as a result of trade.

Clause 9 broadly replicates the repealed clause 11 with changes to clarify the decision-making roles and processes of the Authority and States for valley accounting and operational decision making. The primary difference is that responsibility for maintaining and adjusting valley accounts has been clarified to rest with the relevant State Contracting Government, and not the Authority. This is a correction to align with current practice, as opposed to a change in roles for State Contracting Governments and the Authority.

Subclause 9(1) provides that each State Contracting Government must maintain and adjust valley accounts, in accordance with the protocols and procedures (if any) made under Schedule D, that record the available balance for transfers of tradeable water rights in respect of each valley located in the State.

Subclause 9(2), consistent with this change, provides that each State Contracting Government must provide information to the Authority about valley account balances for each valley account that they manage. This reflects current practice and is necessary for the Authority to provide directions in relation to the delivery of water from valley accounts.

The remaining subclauses relating to the giving of directions by the Authority largely remain unchanged from previous settings. Minor changes were made to these subclauses to better reflect current practice by clarifying that the Authority uses information provided under subclause (2) to give a direction, that a direction is given to a State Contracting Government, and that a direction is implemented through releasing water from a designated water supply source.

A designated water supply source, defined in clause 3 (see item 7), means a water supply source for a valley account from which water is released by a State Contracting Government for the purposes of implementing a direction given by the Authority under subclause 9(3). Protocols and procedures may be made under clauses 6 and 7A (as inserted by item 1) relating to designated water supply sources and releasing water from valley accounts.

Subclause 9(3) provides that the Authority may, in accordance with the protocols and procedures, use the information provided under subclause (2) to give a State Contracting Government a direction to release water standing to the credit of a valley account for any valley for any of the purposes referred to in subclause 98(3) or (4) of the Agreement. The Authority may also amend or cancel the direction at any time.

Subclause 9(4) provides that a State Contracting Government must implement the direction by releasing water from a designated water supply source in accordance with the protocols and procedures (if any) made under Schedule D. This is consistent with an existing provision to this effect in Schedule D (repealed subclause 11(5)). However, this has been clarified to reflect that the direction is implemented by releasing water from a designated water supply source.

Subclause 9(5) retains that the direction may result in a valley account being overdrawn, with the consent of the State Contracting Government to whom the direction is given.

Clause 10 (Authority to be informed of new proposals)

Clause 10 is a new clause inserted into Schedule D, relating to the Authority being informed of new proposals. It is not related to repealed clause 10 (Accounting for salinity impacts), which is a redundant provision not retained in Schedule D.

Clause 10 requires States to inform the Authority of new proposals to alter the flow or use of water in a State tributary (a river that flows into the River Murray) that may significantly affect the flow or use of that water into the River Murray, or to alter the flow or use of water in the River Murray that may significantly affect the flow or use of water in the River Murray. The geographical context identifies which proposals are to be referred to the Authority.

Subclause 10(1) provides that a State Contracting Government (the proposing State) that is considering a proposal specified in subclause (2) to amend a State water management law, or a policy, arrangement, rule or requirement (however described) made under a State water management law, must, in writing inform the Authority and any other State or States it believes may be affected by the proposal.

Paragraph 10(1)(a) provides that the proposing State must inform the Authority of the proposal and give the Authority the necessary information and data on the flow or use (or both) of water within, or into, the River Murray with sufficient time for the Authority to provide advice under subclause (4).

Paragraph 10(1)(b) provides that, if the proposing State believes that any other State or States may be affected by the proposal, the proposing State must inform the other affected State Contracting Governments of the proposal as soon as practicable after giving the necessary information and data mentioned in paragraph 10(1)(a) to the Authority.

The rationale for these new requirements is to improve coordination and information sharing regarding the consideration of proposals that may impact the operation of valley accounts, and interstate and intervalley transfers in the southern-connected Basin. This is in line with the recommendations of the 2024 Schedule D Review: Synthesis Report[10] including to implement clearer accountability and coordination mechanisms for operational decision-making.

Subclause 10(2) outlines the proposals that are specified for the purposes of subclause (1).

Paragraph 10(2)(a) provides subclause (1) applies to proposals where the proposing State is New South Wales or Victoria and the proposal both:

1.                  Directly alters the flow or use of water in a river that is covered by the definition of southern-connected Basin, other than the River Murray; and
2.                The proposing State believes may significantly affect the flow or use of water from that river into the River Murray.

Paragraph 10(2)(b) provides subclause (1) applies to proposals where the proposing State is New South Wales or Victoria and the proposal both:

1.                  Directly alters the flow or use of water in the River Murray in the proposing State; and
2.                The proposing State believes may significantly affect the flow or use of water in the River Murray.

Paragraph 10(2)(c) provides subclause (1) applies to proposals where the proposing State is South Australia and the proposal both:

1.                  Directly alters the flow or use of water in the River Murray in South Australia; and
2.                The proposing State believes may significantly affect the flow or use of water in the River Murray upstream of South Australia.

State Contracting Governments are responsible for setting requirements, limits and rules on the volume of water (including its timing and rate of flow) in State tributaries under State water management law and relevant State policy. Consistent with the objectives set out in the document approved under clause 31 of the Agreement[11], the Authority is required to adhere to tributary operating limits or rules on flows made under State water management laws.

The types of proposals set out in subclause 10(2) have implications both for the Authority in undertaking its river operations functions and also in its forward planning for delivering State water entitlements under Part XII of the Agreement. The introduction of this requirement under clause 10 will support the effective operation of clause 9 (Release of water and valley accounts) as well as clause 8 (Adjustment of delivery of State water entitlements).

Subclause 10(3) provides that, in the event that the proposing State decides not to proceed with the proposal at any time before the Authority provides advice under subclause (4), the proposing State must notify the Authority. It must also notify any other State Contracting Governments it informed of the proposal under paragraph (1)(b).

Subclause 10(4) provides that the Authority may provide advice, in writing, to the proposing State on the anticipated effect of the proposal on the flow, use and control of water in the River Murray. If the Authority believes the proposal will affect other States, the Authority may also provide advice on the other States that would be affected by the proposal. The Authority must have regard to the information and data given by the proposing State in providing this advice.

Subclause 10(5) applies where the Authority provides advice under subclause (4), that advice identifies other States under paragraph (4)(b), and the proposing State has not given notification of a decision not to proceed with the proposal under subclause (3). Where these three conditions are met, the proposing State must provide a copy of the proposal and the Authority’s advice on the proposal to the other State Contracting Governments identified in the Authority’s advice.

Subclause 10(6) provides that the Authority may, at any time after providing advice to the proposing State under subclause (4), provide a copy of that advice to another State Contracting Government if the Authority considers it reasonable and relevant to do so.

Subclause 10(7) requires the Authority to notify the proposing State in writing if the Authority provides a copy of the advice to another State Contracting Government under subclause (6).

Clause 11 (State transfer accounts, Barmah Choke allocation account and Barmah Choke entitlement record)

Clause 11 is a new clause inserted into Schedule D, relating to accounts and records that must be maintained and adjusted by the Authority.

State transfer account, Barmah Choke entitlement record and Barmah Choke allocation account are defined in clause 3 of Schedule D (see item 7). Each of the terms are defined to mean an account or record that the Authority must maintain under a relevant subclause of clause 11.

Subclause 11(1) provides that the Authority must maintain and adjust a State transfer account that records:

1.    Each interstate transfer of tradeable water rights in the southern-connected Basin; and
2.    Adjustments to the delivery of State water entitlements.

State transfer accounts and valley accounts (see clause 9) keep a record of water trade for accounting purposes under Schedule D. The undelivered trade balance arising from interstate trade is recorded in the State transfer account.

The State transfer account is an existing record previously maintained by the Authority under the Murray-Darling Basin Agreement (Schedule D – Adjusting Valley Accounts and State Transfer Accounts) Protocol 2010 made under Schedule D. The Authority maintains the State transfer account to record adjustments made to the delivery of State water entitlements as a result of interstate transfers.

The policy intention of lifting this obligation up into the Schedule is to support clarity in the respective roles and responsibilities of State Contracting Governments and the Authority in managing accounts for intervalley and interstate transfers. As outlined under clause 10 above, State Contracting Governments are responsible for maintaining valley accounts while the Authority maintains the State transfer account.

The note to subclause 11(1) states that the Authority uses information provided by the State Contracting Governments under subclause 13(1) to maintain the State transfer account. This note has been included to provide clarity in the purposes of information sharing under the amended clause 13 (Transfers of tradeable water rights – information sharing and audits).

Similar to the State transfer account, the Barmah Choke entitlement record and allocation account are existing records previously maintained by the Authority under the Murray-Darling Basin Agreement (Schedule D – Permissible Transfers between Trading Zones) Protocol 2010 made under Schedule D.

The Barmah Choke, otherwise known as the Barmah-Millewa Reach or Barmah Narrows, is a naturally occurring narrow section of the River Murray where it flows through the Barmah-Millewa Forest, between the towns of Tocumwal (NSW) and Barmah (Victoria). It forms a significant geographic constraint on water flow, limiting the volume of water that can be delivered downstream from upstream storages without increasing the risk of flooding in the Barmah-Millewa Forest. Due to these capacity constraints, specific arrangements are required to manage water trade from above the Barmah Choke to below the Barmah Choke. These arrangements are intended to ensure that water delivery and trade can occur while appropriately managing the physical limitations of the system and the risk of flooding within the Barmah-Millewa Forest.

Subclause 11(2) provides that the Authority must maintain and adjust a Barmah Choke entitlement record of the water access entitlements transferred from below the Barmah Choke in a State to above the Barmah Choke in that State or another State.

The Barmah Choke allocation account is the account that the Authority must maintain under subclause 11(3). Subclause 11(3) provides that the Authority must maintain and adjust a Barmah Choke allocation account that sets out water allocation transfers across the Barmah Choke in a financial year by recording the net volume of water allocation transfers from below the Barmah Choke in a State to above the Barmah Choke in that State or another State in the financial year.

The inclusion of these subclauses clarifies the Authority’s role in maintaining the Barmah Choke entitlement record and allocation account, and supports the inclusion of further detail in protocols and procedures. The rationale for relocating these provisions to the Schedule is to enable clearer accountability, roles and functions of instruments relating to the management of Barmah Choke trade opportunities.

The note to subclause 11(3) states that the Authority uses information provided by the State Contracting Governments under subclause 13(1) to maintain the Barmah Choke allocation account. Similar to the note to subclause 11(1), this note has been included to provide clarity in the purposes of information sharing under amended clause 13 (Transfers of tradeable water rights – information sharing and audits).

Subclause 11(4) provides that the Authority is required to maintain and adjust an account or record under this clause in accordance with the protocols and procedures (if any) made under Schedule D.

Clause 12 (Advice about water allocation transfers across the Barmah Choke)

Clause 12 is a new clause inserted into Schedule D, relating to advice about water allocation transfers across the Barmah Choke.

Subclause 12(1) provides that the Authority may provide advice to one or more State Contracting Governments about specified matters in relation to water allocation transfers across the Barmah Choke. This advice must be provided in accordance with the protocols and procedures made under Schedule D, if any have been made.

Paragraph 12(1)(a) provides that advice may address the maximum volume of water allocations that may be transferred from above the Barmah Choke in a State to below the Barmah Choke in that State or another State.

Paragraph 12(1)(b) provides that advice may address the period during which such transfers may occur.

Paragraph 12(1)(c) provides that advice may address the conditions (if any) that apply to such transfers.

As outlined under clause 11 above, the unique capacity constraints of the Barmah Choke necessitate specific arrangements to ensure that water delivery and trade can occur while appropriately managing the physical limitations of the system and the risk of flooding within the Barmah-Millewa Forest. Clause 12 has been included to reflect an ongoing role undertaken by the Authority in providing advice to State Contracting Governments in relation to water allocation transfers across the Barmah Choke.

Subclause 12(2) provides that, before providing that advice, the Authority must have regard to the information provided by the State Contracting Governments under subclause 13(1) and consult with the Committee.

Clause 12A (Restrictions on transfers of tradeable water rights across the Barmah Choke)

Clause 12A is a new clause inserted into Schedule D, relating to restrictions on transfers of tradeable water rights across the Barmah Choke.

Clause 12A provides that the protocols (if any) made under this Schedule may impose restrictions on, or regulate, interstate transfers and intervalley transfers across the Barmah Choke. This is intended to refer to any transfer from above the Barmah Choke in a State to below the Barmah Choke in that State or another State, and vice versa. Any protocols made under Schedule D are subject to the laws of each State and the Basin Plan.

Consistent with this, note 1 to clause 12A clarifies that the clause applies in relation to interstate transfers and intervalley transfers from above the Barmah Choke to below the Barmah Choke, and vice versa. This is for the avoidance of doubt in the interpretation of “across the Barmah Choke”.

As outlined under clause 11 above, the unique capacity constraints of the Barmah Choke necessitate specific arrangements to ensure that water delivery and trade can occur while appropriately managing the physical limitations of the system and the risk of flooding within the Barmah-Millewa Forest. For this reason, and as the Barmah Choke is situated along the River Murray and therefore transfers are managed by both New South Wales and Victoria, it is necessary to retain the ability for protocols to engage with restrictions specifically in relation to transfers across the Barmah Choke. The inclusion of this clause, and clause 12, is consistent with the recommendations of the 2024 Schedule D Review: Synthesis Report[12].

Note 2 to clause 12A clarifies that subclause 6(2) does not apply to a protocol restricting or regulating interstate transfers and intervalley transfers across the Barmah Choke made in accordance with this clause. Subclause 6(2) provides that a protocol must not purport to affect or interfere with the responsibilities of a State to manage a water resource, except as provided for in the Agreement. This does not apply to a protocol restricting or regulating transfers in accordance with this clause as the purpose of clause 12A is to directly enable the protocols to engage with such a restriction in relation to managing water transfers across the Barmah Choke.

Clause 13 (Transfers of tradeable water rights – information sharing and audits)

Clause 13 replaces the repealed clause 16 (Transfer Register) of Schedule D.

Clause 13 provides for information sharing and audits under Schedule D and directly implements recommendation 10 of the 2024 Schedule D Review: Synthesis Report[13] to provide enabling provisions for the Authority to maintain registers and records to support processing and accounting for interstate trade in line with procedures. Accordingly, clause 13 seeks to more broadly reflect information sharing about interstate transfers and intervalley transfers, and the subsequent record-keeping by the Authority, in place of the prescriptive transfer register requirements under repealed clause 16.

This clause is also supported by the notes under clause 11, which provide clarity about the purpose and use of information shared under clause 13.

Subclause 13(1) provides that each State Contracting Government must provide information to the Authority about transfers within, to or from the State, relating to interstate transfers and intervalley transfers of tradeable water rights in the southern-connected Basin. This information must be provided in accordance with the protocols and procedures (if any) made under Schedule D.

Subclause 13(2) provides that the Authority must keep records of the information provided by the State Contracting Governments under subclause (1).

Subclauses 13(3) to (7) broadly replicate the existing audit functions under repealed clause 16.

Subclause 13(3) provides there are two circumstances where the Authority must arrange for an independent auditor to undertake an audit. Paragraph 13(3)(a) provides that the Authority must arrange for an audit if the Authority is not satisfied that any volumetric errors in the monthly reconciliation process between the States and the Authority can be rectified. This is consistent with repealed paragraph 16(5)(a).

Paragraph 13(3)(b) provides that the Authority must also arrange for an audit if the Committee determines that the Authority is to arrange for the audit to be undertaken. This is consistent with repealed paragraph 16(5)(b).

Subclause 13(4) provides that, if the Authority is required to arrange for an independent auditor under paragraph (3)(a), the auditor must examine whether there is any discrepancy between the volumetric information provided by the State Contracting Governments under subclause (1) and the volumetric information contained in the records kept by the Authority under subclause (2). This is generally consistent with repealed subclause 16(5A). Minor amendments have been made which are consequential to other amendments in this part of the Regulations. For example, the reference to clause 8 of Appendix 3 to Schedule D is no longer required, as this Appendix has been repealed.

Subclause 13(5) provides that, if the Authority is required to arrange for an independent auditor under paragraph (3)(b), the Committee must determine the matters that the auditor must examine and the auditor must examine those matters. This is a new subclause that has been added to better cater for a situation where the Committee has determined that an audit is to be undertaken but the audit is not specifically in relation to a discrepancy between volumetric errors.

Subclause 13(6) provides that if an auditor undertakes an audit under subclause (3), the Authority must arrange for the auditor to make recommendations to the Ministerial Council, as soon as practicable after the audit is completed. The recommendations may be about any matter relevant to the audit that the auditor considers appropriate. This is generally consistent with repealed subclause 16(5B).

Subclause 13(7) provides that, after considering any recommendation made by the auditor under subclause (6), the Ministerial Council may require the Authority to amend or adjust the Authority’s records kept under subclause (2) of this clause, the State transfer account maintained under subclause 11(1), or the Barmah Choke allocation account maintained under subclause 11(3), as the Ministerial Council considers appropriate. This replaces repealed subclause 16(6) and instead refers to the relevant records and accounts maintained by the Authority under the new Schedule D settings as opposed to the previous Transfer Register.

Clause 14 (Monitoring and reporting)

Clause 14 replaces the repealed clause 17 (Monitoring and Reporting) of Schedule D. Clause 14 broadly replicates the repealed clause 17 with minor changes to reflect other changes made to the Schedule including changes to the terminology used in relation to tradeable water rights and transfers, the repeal of the Cap on diversions, and the introduction of procedures.

Clause 14 requires that for each financial year, the Authority must, in accordance with the protocols and procedures (if any) made under the Schedule, prepare and give to the State Contracting Governments a report setting out the following information for the relevant financial year by no later than 31 December in the following financial year:

1.    The total volume of interstate transfers of tradeable water rights into and out of each State;
2.    Any adjustment to the delivery of a State water entitlement made under clause 8.

The matters specified in paragraphs (a) and (b) are pre-existing requirements for reports under the repealed clause 17. Other pre-existing requirements for the report to address exchange rates applied to interstate transfers and any adjustment to the cap on diversions for a designated river valley under repealed clause 17 have been made redundant by other amendments and therefore have not been retained.

Clause 15 (Review of Schedule D)

Clause 15 replaces the repealed clause 18 (Review of interstate transfers) of Schedule D, regarding reviews of the operation of Schedule D (repealed paragraph 18(2)(a)).

Clause 15 retains certain key elements of the repealed clause 18 with amendments to update the review frequency and requirements, to remove unnecessary duplication in the content of a review, and to clarify that the review report must be provided to the Committee, prior to the Committee submitting the report to Ministerial Council.

Subclause 15(1) provides that the Authority must commence a review of the matters covered by subclause (3) or (4) at the following times:

1.    Before the end of the period of 10 years starting on 1 July 2026, and of each subsequent 10-year period;
2.    At any other time the Committee determines.

Paragraph 15(1)(a) introduces a new requirement that reviews must occur on a 10-year cycle. This replaces the prior requirement in repealed paragraph 18(1)(a), which has become outdated, that a review must occur as soon as practicable after the end of 2 years after the water trading rules (within the meaning of the Act) first come into effect. As the water the water trading rules commenced on 1 July 2014, repealed paragraph 18(1)(a) provided that a review must occur as soon as practicable after 1 July 2016.

Paragraph 15(1)(b), which provides that the Committee can determine that a review must occur, maintains the requirements of repealed paragraph 18(1)(b).

Subclause 15(1) will ensure a comprehensive review is conducted at regular intervals while maintaining the general discretion for the Committee to initiate a review of Schedule D at any other time, consistent with the recommendations of the 2024 Schedule D Review: Synthesis Report[14].

Subclause 15(2) provides that the Authority must complete a review within 12 months of the day the review commences, unless the Ministerial Council agrees a longer period for completing the review. This is a new requirement which has been incorporated to ensure reviews are conducted efficiently and support the continued effective operation of the 10-year review cycle.

Subclause 15(3) provides that, for the purposes of a review commenced under paragraph (1)(a), the review must cover the operation of Schedule D, including any matters that the Committee directs. That is, a review conducted at the end of each 10-year period must cover the operation of the Schedule as a whole. This is an existing requirement that has been retained from the repealed clause 18.

Subclause 15(4) provides that, for the purposes of a review commenced under paragraph (1)(b), the review must cover any matters relating to the operation of the Schedule that the Committee directs, and any other matters relating to the operation of this Schedule that the Authority considers appropriate. This provides flexibility for reviews determined by the Committee to only cover necessary matters, such as where a particular clause or Part of the Schedule requires review.

The requirement under repealed clause 18(2)(b) for a review to address the markets for interstate transfers of entitlements and allocations has not been maintained. This aspect of the repealed mandated review scope partially duplicated the role of other water market reviews and reports (for example, the review of the operation of the Act required under section 253 of the Act or the Review of the Basin Plan under section 50 of the Act).

The clause title of repealed clause 18 (Review of interstate transfers) and the requirement to review water markets was imposed at the time when water markets were developing, and when Schedule D was the key instrument in facilitating interstate water trade. Today water markets are well established and other instruments such as the Basin Plan water trading rules affect the regulation of water markets. As such, consistent with the recommendations of the 2024 Schedule D Review: Synthesis Report[15], this has been removed from the scope requirements.

Subclause 15(5) provides that the Authority must prepare a report of the review and provide it to the Committee.

Subclause 15(6) provides that, after considering the review report, the Committee must:

1.    Decide whether it is appropriate to consult on the proposed outcomes of the review with the Basin Community Committee or any other relevant stakeholders; and
2.    Submit the report, and the Committee’s advice in relation to it, to the Ministerial Council.

This replaces the requirement under the repealed subclause 18(1) for the Authority to prepare and give the review report to the Ministerial Council and the Basin Community Committee. This change is consistent with recommendations of the 2024 Schedule D Review: Synthesis Report[16], for review reports to be provided to the Committee and Ministerial Council, and to implement flexibility for consultation requirements to be tailored as appropriate in light of the scope and nature of the review.

Clause 16 (Dispute resolution)

Clause 16 replaces the repealed clause 19 (Dispute resolution) of Schedule D and closely replicates the repealed clause 19 with only three minor differences. These are:

• The incorporation of subheadings throughout the clause to support readability of its provisions – this is a formatting matter only;
• Clarifications to subclause 16(1) regarding who are the parties to a dispute; and
• The omission of repealed subclause 19(10) which required the disputing State Contracting Government to consult the Ministerial Council under subclause 5(1) about suspending the Schedule. This has not been included in clause 16 as it is more appropriately located with provisions on the suspension of the Schedule. Repealed subclause 19(10) has been incorporated by item 9 into subclause 5(4).

Subclause 16(1) provides that clause 16 applies to any dispute arising under Schedule D between the following parties:

1.    Two or more State Contracting Governments;
2.    One or more State Contracting Governments and the Authority.

That is, a dispute may arise between two or more State Contracting Governments, or it may arise between one or more State Contracting Governments and the Authority. This largely reflects the repealed subclause 19(1), which it substitutes, with minor modifications to ensure clarity.

The remaining subclauses 16(2) to 16(9) replicate the repealed subclauses 19(2) to 19(9), without amendment.

Subclause 16(2) retains that a dispute arises at the time when one party notifies the other party or parties in writing that there is a dispute about a matter specified in the notice.

Subclause 16(3) retains that, if a dispute arises, the parties must seek, in good faith, to resolve the dispute expeditiously by negotiations between them.

Subclause 16(4) retains that, if a dispute is not resolved within 60 days, it may be referred to a dispute panel and how this is to occur.

Subclause 16(5) retains that a dispute panel must meet within 7 days after it is appointed, or within such other period agreed by the parties.

Subclause 16(6) retains that a unanimous decision of the dispute panel is binding upon the parties.

Subclause 16(7) retains that, if the dispute panel does not reach a unanimous decision, how the dispute must or may be referred to the Ministerial Council or an arbitrator. For any dispute to which the Authority is a party, it must be referred to the Ministerial Council for resolution. For any dispute between State Contracting Governments, it may be referred by a party to an arbitrator as if it were a matter requiring resolution by an arbitrator under clause 140 of the Agreement.

Subclause 16(8) retains that each party must meet its own costs in relation to any dispute.

Subclause 16(9) retains that each party must contribute equally to the cost of any dispute panel or arbitrator, unless the dispute panel or arbitrator, as the case requires, directs otherwise.

Item 11 - At the end of clause 21 of Schedule D of Schedule 1

This item inserts an additional subclause to the end of clause 21, which sets out saving provisions. Clause 21 is inserted by item 2 in Part 1 of this Schedule to the Regulations, which commences the day after this instrument is registered.

Subclause 21(2) provides that clause 17 of Schedule D, as in force immediately before the commencement of this subclause, continues to apply on and after that commencement in relation to the financial year beginning on 1 July 2025.

That is, in preparing a report by the end of 31 December 2026 relating to the transfers that occurred in the 2025-26 financial year, the Authority will need to fulfil the requirements imposed under repealed clauses of the repealed Schedule D. This ensures that the Authority does not have to change its approach to reporting on the previous financial year and avoids inconsistent administration for transfers that occurred in the 2025-26 financial year period.

Item 12 - At the end of Division 1 of Part V of Schedule D of Schedule 1

This item inserts the new clause 22 (Things done under this Schedule) into Part V of Schedule D.

Clause 22 provides that, subject to clause 21, if:

• A thing was done for a particular purpose under this Schedule as in force immediately before the commencement of this clause (on 1 July 2026), and
• The thing could be done for that purpose under this Schedule as amended by the Regulations,

then the thing has effect for the purposes of Schedule D as if it had been done for that purpose under Schedule D, as amended.

In other words, if an enduring obligation has already been fulfilled, then it will be considered to be fulfilled under the amended Schedule D settings.

The purpose of this is to minimise administrative burden and uncertainty for State Contracting Governments in the transition to the amended Schedule D settings. Subclause 22(2) provides that, without limiting subclause (1), a reference in that subclause to a thing being done includes a reference to information being given. For example, where a State has notified the Authority of transfers that occurred on 30 June 2026, then it does not need to notify the Authority of those specific transfers again on 1 July 2026.

Item 13 - Appendices 1, 2 and 3 of Schedule D of Schedule 1

This item repeals Appendices 1, 2 and 3 of Schedule D of the Agreement. These appendices are made obsolete through the above amendments to Schedule D.

Appendix 1 (Entitlements and allocations) of Schedule D is made obsolete through the substitution of a new clause 2 in the Schedule. There is no longer a requirement for the application of Schedule D to be specified through listing particular entitlements and allocations. Schedule D instead applies to transfers of tradeable water rights that are permitted to be transferred as intervalley and interstate transfers under State water management law. See item 7 for further information.

Appendix 2 (Adjusting delivery of State entitlements under Part XII of the Agreement) is made redundant as a result of the new clause 8 (Adjustment of delivery of State water entitlements). The new clause 8 provides that adjusting the delivery of State water entitlements is to occur in accordance with protocols and procedures, whereas the repealed clause 7 attributed this to Appendix 2. See item 10 for further information.

Appendix 3 (Adjusting Cap on Diversions) is made redundant with the repeal of the cap on diversions in Schedule E. See item 14 for further information.

Item 14 - Schedule E of Schedule 1 (including Appendices 1 and 2 to Schedule E)

This item repeals Schedule E of the Agreement, including repealing Appendices 1 and 2 to Schedule E.

Schedule E previously established the long-term caps on the volume of surface water used for consumptive purposes in the river valleys within the Murray-Darling Basin, and set out how these caps would be quantified, complied with and reported on. Caps on diversions have now been superseded by the introduction of SDLs under the Basin Plan in 2019. As such, the accounting and reporting arrangements under Schedule E have been replaced by SDL accounting, reporting and compliance requirements under the Basin Plan.

The repeal of Schedule E removes duplicative accounting processes and unnecessary reporting and compliance burden on Basin States and the Authority.

Further information on the context of the Schedule E repeal is provided in the background section of this Explanatory Statement.

Item 15 - Subclause 2(6) of Schedule F of Schedule 1

This item repeals subclause 2(6) of Schedule F of the Agreement, which provided a definition for Long Term Diversion Cap. The repeal of this definition is consequential to the repeal of Schedule E by item 14, and the consequential amendments made by items 16 and 17 (set out below).

Item 16 - Paragraph 15(2)(a) of Schedule F of Schedule 1

This item amends paragraph 15(2)(a) of Schedule F of the Agreement to omit “under subclause 18(2) of this Schedule.” This is consequential to the repeal of Schedule E by item 14, and the consequential amendment made by item 17, which repeals subclause 18(2) (see item 17 below).

Item 17 - Clause 18 of Schedule F of Schedule 1

This item repeals clause 18 (Long Term Diversion Caps) of Schedule F of the Agreement. This is consequential to the repeal of Schedule E by item 14, which makes this clause redundant.

Item 18 - Clause 2 of Schedule G of Schedule 1 (definition of “allocation”)

This item repeals the definition of allocation in clause 2 of Schedule G of the Agreement, which previously referred to the definition in Schedule D, and substitutes a new definition. The new definition provides that allocation means the volume of water allocated for use under an entitlement in any financial year pursuant to the law of a State. This definition is broadly the same as the definition of allocation in Schedule D which is repealed by item 7 above.

A minor change was made to use the term ‘financial year’ for clarity, instead of ‘water year’, which was used in the repealed definition of allocation in Schedule D, as this relied on a cross reference to a repealed term in Schedule E.

Item 19 - Clause 2 of Schedule G of Schedule 1 (definition of “entitlement”)

Item 19 repeals the definition of entitlement in clause 2 of Schedule G of the Agreement and substitutes a new definition. The new definition provides that entitlement means:

1.    An entitlement to a particular share of water within the upper River Murray, the River Murray in South Australia or regulated reaches of the Goulburn, Broken, Campaspe, Loddon and Murrumbidgee river systems, pursuant to the law of a State; or
2.    Any other entitlement to divert water or to receive water diverted by another person or body from the river system mentioned in paragraph (a);

but does not include a State water entitlement.

This is a consequential amendment as a result of the repeal of the definition of entitlement in Schedule D.

Schedule G currently defines entitlement to have the meaning given in Schedule D. This item substitutes the definition of entitlement in Schedule G to have the same meaning as the previous definition in Schedule D (which is repealed from Schedule D by item 7 above).

Minor changes were made to the definition to remove the redundant reference to sources identified under subclause 2(c) of Schedule D, clarify that water is diverted by another person or body, and to refer to State water entitlement consistent with the language of the Agreement.

SCHEDULE 3 – ADDITIONAL AMENDMENTS TO TABLE OF CONTENTS

Items 1 to 17 provide for amendments to the Agreement’s Table of Contents to incorporate references to earlier amendments to the Agreement made by the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018 and the Water Amendment Regulations 2011 (No. 1). The Table of Contents was not updated at the time of these amendments, and Schedule 3 rectifies this to ensure a full and complete Table of Contents is available for the Agreement.

Item 1 - Schedule 1 (table of contents)

This item omits the entry for clause 5 of Schedule B (Determining Baseline Conditions) and substitutes “5. Estimates of salinity and salt load under Baseline Conditions”. This amendment was made by item 31 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 2 - Schedule 1 (table of contents)

This item omits the entry for clause 6 of Schedule B (Meeting End-of-Valley Targets). This amendment was made by item 40 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 3 - Schedule 1 (table of contents)

This item omits the entry for clause 8 of Schedule B (End-of-Valley Targets for the Australian Capital Territory). This amendment was made by item 43 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 4 - Schedule 1 (table of contents)

The item omits the entry for clause 9 of Schedule B (Reviewing and amending End-of-Valley Targets) and substitutes “9. Amending End-of-Valley Targets”. This amendment was made by Item 44 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 5 - Schedule 1 (table of contents)

This item omits the entry for Part IV of Schedule B (PART IV—JOINT WORKS AND MEASURES), and substitutes “PART IV—AUTHORISED WORKS OR MEASURES”. This amendment was made by item 51 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 6 - Schedule 1 (table of contents)

This item omits the entry for clause 12 of Schedule B (Authorised Joint works and measures), and substitutes “12. Authorised works or measures”. This amendment was made by item 57 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 7 - Schedule 1 (table of contents)

This item omits the entry for clause 14 of Schedule B (Co-ordinating Joint Works and Measures), and substitutes “14. Co-ordinating authorised works or measures”. This amendment was made by item 66 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 8 - Schedule 1 (table of contents)

This item omit all the entries from and including the entry for clause 15 of Schedule B (Establishing the Registers) to and including the entry for clause 24 of Schedule B (Review and amendment of Register entries), and substitutes new entries from and including clauses 15 (Registers A and B) to clause 24 (Re-estimating salinity impacts and amendment of Register entries). These amendments were made by items 69, 77, 83, 84, 91, 97, 106, 112 and 117 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 9 - Schedule 1 (table of contents)

This item omits all the entries from and including the entry for clause 26 of Schedule B (End-of-Valley Targets) to and including the entry for clause 28 of Schedule B (Monitoring Accountable Actions), and substitutes new entries for clauses 26 (Monitoring at End-of-Valley Target sites), 27 (Monitoring programs in relation to Accountable Actions and Delayed salinity impacts) and 28 (Monitoring Accountable Actions and monitoring for Delayed salinity impacts). These amendments were made by items 125, 126 and 131 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 10 - Schedule 1 (table of contents)

This item omits all the entries from and including the entry for clause 29 of Schedule B (State Contracting Governments) to and including the entry for clause 35 of Schedule B (Review of Schedule) and substitutes new entries from and including clauses 29 (Reports by State Contracting Governments) to clause 35A (Review of the Basin Salinity Management 2030). These amendments were made by items 133, 134 and 149 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 11 - Schedule 1 (table of contents)

This item omits the entry for clause 39 of Schedule B (Review of Models). This amendment was made by item 160 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 12 - Schedule 1 (table of contents)

This item omits all the entries from and including the entry for Part IX of Schedule B (PART IX—PROTOCOLS) to and including the entry for clause 41 of Schedule B (Examples of possible protocols), and substitutes new entries from and including the entry for PART IX—PROTOCOLS AND BSM PROCEDURES to clause 41 (Matters that may be dealt with in BSM procedures). These amendments were made by items 161, 163 and 164 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 13 - Schedule 1 (table of contents)

This item omits the entry for clause 46 of Schedule B (Action by a State Contracting Government), and substitutes “46. Action by a Contracting Government”. This amendment was made by item 178 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 14 - Schedule 1 (table of contents)

This item omits the entry for clause 48 of Schedule B (Joint works or measures), and substitutes “48. Joint works or measures and S&DS works or measures”. This amendment was made by item 182 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 15 - Schedule 1 (table of contents)

This item omits the entry for clause 49 of Schedule B (Former salinity and drainage works), and substitutes new entries from and including clauses 50 (Application of Division) to clause 58 (Provisional entries). These amendments were made by item 184 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 16 - Schedule 1 (table of contents)

This item omits the entry for Appendix 2 to Schedule B (SCHEDULE B—APPENDIX 2— Authorised Joint Works and Measures), and substitutes the new entry, “SCHEDULE B—APPENDIX 2—Authorised Works or Measures”. This amendment was made by item 186 of Schedule 1 to the Water Amendment (Murray-Darling Basin Agreement—Basin Salinity Management) Regulations 2018.

Item 17 - Schedule 1 (at the end of the table of contents)

This item adds new entries at the end of the table of contents referring to the insertions of Schedule G and Schedule H into the Agreement and includes the names and numbers of all clauses within each of those Schedules. Schedule G provides for accounting for South Australia’s storage rights and Schedule H provides for water sharing during tiers two and three.

This item adds new entries from and including the entry for “SCHEDULE G—ACCOUNTING FOR SOUTH AUSTRALIA’S STORAGE RIGHTS PART 1—PRELIMINARY” to the entry for clause “17. Review of Schedule”. This amendment was made by item 210 of Schedule 1 to the Water Amendment Regulations 2011 (No. 1). The Water Amendment Regulations 2011 (No. 1) amended Schedule 1A (Amendments incorporated into the Murray-Darling Basin Agreement) to the Water Regulations 2008, which in turn incorporated Schedule G and Schedule H into the Agreement.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Water Amendment (Murray-Darling Basin Agreement) Regulations 2026

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Water Act 2007 (the Act) provides the national legislative framework for the sustainable management of water resources within or beneath the Murray-Darling Basin (the Basin). The Murray-Darling Basin Agreement (the Agreement) and its Schedules are contained in Schedule 1 to the Act.

The Agreement, including its Schedules, is an intergovernmental agreement between the Commonwealth, the states of New South Wales, Victoria, South Australia, and Queensland and the Australian Capital Territory (together referred to in the Agreement as the Contracting Governments). The purpose of the Agreement is to promote and coordinate effective planning and management for the equitable, efficient and sustainable use of the water and other natural resources of the Basin, including by implementing arrangements agreed between Contracting Governments.

The Water Amendment (Murray-Darling Basin Agreement) Regulations 2026 (the Regulations) amend the Agreement at Schedule 1 to the Act to incorporate amendments that have been agreed by the Murray-Darling Basin Ministerial Council (Ministerial Council).

The purpose of the amendments is to:

• Clarify the scope and apportionment of costs of project works, such as improvements and replacement of infrastructure (such as dams) listed in the Agreement and parts of infrastructure, to effectively manage infrastructure risk in the Basin;
• Set a long-term strategic focus for asset management and planning;
• Enable a multi-year budget management framework to improve administrative efficiency and flexibility to manage water resources and infrastructure;
• Enable secretariat (administrative) functions for out-of-session resolutions of the Ministerial Council to be carried out by the Department;
• Improve the administration, management and transparency of interstate and intervalley water transfers in the southern-connected Basin under Schedule D; 
• Repeal duplicative accounting and reporting requirements relating to the Cap on Diversions that applied to Basin States and the Authority; and
• Update the Table of Contents for the Agreement to ensure its accuracy.

Together, these amendments are intended to strengthen the continued effectiveness and administrative efficiency of the Agreement in promoting and coordinating planning and management across the Murray-Darling Basin. In doing so, they support the equitable, efficient and sustainable use of water and other natural resources, consistent with the purpose of the Agreement set out in its clause 1.

Human rights implications

These Regulations may engage the following rights:

• the right to an adequate standard of living in Article 11 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR); and
• the right to health in Article 12 of the ICESCR.

The right to an adequate standard of living and the right to health

The right to an adequate standard of living has been interpreted as including a human right to water which encompasses an entitlement to ‘sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’ and ‘protection of water resources from depletion, contamination and proposed developments’.[17]

The right to health has been interpreted as including a right to a healthy environment, including access to safe drinking water and environmental conditions.[18]

The amendments to the Agreement set out in the Regulations broadly support the above rights by including measures to improve the efficient management of water resources and river-related infrastructure in the Murray-Darling Basin. Broadly, these measures help ensure the availability of water for human consumption, agriculture and the environment, thereby promoting the right to an adequate standard of living and the right to health in Articles 11 and 12 of the ICESCR.

Conclusion

The Regulations are compatible with human rights because they promote the protection of human rights.

Senator the Hon. Murray Watt

Minister for the Environment and Water

[1] https://www.ipart.nsw.gov.au/sites/default/files/cm9_documents/Online-Submission-Murray-Darling-Basin-Authority-J.-Hickey-20-Nov-2025-110042581.PDF

[2] Basin Officials Committee Communique – June 2024 | Murray–Darling Basin Authority (https://www.mdba.gov.au/news-and-events/newsroom/basin-officials-committee-communique-june-2024)

[3] Schedule D Review | Murray–Darling Basin Authority (https://www.mdba.gov.au/publications-and-data/publications/schedule-d-review)

[4] Basin Officials Committee | Murray–Darling Basin Authority (https://www.mdba.gov.au/about-us/governance-and-committees/basin-officials-committee)

[5] Schedule D Review Synthesis Report (https://www.mdba.gov.au/sites/default/files/publications/schedule-d-review-synthesis-report.pdf)

[6] Schedule D Review | Murray–Darling Basin Authority (https://www.mdba.gov.au/publications-and-data/publications/schedule-d-review)

[7] The new National Water Agreement - DCCEEW (https://www.dcceew.gov.au/water/policy/policy/national-water-agreement)

[8] Schedule D Review | Murray–Darling Basin Authority (https://www.mdba.gov.au/publications-and-data/publications/schedule-d-review)

[9] Schedule D Review | Murray–Darling Basin Authority (https://www.mdba.gov.au/publications-and-data/publications/schedule-d-review)

[10] Schedule D Review | Murray–Darling Basin Authority (https://www.mdba.gov.au/publications-and-data/publications/schedule-d-review)

[11] Objectives and outcomes for river operations in the River Murray system (https://www.mdba.gov.au/sites/default/files/publications/objectives-and-outcomes-for-the-operation-of-the-river-murray-system-2025.pdf)

[12] Schedule D Review | Murray–Darling Basin Authority (https://www.mdba.gov.au/publications-and-data/publications/schedule-d-review)

[13] Schedule D Review | Murray–Darling Basin Authority (https://www.mdba.gov.au/publications-and-data/publications/schedule-d-review)

[14] Schedule D Review | Murray–Darling Basin Authority (https://www.mdba.gov.au/publications-and-data/publications/schedule-d-review)

[15] Schedule D Review | Murray–Darling Basin Authority (https://www.mdba.gov.au/publications-and-data/publications/schedule-d-review)

[16] Schedule D Review | Murray–Darling Basin Authority (https://www.mdba.gov.au/publications-and-data/publications/schedule-d-review)

[17] Parliamentary Joint Committee on Human Rights, Guide to Human Rights, June 2015, p. 55.

[18] Parliamentary Joint Committee on Human Rights, Guide to Human Rights, June 2015, p. 57.