Water Act 2007
No. 137, 2007
An Act to make provision for the management of the water
resources of the Murray‑Darling Basin, and to make provision for other
matters of national interest in relation to water and water information, and
for related purposes
[Assented to 3 September 2007]
The Parliament of Australia enacts:
Part 1—Preliminary
Division 1—General
1
Short title
This Act may be cited as the Water
Act 2007.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
|
Commencement
information
|
|
Column 1
|
Column 2
|
Column 3
|
|
Provision(s)
|
Commencement
|
Date/Details
|
|
1. Sections 1 and 2 and anything in this Act not
elsewhere covered by this table
|
The day on which this Act receives the Royal Assent.
|
3 September 2007
|
|
2. Sections 3 to 256 and Schedules 1 to 4
|
A day or days to be fixed by Proclamation.
However, if any of the provision(s) do not commence within
the period of 6 months beginning on the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that period.
|
3 March 2008
|
Note: This table
relates only to the provisions of this Act as originally passed by both Houses
of the Parliament and assented to. It will not be expanded to deal with
provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Objects
The objects of this Act are:
(a) to enable the Commonwealth, in
conjunction with the Basin States, to manage the Basin water resources in the
national interest; and
(b) to give effect to relevant
international agreements (to the extent to which those agreements are relevant
to the use and management of the Basin water resources) and, in particular, to
provide for special measures, in accordance with those agreements, to address
the threats to the Basin water resources; and
(c) in giving effect to those
agreements, to promote the use and management of the Basin water resources in a
way that optimises economic, social and environmental outcomes; and
(d) without limiting paragraph (b)
or (c):
(i) to ensure the return
to environmentally sustainable levels of extraction for water resources that
are overallocated or overused; and
(ii) to protect, restore
and provide for the ecological values and ecosystem services of the Murray‑Darling
Basin (taking into account, in particular, the impact that the taking of water
has on the watercourses, lakes, wetlands, ground water and water‑dependent
ecosystems that are part of the Basin water resources and on associated
biodiversity); and
(iii) subject to subparagraphs (i)
and (ii)—to maximise the net economic returns to the Australian community from
the use and management of the Basin water resources; and
(e) to improve water security for all
uses of Basin water resources; and
(f) to ensure that the management of
the Basin water resources takes into account the broader management of natural
resources in the Murray‑Darling Basin; and
(g) to achieve efficient and cost
effective water management and administrative practices in relation to Basin
water resources; and
(h) to provide for the collection,
collation, analysis and dissemination of information about:
(i) Australia’s water
resources; and
(ii) the use and management
of water in Australia.
4 Definitions
(1) In this Act:
ACCC means the Australian Competition and
Consumer Commission.
agency of the Commonwealth means:
(a) a Minister of the Crown for the
Commonwealth; or
(b) a Department of State for the
Commonwealth; or
(c) a body (whether incorporated or
not) established or appointed for a public purpose by or under a law of the
Commonwealth; or
(d) a body established, or appointed,
by the Governor‑General; or
(e) a person holding or performing the
duties of:
(i) an office established
by or under; or
(ii) an appointment made
under;
a law of the Commonwealth (other
than the office of head of a Department of State for the Commonwealth (however
described)); or
(f) a person holding or performing
the duties of an appointment that is made by the Governor‑General
(otherwise than under a law of the Commonwealth); or
(g) a company in which the
Commonwealth, or a body corporate referred to in paragraph (c) or (d), has
a controlling interest.
agency of a State means:
(a) a Minister of the Crown for the
State; or
(b) a Department of State for the
State; or
(c) a body (whether incorporated or
not) established or appointed for a public purpose by or under a law of the
State (including a local government body); or
(d) a body established or appointed
by:
(i) a Governor of the
State; or
(ii) a Minister of the
Crown for the State; or
(iii) if the State is the
Australian Capital Territory—the Australian Capital Territory Executive; or
(e) a person holding or performing the
duties of:
(i) an office established
by or under; or
(ii) an appointment made
under;
a law of the State (other than
the office of head of a Department of State for the State (however described));
or
(f) a person holding or performing
the duties of an appointment that is made by:
(i) a Governor of the
State; or
(ii) a Minister of the
Crown for the State; or
(iii) if the State is the
Australian Capital Territory—the Australian Capital Territory Executive;
(otherwise than under a law of
the State); or
(g) a company in which the State, or a
body corporate referred to in paragraph (c) or (d), has a controlling
interest.
appropriate enforcement agency has the meaning
given by section 137.
assist, in relation to an Authority delegate,
means:
(a) to perform functions in connection
with the Authority delegate’s performance or exercise of a function or power
delegated under section 199; or
(b) to perform services for the
Authority delegate in connection with the Authority delegate’s performance or
exercise of a function or power delegated under section 199.
Australia, when used in a geographical sense,
includes the external Territories.
authorised officer means an individual whose
appointment by the Authority under section 217 is in force.
Authority means the Murray‑Darling
Basin Authority.
Authority Chair means the Chair of the
Authority.
Authority delegate means a person to whom a
function or power is delegated under section 199.
Authority member means a member of the
Authority, and includes the Authority Chair.
Authority staff means the staff described in
section 206.
Basin Community Committee means the committee
established under section 202.
Basin Officials Committee means the committee
established under section 201.
Basin Plan means the Basin Plan adopted by
the Minister under section 44 (as amended from time to time).
Basin State means the following:
(a) New South Wales;
(b) Victoria;
(c) Queensland;
(d) South Australia;
(e) the Australian Capital Territory.
Basin water market trading objectives and principles
means the objectives and principles that are set out in Schedule 3.
Basin water resources means all water
resources within, or beneath, the Murray‑Darling Basin, but does not
include:
(a) water resources within, or
beneath, the Murray‑Darling Basin that are prescribed by the regulations
for the purposes of this paragraph; or
(b) ground water that forms part of
the Great Artesian Basin.
biodiversity means the variability among
living organisms from all sources (including terrestrial, marine and aquatic
ecosystems and the ecological complexes of which they are a part) and includes:
(a) diversity within species and
between species; and
(b) diversity of ecosystems.
Biodiversity Convention means the
Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992.
Note: The text of the Convention is set out in
Australian Treaty Series 1993 No. 32. In 2007, the text of a Convention in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII Internet site (www.austlii.edu.au).
Bonn Convention means the Convention on the
Conservation of Migratory Species of Wild Animals done at Bonn on 23 June
1979.
Note: The text of the Convention is set out in
Australian Treaty Series 1991 No. 32. In 2007, the text of a Convention in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII Internet site (www.austlii.edu.au).
bulk water charge means a charge payable for
the storage of water for, and the delivery of water to, any of the following:
(a) infrastructure operators;
(b) other operators of reticulated
water systems;
(c) other persons prescribed by the
regulations for the purposes of this paragraph.
Bureau means the Commonwealth Bureau of
Meteorology established under section 5 of the Meteorology Act 1955.
CAMBA means the Agreement between the
Government of Australia and the Government of the People’s Republic of China
for the Protection of Migratory Birds and their Environment done at Canberra on
20 October 1986.
Note: The text of the Agreement is set out in
Australian Treaty Series 1988 No. 22. In 2007, the text of an Agreement in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII Internet site (www.austlii.edu.au).
civil penalty provision has the meaning given
by section 146.
Climate Change Convention means the United
Nations Framework Convention on Climate Change done at New York on 9 May
1992.
Note: The text of the Convention is set out in
Australian Treaty Series 1994 No. 2. In 2007, the text of a Convention in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII Internet site (www.austlii.edu.au).
Commonwealth Environmental Water Holder means
the Commonwealth Environmental Water Holder established under section 104.
Commonwealth environmental water holdings has
the meaning given by section 108.
constitutional corporation means a corporation
to which paragraph 51(xx) of the Constitution applies.
consumptive pool means the amount of water
resources that can be made available for consumptive use in a particular water
resource plan area under the rules of the water resource plan for that water
resource plan area.
consumptive use means the use of water for
private benefit consumptive purposes including irrigation, industry, urban and
stock and domestic use.
contract includes a deed.
declared Ramsar wetlands has the meaning
given by section 17 of the Environment Protection and Biodiversity
Conservation Act 1999.
Desertification Convention means the United
Nations Convention to Combat Desertification in those Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa done at Paris on
17 June 1994.
Note: The text of the Convention is set out in
Australian Treaty Series 2000 No. 18. In 2007, the text of a Convention in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII Internet site (www.austlii.edu.au).
environmental assets includes:
(a) water‑dependent ecosystems;
and
(b) ecosystem services; and
(c) sites with ecological
significance.
environmentally sustainable level of take for
a water resource means the level at which water can be taken from that water
resource which, if exceeded, would compromise:
(a) key environmental assets of the
water resource; or
(b) key ecosystem functions of the
water resource; or
(c) the productive base of the water
resource; or
(d) key environmental outcomes for the
water resource.
environmental outcomes includes:
(a) ecosystem function; and
(b) biodiversity; and
(c) water quality; and
(d) water resource health.
Note 1: Paragraph (a) would cover, for example,
maintaining ecosystem function by the periodic flooding of floodplain wetlands.
Note 2: Paragraph (d) would cover, for example,
mitigating pollution and limiting noxious algal blooms.
environmental water means:
(a) held environmental water; or
(b) planned environmental water.
Environmental Water Holdings Special Account
means the account established by section 111.
environmental watering means the delivery or
use of environmental water to achieve environmental outcomes.
environmental watering schedule means an
agreement:
(a) that is an agreement to coordinate
the use of environmental water to maximise the benefits of environmental
watering across the Murray‑Darling Basin, a specified part of the Murray‑Darling
Basin or a specified area outside the Murray‑Darling Basin; and
(b) to which some or all of the
following are parties:
(i) holders of held
environmental water (including the Commonwealth);
(ii) owners of
environmental assets;
(iii) managers of planned
environmental water; and
(c) if the agreement relates to held
environmental water in the Murray‑Darling Basin—to which the Authority is
a party.
evidential material means any of the
following:
(a) a thing with respect to which a
provision (the compliance provision) of Part 2, or
regulations made for the purposes of Part 2, has been contravened or is
suspected, on reasonable grounds, of having been contravened;
(b) a thing as to which there are
reasonable grounds for suspecting that it will afford evidence as to the
contravention of the compliance provision;
(c) a thing as to which there are
reasonable grounds for suspecting that it is intended to be used for the
purpose of contravening the compliance provision.
executive officer of a body corporate means a
person (by whatever name called and whether or not a director of the body) who
is concerned in, or takes part in, the management of the body.
field relevant to the Authority’s functions
has a meaning affected by subsection 178(3).
ground water means:
(a) water occurring naturally below
ground level (whether in an aquifer or otherwise); or
(b) water occurring at a place below
ground that has been pumped, diverted or released to that place for the purpose
of being stored there;
but does not include water held in underground tanks,
pipes or other works.
held environmental water means water
available under:
(a) a water access right; or
(b) a water delivery right; or
(c) an irrigation right;
for the purposes of achieving environmental outcomes
(including water that is specified in a water access right to be for environmental
use).
infrastructure operator has the meaning given
by subsection 7(2).
infringement notice means an infringement
notice given under section 156.
interception activity means the interception
of surface water or ground water that would otherwise flow, directly or
indirectly, into a watercourse, lake, wetland, aquifer, dam or reservoir that
is a Basin water resource.
interest, in relation to land, means:
(a) any legal or equitable estate or
interest in the land; or
(b) a restriction on the use of the land,
whether or not annexed to other land; or
(c) any other right (including a right
under an option and a right of redemption), charge, power or privilege over, or
in connection with, the land or an interest in the land.
interim water resource plan has the meaning
given by section 242.
international agreement means an agreement
whose parties are:
(a) Australia and a foreign country;
or
(b) Australia and 2 or more foreign
countries.
irrigation infrastructure operator has the
meaning given by subsection 7(4).
irrigation network of an irrigation
infrastructure operator has the meaning given by subsection 7(4).
irrigation right means a right that:
(a) a person has against an irrigation
infrastructure operator to receive water; and
(b) is not a water access right or a
water delivery right.
JAMBA means the Agreement between the
Government of Australia and the Government of Japan for the Protection of
Migratory Birds and Birds in Danger of Extinction and their Environment done at
Tokyo on 6 February 1981.
Note: The text of the Agreement is set out in
Australian Treaty Series 1981 No. 6. In 2007, the text of an Agreement in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII Internet site (www.austlii.edu.au).
lake:
(a) means a natural lake, pond or
lagoon (whether modified or not); and
(b) includes a part of such a lake,
pond or lagoon.
long‑term annual diversion limit has
the meaning given by item 7 of the table in subsection 22(1).
long‑term average sustainable diversion limit has
the meaning given by item 6 of the table in subsection 22(1).
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 its original completion or upon the
completion of any improvement or replacement of the work. However, it does not
include:
(a) the execution of any improvement
to the design or function of that work; or
(b) the replacement of the whole of
that work; or
(c) work to remedy the extraordinary
failure of all or part of that work.
MDB Act means the Murray‑Darling
Basin Act 1993.
MDB Agreement has the same meaning as Agreement
in the MDB Act.
measures includes strategies, plans and
programs.
member of the governing body of a relevant interest
group has the meaning given by subsection 178(4).
modifications includes additions, omissions
and substitutions.
Murray‑Darling Basin means the area
falling within the Murray‑Darling Basin drainage division as set out in
the dataset for that division that:
(a) is dated 28 May 2007; and
(b) has a dataset scale of 1:250,000;
and
(c) specifies the boundary of the
Murray‑Darling Basin drainage division derived from the Australian
Drainage Divisions, as defined by the Australian Water Resources Management
Commission in 1997; and
(d) is held by the Commonwealth.
Note 1: An indicative map of this area is set out in
Schedule 1.
Note 2: A copy of the dataset can be obtained from
Geoscience Australia or the Department.
Murray‑Darling Basin Commission has the
same meaning as Commission in the MDB Act.
Murray‑Darling Basin Ministerial Council
has the same meaning as Ministerial Council in the MDB Agreement.
Murray‑Darling Basin Special Account
means the account established by section 209.
National Water Commission means the National
Water Commission established by section 6 of the National Water
Commission Act 2004.
National Water Information Standards means
the standards issued under section 130.
National Water Initiative means the
Intergovernmental Agreement on a National Water Initiative between the
Commonwealth of Australia and the Governments of New South Wales, Victoria,
Queensland, South Australia, Western Australia, Tasmania, the Australian
Capital Territory and the Northern Territory (as amended from time to time).
Natural Resource Management Ministerial Council
has the same meaning as in the National Water Commission Act 2004.
operating authority means:
(a) an agency of a Basin State that
has the function of managing a river flow control work or a salinity work
(whether or not the function is carried out by another person under a licence,
contract or other arrangement with the agency); or
(b) a person who has the function of
managing a river flow control work or a salinity work (whether or not the
function is carried out by another person under a licence, contract or other
arrangement with the person).
overallocation: there is an overallocation
for a water resource plan area if, with full development of water access rights
in relation to the water resources of the area, the total volume of water able
to be extracted by the holders of water access rights at a given time exceeds
the environmentally sustainable level of take for those water resources.
overuse: there is an overuse for
a water resource plan area if the total volume of water actually taken for
consumptive use from the water resources of the area at a given time exceeds
the environmentally sustainable level of take for those water resources.
Note: An overuse may arise for a water resource plan
area if the area is overallocated, or if the planned allocation for the area is
exceeded due to inadequate monitoring or accounting.
penalty unit has the meaning given by section 4AA
of the Crimes Act 1914.
planned environmental water has the meaning
given by section 6.
premises includes the following:
(a) a building;
(b) a place (including an area of
land);
(c) a vehicle;
(d) a vessel;
(e) an aircraft;
(f) a water resource;
(g) any part of premises (including
premises referred to in paragraphs (a) to (f)).
principles of ecologically sustainable development
has the meaning given by subsection (2).
Ramsar Convention means the Convention on
Wetlands of International Importance especially as Waterfowl Habitat done at
Ramsar, Iran, on 2 February 1971.
Note: The text of the Convention is set out in
Australian Treaty Series 1975 No. 48. In 2007, the text of a Convention in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII Internet site (www.austlii.edu.au).
referring State has the meaning given by
section 5.
registrable water rights has the meaning
given by section 101.
regulated water charges has the meaning given
by section 91.
relevant international agreement means the
following:
(a) the Ramsar Convention;
(b) the Biodiversity Convention;
(c) the Desertification Convention;
(d) the Bonn Convention;
(e) CAMBA;
(f) JAMBA;
(g) ROKAMBA;
(h) the Climate Change Convention;
(i) any other international
convention to which Australia is a party and that is:
(i) relevant to the use
and management of the Basin water resources; and
(ii) prescribed by the
regulations for the purposes of this paragraph.
relevant State Minister, for a Basin State,
means:
(a) the Minister of the Crown for the
State who is responsible for the administration of the State’s water management
law; or
(b) if there is more than one such
Minister—the Minister of the Crown for the State that the Premier of the State
advises the Authority, in writing, is the relevant State Minister for the
State.
river flow control work has the meaning given
by section 8.
ROKAMBA means the Agreement with the
Government of the Republic of Korea on the Protection of Migratory Birds done
at Canberra on 6 December 2006.
Note: The text of the Agreement is set out in
Australian Treaty Series 2007 No. 24. In 2007, the text of a Convention in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII Internet site (www.austlii.edu.au).
salinity work means a work to reduce, or
maintain, salinity levels in the Murray‑Darling Basin.
State includes the Australian Capital
Territory and the Northern Territory.
State water management law means:
(a) the Water Management Act 2000,
the Water Act 1912 and the Rivers and Foreshores Improvement Act 1948
of New South Wales; or
(b) the Water Act 1989 and
Parts 4 and 5 of the Catchment and Land Protection Act 1994 of
Victoria; or
(c) the Water Act 2000 of
Queensland; or
(d) the Natural Resources
Management Act 2004 of South Australia; or
(e) the Water Resources Act 2007
of the Australian Capital Territory; or
(f) a law of a Basin State that:
(i) is relevant to the
management of Basin water resources; and
(ii) is prescribed by the
regulations for the purposes of this definition;
and includes regulations, and other instruments, made
under those laws.
State water sharing arrangement means the
provisions of:
(a) the MDB Agreement; or
(b) any arrangements prescribed by the
regulations for the purposes of this paragraph;
that deal with the sharing of water between States.
surface water includes:
(a) water in a watercourse, lake or
wetland; and
(b) any water flowing over or lying on
land:
(i) after having
precipitated naturally; or
(ii) after having risen to
the surface naturally from underground.
take water from a water resource means to
remove water from, or to reduce the flow of water in or into, the water
resource including by any of the following means:
(a) pumping or siphoning water from
the water resource;
(b) stopping, impeding or diverting
the flow of water in or into the water resource;
(c) releasing water from the water
resource if the water resource is a wetland or lake;
(d) permitting water to flow from the
water resource if the water resource is a well or watercourse;
and includes storing water as part of, or in a way that is
ancillary to, any of the processes or activities referred to in paragraphs (a)
to (d).
temporary diversion provision has the meaning
given by item 7 of the table in subsection 22(1).
thing includes a substance, and a thing in
electronic or magnetic form.
tradeable water rights means:
(a) water access rights; or
(b) water delivery rights; or
(c) irrigation rights.
transitional water resource plan has the
meaning given by section 241.
water access entitlement means a perpetual or
ongoing entitlement, by or under a law of a State, to exclusive access to a
share of the water resources of a water resource plan area.
water access right:
(a) means any right conferred by or
under a law of a State to do either or both of the following:
(i) to hold water from a
water resource;
(ii) to take water from a
water resource; and
(b) without limiting paragraph (a),
includes the following rights of the kind referred to in that paragraph:
(i) stock and domestic rights;
(ii) riparian rights;
(iii) a water access
entitlement;
(iv) a water allocation; and
(c) includes any other right in
relation to the taking or use of water that is prescribed by the regulations
for the purposes of this paragraph.
water accounting period for a water resource
plan area has the meaning given by item 2 of the table in subsection 22(1).
water allocation means the specific volume of
water allocated to water access entitlements in a given water accounting
period.
water charge rules has the meaning given by
section 92.
water charging objectives and principles means
the objectives set out in Schedule 2.
watercourse:
(a) means a river, creek or other
natural watercourse (whether modified or not) in which water is contained or
flows (whether permanently or from time to time); and
(b) includes:
(i) a dam or reservoir
that collects water flowing in a watercourse; and
(ii) a lake or wetland
through which water flows; and
(iii) a channel into which
the water of a watercourse has been diverted; and
(iv) part of a watercourse; and
(v) an estuary through
which water flows.
water delivery right means a right to have
water delivered by an infrastructure operator.
water‑dependent ecosystem means a
surface water ecosystem or a ground water ecosystem, and its natural components
and processes, that depends on periodic or sustained inundation, waterlogging
or significant inputs of water for its ecological integrity and includes an
ecosystem associated with:
(a) a wetland; or
(b) a stream and its floodplain; or
(c) a lake or a body of water (whether
fresh or saline); or
(d) a salt marsh; or
(e) an estuary; or
(f) a karst system; or
(g) a ground water system;
and a reference to a water‑dependent ecosystem
includes a reference to the biodiversity of the ecosystem.
water information has the meaning given by
section 125.
water market rules has the meaning given by
section 97.
water resource means:
(a) surface water or ground water; or
(b) a watercourse, lake, wetland or
aquifer (whether or not it currently has water in it);
and includes all aspects of the water resource (including
water, organisms and other components and ecosystems that contribute to the
physical state and environmental value of the water resource).
water resource plan for a water resource plan
area means a plan that:
(a) provides for the management of the
water resource plan area; and
(b) is either:
(i) accredited under
section 63; or
(ii) adopted under section 69;
but only to the extent to which the water resource plan:
(c) relates to Basin water resources;
and
(d) makes provision in relation to the
matters that the Basin Plan requires a water resource plan to include.
water resource plan area means an area that:
(a) contains part of the Basin water
resources; and
(b) is specified in the Basin Plan as
an area that is a water resource plan area for the purposes of this Act.
Note: See item 2 of the table in subsection 22(1).
water resources of a water resource plan area
has the meaning given by item 2 of the table in subsection 22(1).
water service infrastructure has the meaning
given by subsection 7(3).
water trading rules means the rules included
in the Basin Plan under item 12 of the table in subsection 22(1).
wetland has the same meaning as in the Ramsar
Convention.
(2) The following principles are principles
of ecologically sustainable development:
(a) decision‑making processes
should effectively integrate both long‑term and short‑term
economic, environmental, social and equitable considerations;
(b) if there are threats of serious or
irreversible environmental damage, lack of full scientific certainty should not
be used as a reason for postponing measures to prevent environmental
degradation;
(c) the principle of inter‑generational
equity—that the present generation should ensure that the health, biodiversity
and productivity of the environment is maintained or enhanced for the benefit
of future generations;
(d) the conservation of biodiversity
and ecological integrity should be a fundamental consideration in decision‑making;
(e) improved valuation, pricing and
incentive mechanisms should be promoted.
5
Referring States
Reference of matters by State Parliament to
Commonwealth Parliament
(1) A State is a referring State
if the Parliament of the State has referred the matters covered by subsections (3)
and (4) to the Parliament of the Commonwealth for the purposes of paragraph
51(xxxvii) of the Constitution:
(a) if and to the extent that the
matters are not otherwise included in the legislative powers of the Parliament
of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii)
of the Constitution); and
(b) if and to the extent to which the
matters are included in the legislative powers of the Parliament of the State.
This subsection has effect subject to subsections (5)
and (6).
(2) A State is a referring State
even if a law of the State provides that the reference to the Parliament of the
Commonwealth of either or both of the matters covered by subsections (3)
and (4) is to terminate in particular circumstances.
Reference covering initial provisions of this Act
(3) This subsection covers the matters to
which the referred provisions relate to the extent of making laws with respect
to those matters by including the referred provisions.
Reference covering amendments of this Act
(4) This subsection covers the matter of the
management of water within or beneath the Murray‑Darling Basin to the
extent of the making of laws with respect to those matters by making express
amendments of this Act.
Effect of termination of reference
(5) A State ceases to be a referring
State if the State’s initial reference terminates.
(6) A State ceases to be a referring
State if:
(a) the State’s amendment reference
terminates; and
(b) subsection (7) does not apply
to the termination.
(7) A State does not cease to be a referring
State because of the termination of its amendment reference if:
(a) the termination is effected by the
Governor of that State fixing a day by proclamation as the day on which the
reference terminates; and
(b) the day fixed is no earlier than
the first day after the end of the period of 6 months beginning on the day on
which the proclamation is published; and
(c) that State’s amendment reference,
and the amendment reference of every other referring State, terminates on the
same day.
Definitions
(8) In this section:
amendment reference of a State means the
reference by the Parliament of the State to the Parliament of the Commonwealth
of the matters covered by subsection (4).
initial reference of a State means the
reference by the Parliament of the State to the Parliament of the Commonwealth
of the matters covered by subsection (3).
referred provisions means this Act (other
than Part 7) as originally enacted to the extent to which it deals with
matters that are included in the legislative powers of the Parliaments of the
States.
the management of water within or beneath the Murray‑Darling
Basin includes the following:
(a) the management of any such water
for consumptive purposes (including for irrigation, industry, urban use and
stock and domestic use);
(b) the management of any such water
for environmental purposes (including for ecosystem function, biodiversity,
water quality and river health);
(c) trading of rights in or in
relation to any such water;
(d) charging for or in relation to any
such water;
(e) the construction, operation and
maintenance of works for regulation or control of the flow of any such water;
(f) the powers, functions and
operation of Commonwealth authorities in relation to any such water.
6
Planned environmental water
(1) For the purposes of this Act, planned
environmental water is water that:
(a) is committed by:
(i) the Basin Plan or a
water resource plan for a water resource plan area; or
(ii) a plan made under a
State water management law; or
(iii) any other instrument
made under a law of a State;
to either or both of the
following purposes:
(iv) achieving environmental
outcomes;
(v) other environmental
purposes that are specified in the plan or the instrument; and
(b) cannot, to the extent to which it
is committed by that instrument to that purpose or those purposes, be taken or
used for any other purpose.
(2) For the purposes of this Act, planned
environmental water is water that:
(a) is preserved, by a law of a State
or an instrument made under a law of a State, for the purposes of achieving
environmental outcomes by any other means (for example, by means of the setting
of water flow or pressure targets or establishing zones within which water may
not be taken from a water resource); and
(b) cannot, to the extent to which it
is preserved by that instrument for that purpose or those purposes, be taken or
used for any other purpose.
(3) The water may be committed to, or
preserved for, the purpose or purposes referred to in paragraph (1)(a) or
(2)(a) either generally or only at specified times or in specified
circumstances.
(4) Without limiting paragraph (1)(b) or
(2)(b), the requirements of paragraph (1)(b) or (2)(b) are taken to have
been met even if the water is taken or used for another purpose in emergency
circumstances in accordance with:
(a) the instrument referred to in that
paragraph; or
(b) the law under which the instrument
is made; or
(c) another law.
7
Infrastructure operators etc.
(1) This section applies if a person owns or
operates infrastructure for one or more of the following purposes:
(a) the storage of water;
(b) the delivery of water;
(c) the drainage of water;
for the purpose of providing a service to another person.
(2) The person is an infrastructure
operator.
(3) The infrastructure is water service
infrastructure.
(4) If the infrastructure operator operates
the water service infrastructure for the purposes of delivering water for the
primary purpose of being used for irrigation:
(a) the operator is an irrigation
infrastructure operator; and
(b) the infrastructure is the operator’s
irrigation network.
8
River flow control works
(1) For the purposes of this Act, a
river flow control work is a work that:
(a) regulates the flow or control of
water in the watercourses of the Murray‑Darling Basin, including:
(i) a dam, barrage, bank,
regulator, weir or lock; or
(ii) a work connecting a
river channel with an off‑stream work that regulates the flow or control
of water; or
(iii) a work (including a
canal) connecting a river channel with another river channel; and
(b) is either:
(i) owned by, or is under
the control of, the Commonwealth or a Basin State; or
(ii) specified in the
regulations for the purposes of this paragraph.
(2) However, river flow control work
does not include:
(a) a work that is under the control
of the body that is entitled, under the Snowy Hydro Corporatisation Act 1997
of New South Wales, to the Snowy water licence within the meaning of that Act;
or
(b) a work operated primarily to
deliver water for urban retail supply; or
(c) a work specified in the
regulations.
(3) In applying paragraph (2)(a), a
variation of the licence, or an amendment of the Snowy Hydro Corporatisation
Act 1997 of New South Wales, after the commencement of this section is to
be disregarded unless the variation is prescribed by the regulations for the
purposes of this subsection.
9
Constitutional basis for Act
(1) This Act relies on:
(a) the Commonwealth’s legislative
powers under paragraphs 51(i), (v), (viii), (xi), (xv), (xx), (xxix) and
(xxxix), and section 122, of the Constitution; and
(b) any implied legislative powers of
the Commonwealth.
Note 1: See also sections 36 and 37, which clarify
the constitutional basis for section 35.
Note 2: See also sections 60 and 61, which clarify
the constitutional basis for section 59.
Note 3: See also section 94, which clarifies the
constitutional basis for the water charge rules made under Division 1 of
Part 4.
Note 4: See also section 99, which clarifies the
constitutional basis for the water market rules made under Division 2 of
Part 4.
Note 5: See also section 119, which clarifies the
constitutional basis for Part 7.
Note 6: See also section 216, which clarifies the
constitutional basis for Part 10.
(2) If a State is a referring State, the
operation of this Act (other than Part 7) in that State also relies on the
referral that the State gives under paragraph 51(xxxvii) of the Constitution.
10
Basis for Basin water charge, water trading and water market rules
(1) This Act deals with, and provides for
plans and rules made under this Act to deal with:
(a) water charges in relation to:
(i) the Basin water
resources; or
(ii) water service
infrastructure that carries Basin water resources; or
(iii) water access rights,
irrigation rights or water delivery rights in relation to Basin water
resources; and
(b) the trading and transfer of
tradeable water rights in relation to the Basin water resources; and
(c) the market for tradeable water
rights in relation to the Basin water resource.
(2) The basis for dealing with those topics
is that:
(a) the Basin water resources are
physically interconnected; and
(b) the Basin water resources are a
major Australian water resource and, because they are interconnected, are the
major Australian water resource in relation to which:
(i) tradeable water rights
are able to be traded between States; and
(ii) water is, pursuant to
that trade, able to be delivered between States; and
(c) the Basin water resources are
scarce and at risk of continuing scarcity and further depletion; and
(d) the Basin water resources are
subject to significant environmental threat; and
(e) there are important and
significant environmental assets that are associated with the Basin water
resources and that need protection; and
(f) the inefficient and/or
inappropriate use of the Basin water resources would have a significant
detrimental impact on:
(i) the availability of
the Basin water resources; and
(ii) the health of the
Basin water resources or the environmental assets associated with the Basin
water resources; and
(g) the inefficient and/or
inappropriate use of the Basin water resources would have a significant
detrimental economic and social impact on the wellbeing of the communities in
the Murray‑Darling Basin; and
(h) this Act and the plans and rules
relating to:
(i) water charging; and
(ii) trading; and
(iii) the transfer of
tradeable water rights; and
(iv) water markets;
will promote:
(v) the more efficient use
of the Basin water resources; and
(vi) the continued
availability of the Basin water resources; and
(vii) the health of the Basin
water resources and the environmental assets associated with the Basin water
resources; and
(viii) the economic and
social wellbeing of the communities in the Murray‑Darling Basin.
11
Reading down provision in relation to the operation of sections 99 and 100
of the Constitution
(1) If:
(a) the operation of a provision of
this Act, or of regulations or another instrument made under this Act, in
reliance on the Commonwealth’s legislative powers under paragraph 51(i) or (xx)
of the Constitution would be invalid because of section 99 or 100 of the
Constitution; and
(b) the operation of that provision in
reliance on another legislative power, or other legislative powers, of the
Commonwealth would not be invalid because of section 99 or 100 of the
Constitution;
it is the intention of the Parliament that the provision
operate in reliance on the legislative power or powers referred to in paragraph (b).
(2) Without limiting paragraph (1)(b),
the reference in that paragraph to a legislative power of the Commonwealth
includes a reference to a legislative power under a referral under paragraph
51(xxxvii) of the Constitution.
(3) If:
(a) a provision of this Act, or of
regulations or another instrument made under this Act, operates in relation to
trade or commerce; and
(b) the operation of the provision is
invalid, under section 99 or 100 of the Constitution, in relation to trade
or commerce between the States;
it is intention of the Parliament that the provision
operate in relation to trade or commerce within the States.
(4) Subsections (1) and (3) may both
operate in relation to the same provision of this Act, or of regulations or
another instrument made under this Act and, if they do, subsection (1) is
to be applied first and then subsection (3).
(5) This section does not affect the
operation of section 15A of the Acts Interpretation Act 1901 in
relation to the provisions of this Act or the regulations or other instruments
made under this Act.
12
Application to Crown etc.
(1) This Act binds the Crown in each of its
capacities.
(2) This Act does not make the Crown liable
to be:
(a) prosecuted for an offence; or
(b) subject to civil proceedings for a
civil penalty for a contravention of a civil penalty provision; or
(c) given an infringement notice.
(3) This Act does not make an agency of the
Commonwealth, or an agency of a State, liable to be:
(a) prosecuted for an offence; or
(b) subject to civil proceedings for a
civil penalty for a contravention of a civil penalty provision; or
(c) given an infringement notice.
(4) Subsection (3) does not apply to the
following:
(a) an agency of the Commonwealth of
the kind referred to in paragraph (g) of the definition of agency
of the Commonwealth in subsection 4(1);
(b) an agency of a State of the kind
that:
(i) is referred to in paragraph (c)
of the definition of agency of a State in subsection 4(1); and
(ii) operates primarily on
a commercial basis;
(c) an agency of a State of the kind
referred to in paragraph (g) of the definition of agency of
a State in subsection 4(1).
13 The
Native Title Act 1993 not affected
Nothing in this Act affects the
operation of the Native Title Act 1993.
Division 2—Interaction between Commonwealth water legislation and State
laws
14
Coverage of this Division
(1) This Division (other than section 15)
applies only to laws of a referring State.
(2) This Division applies only to the
following laws of the Commonwealth:
(a) this Act (other than Part 7);
(b) regulations made under this Act
(other than regulations made for the purposes of a provision of Part 7);
(c) the Basin Plan;
(d) a water resource plan for a water
resource plan area that is made under this Act;
(e) water charge rules;
(f) any other instrument made under
this Act (other than Part 7).
These are referred to in this Division as the Commonwealth
water legislation.
(3) For the purposes of this Division:
law of a State means a law of, or in force
in, a State but does not include a law of the Commonwealth in force in the
State.
15
Concurrent operation intended
(1) The Commonwealth water legislation is not
intended to exclude or limit the concurrent operation of any law of a State.
(2) If:
(a) an act or omission of a person is
both an offence against the Commonwealth water legislation and an offence
against the law of a State; and
(b) the person is convicted of either
of those offences;
the person is not liable to be convicted of the other of
those offences.
(3) This section does not apply to a law of a
State if there is a direct inconsistency between the Commonwealth water
legislation and that law of a State.
Note: Section 17 prevents direct inconsistency
arising in some cases by limiting the operation of the Commonwealth water
legislation.
16
Commonwealth water legislation does not apply to matters declared by State law
to be an excluded matter
(1) Subsection (2) applies if a
provision of a law of a State declares a matter to be an excluded matter for
the purposes of this section in relation to:
(a) the whole of the Commonwealth
water legislation; or
(b) a specified provision of the
Commonwealth water legislation; or
(c) the Commonwealth water legislation
other than a specified provision; or
(d) the Commonwealth water legislation
otherwise than to a specified extent.
(2) By force of this subsection:
(a) none of the provisions of the
Commonwealth water legislation (other than this section) applies in or in
relation to the State with respect to the matter if the declaration is one to
which paragraph (1)(a) applies; and
(b) the specified provision of the
Commonwealth water legislation does not apply in or in relation to the State
with respect to the matter if the declaration is one to which paragraph (1)(b)
applies; and
(c) the provisions of the Commonwealth
water legislation (other than this section and the specified provisions) do not
apply in or in relation to the State with respect to the matter if the
declaration is one to which paragraph (1)(c) applies; and
(d) the provisions of the Commonwealth
water legislation (other than this section and otherwise than to the specified
extent) do not apply in or in relation to the State with respect to the matter
if the declaration is one to which paragraph (1)(d) applies.
(3) Subsection (2) does not apply to the
declaration to the extent to which the regulations provide that that subsection
does not apply to that declaration.
(4) In this section:
matter includes act, omission, body, person
or thing.
17
Avoiding direct inconsistency arising between the Commonwealth water
legislation and State laws
Section overrides other provisions of the Commonwealth
water legislation
(1) This section has effect despite anything
else in the Commonwealth water legislation.
Section does not deal with provisions capable of
concurrent operation
(2) This section does not apply to a
provision of a law of a State that is capable of concurrent operation with the
Commonwealth water legislation.
Note: This kind of provision is dealt with by
section 15.
When this section applies to a provision of a State law
(3) This section applies to the interaction
between a provision (the State provision) of a law of a State and
a provision (the Commonwealth provision) of the Commonwealth
water legislation only if the State provision is declared by a law of the State
to be a Commonwealth water legislation displacement provision for the purposes
of this section (either generally or specifically in relation to the
Commonwealth provision).
State provision specifically permitting, authorising or
requiring act or thing to be done
(4) The Commonwealth provision does not:
(a) prohibit the doing of an act; or
(b) impose a liability (whether civil
or criminal) for doing an act;
if the State provision specifically permits, authorises or
requires the doing of that act.
Other cases
(5) The Commonwealth provision does not
operate in or in relation to the State to the extent necessary to ensure that
no inconsistency arises between:
(a) the Commonwealth provision; and
(b) the State provision to the extent
to which the State provision would, but for this subsection, be inconsistent
with the Commonwealth provision.
Note 1: The State provision is not covered by this
subsection if subsection (4) applies to the State provision: if that
subsection applies there would be no potential inconsistency to be dealt with
by this subsection.
Note 2: The operation of the State provision will be
supported by section 15 to the extent to which it can operate concurrently
with the Commonwealth provision.
18
Regulations may modify operation of the Commonwealth water legislation to deal
with interaction between that legislation and State laws
(1) The regulations may modify the operation
of the Commonwealth water legislation so that:
(a) provisions of the Commonwealth
water legislation do not apply to a matter that is dealt with by a law of a
State specified in the regulations; or
(b) no inconsistency arises between
the operation of a provision of the Commonwealth water legislation and the
operation of a provision of a law of a State specified in the regulations.
(2) Without limiting subsection (1),
regulations made for the purposes of that subsection may provide that a
provision of the Commonwealth water legislation:
(a) does not apply to:
(i) a person specified in
the regulations; or
(ii) a body specified in
the regulations; or
(iii) circumstances
specified in the regulations; or
(iv) a person or body
specified in the regulations in the circumstances specified in the regulations;
or
(b) does not prohibit an act to the
extent to which the prohibition would otherwise give rise to an inconsistency
with a law of a State; or
(c) does not require a person to do an
act to the extent to which the requirement would otherwise give rise to an
inconsistency with a law of a State; or
(d) does not authorise a person to do
an act to the extent to which the conferral of that authority on the person
would otherwise give rise to an inconsistency with a law of a State; or
(e) does not impose an obligation on a
person to the extent to which complying with that obligation would require the
person to not comply with an obligation impose on the person under a law of a
State; or
(f) authorises a person to do
something for the purposes of the Commonwealth water legislation that the
person:
(i) is authorised to do
under a law of a State; and
(ii) would not otherwise be
authorised to do under the Commonwealth water legislation; or
(g) will be taken to be satisfied if a
law of a State is satisfied.
(3) In this section:
matter includes act, omission, body, person
or thing.
Part 2—Management of Basin water resources
Division 1—Basin Plan
Subdivision A—Introduction
19
Simplified outline
(1) This section sets out a simplified outline
of this Part.
(2) There is to be a Basin Plan for the
management of the Basin water resources. The Basin Plan will provide for limits
on the quantity of water that may be taken from the Basin water resources as a
whole and from the water resources of each water resource plan area. It will
also provide for the requirements to be met by the water resource plans for
particular water resource plan areas (these water resource plans are dealt with
in Division 2).
(3) The Authority must prepare a Basin Plan
and give it to the Minister for adoption. The Minister may adopt the Basin Plan
without modification or direct the Authority to modify the Plan.
(4) The Authority may prepare amendments of
the Basin Plan and give them to the Minister for adoption. The Minister may
adopt the amendments of the Basin Plan without modifications or direct the
Authority to modify the amendments.
(5) The Authority must review the Basin Plan
at least every 10 years (or sooner if the Minister or all the Basin States
request).
Subdivision B—Basin Plan, its purpose and contents
20
Purpose of Basin Plan
The purpose of the Basin Plan is to
provide for the integrated management of the Basin water resources in a way
that promotes the objects of this Act, in particular by providing for:
(a) giving effect to relevant
international agreements (to the extent to which those agreements are relevant
to the use and management of the Basin water resources); and
(b) the establishment and enforcement
of environmentally sustainable limits on the quantities of surface water and
ground water that may be taken from the Basin water resources (including by
interception activities); and
(c) Basin‑wide environmental
objectives for water‑dependent ecosystems of the Murray‑Darling
Basin and water quality and salinity objectives; and
(d) the use and management of the
Basin water resources in a way that optimises economic, social and
environmental outcomes; and
(e) water to reach its most productive
use through the development of an efficient water trading regime across the
Murray‑Darling Basin; and
(f) requirements that a water
resource plan for a water resource plan area must meet if it is to be
accredited or adopted under Division 2; and
(g) improved water security for all
uses of Basin water resources.
21
General basis on which Basin Plan to be developed
Basin Plan to implement international agreements
(1) The Basin Plan (including any
environmental watering plan or water quality and salinity management plan
included in the Basin Plan) must be prepared so as to provide for giving effect
to relevant international agreements (to the extent to which those agreements
are relevant to the use and management of the Basin water resources).
(2) Without limiting subsection (1), the
Basin Plan must:
(a) be prepared having regard to:
(i) the fact that the use
of the Basin water resources has had, and is likely to have, significant
adverse impacts on the conservation and sustainable use of biodiversity; and
(ii) the fact that the
Basin water resources require, as a result, special measures to manage their
use to conserve biodiversity; and
(b) promote sustainable use of the
Basin water resources to protect and restore the ecosystems, natural habitats
and species that are reliant on the Basin water resources and to conserve
biodiversity.
Note: See Articles 7 and 8 of the Biodiversity
Convention.
(3) Without limiting subsection (1), the
Basin Plan must also:
(a) promote the wise use of all the
Basin water resources; and
(b) promote the conservation of
declared Ramsar wetlands in the Murray‑Darling Basin.
Note: See Article 3 of the Ramsar Convention.
Basis on which Basin Plan to be developed
(4) Subject to subsections (1), (2) and
(3), the Authority and the Minister must, in exercising their powers and
performing their functions under this Division:
(a) take into account the principles
of ecologically sustainable development; and
(b) act on the basis of the best
available scientific knowledge and socio‑economic analysis; and
(c) have regard to the following:
(i) the National Water
Initiative;
(ii) the consumptive and
other economic uses of Basin water resources;
(iii) the diversity and
variability of the Basin water resources and the need to adapt management
approaches to that diversity and variability;
(iv) the management
objectives of the Basin States for particular water resources;
(v) social, cultural,
Indigenous and other public benefit issues;
(vi) broader regional
natural resource management planning processes;
(vii) the effect, or
potential effect, of the Basin Plan on the use and management of water
resources that are not Basin water resources;
(viii) the effect, or the
potential effect, of the use and management of water resources that are not
Basin water resources on the use and management of the Basin water resources;
and
(ix) the State water sharing
arrangements.
Note 1: Paragraph (b): the best available
scientific knowledge includes the best available systems for accounting for
water resources.
Note 2: An example of a management objective referred
to in subparagraph (c)(iv) might be preservation of the natural values of
a river system through no development or minimal development.
Note 3: See also subsection 25(3) (which deals with the
water quality and salinity management plan).
Basin Plan not to reduce protection of planned
environmental water provided for under existing State water management laws
(5) The Basin Plan must ensure that there is
no net reduction in the protection of planned environmental water from the
protection provided for under the State water management law of a Basin State
immediately before the Basin Plan takes effect.
Basin Plan not to be inconsistent with Snowy Water
Licence
(6) The Basin Plan must not be inconsistent
with the provisions of the licence issued under section 22 of the Snowy
Hydro Corporatisation Act 1997 of New South Wales.
(7) In applying subsection (6), a
variation of the licence after the commencement of Part 2 of this Act is
to be disregarded unless the variation is prescribed by the regulations for the
purposes of this subsection.
22
Content of Basin Plan
Mandatory content of Basin Plan
(1) The Basin Plan must include the matters
set out in the following table:
|
Mandatory content of
Basin Plan
|
|
Item
|
Matter to be included
|
Specific requirements
|
|
1
|
A description of the Basin water resources and the context
in which those resources are used.
|
The description must include information about:
(a) the size, extent, connectivity, variability and condition
of the Basin water resources; and
(b) the uses to which the Basin water resources are put
(including by Indigenous people); and
(c) the users of the Basin water resources; and
(d) the social and economic circumstances of Basin
communities dependent on the Basin water resources.
|
|
2
|
An identification of the particular areas that are to be water
resource plan areas for the purposes of this Act and the periods that
are to be the water accounting periods for each of those areas.
The Basin Plan may also provide that an area is to be a
water resource plan area for the purposes of this Act from the time specified
in the Basin Plan. The time may be specified as a particular date, as the
time when particular conditions are satisfied or particular circumstances
start to exist or in any other way. If the Basin Plan includes a provision to
this effect, the area is a water resource plan area only from the time
specified in the Basin Plan.
|
The identification must specify one or more of the
following as the water resources to which any water resource plan for the
area will apply:
(a) all (or a specified part or share) of the surface water
in a particular area;
(b) all (or a specified part or share) of the ground water
beneath a particular area;
(c) all (or a specified part) of a particular watercourse,
lake or aquifer.
A reference in this Act to the water resources of
the water resource plan area is a reference to the water resources identified
as the ones to which the water resource plan applies.
The water resource plan areas in a State, and the water
accounting periods for those areas, that are identified in the Basin Plan
must, as far as possible, be aligned with the areas and accounting periods
provided for in or under the State water management law of that State.
However, this does not prevent the Basin Plan identifying an area as a water
resource plan area if none of that area falls within an area provided for in
or under the State water management law of that State.
The Authority must consult a State before the Basin Plan
identifies as a water resource plan area an area none of which falls within
an area provided for in or under the State water management law of that
State.
|
|
3
|
An identification of the risks to the condition, or
continued availability, of the Basin water resources.
|
The risks dealt with must include the risks to the
availability of Basin water resources that arise from the following:
(a) the taking and use of water (including through
interception activities);
(b) the effects of climate change;
(c) changes to land use;
(d) the limitations on the state of knowledge on the basis of
which estimates about matters relating to Basin water resources are made.
|
|
4
|
Management objectives and outcomes to be achieved by the
Basin Plan.
|
The objectives and outcomes must be consistent with
purposes set out in section 20.
The objectives and outcomes must address:
(a) environmental outcomes; and
(b) water quality and salinity; and
(c) long‑term average sustainable diversion limits and
temporary diversion limits; and
(d) trading in water access rights.
|
|
5
|
The strategies to be adopted to manage, or address, the
risks identified under item 3.
|
The strategies must relate to the management of Basin
water resources.
|
|
6
|
The maximum long‑term annual average quantities of
water that can be taken, on a sustainable basis, from:
(a) the Basin water resources as a whole; and
(b) the water resources, or particular parts of the water
resources, of each water resource plan area.
The averages are the long‑term average
sustainable diversion limits for the Basin water resources, and the
water resources, or particular parts of the water resources, of the water
resource plan area.
|
The limit must comply with section 23.
Section 75 requires particular matters to be
specified in the Basin Plan if a long‑term average sustainable
diversion limit for the water resources, or a particular part of the water
resources, of a water resource plan area is reduced.
|
|
7
|
For the water resources, or particular parts of the water
resources, of each water resource plan area, the long‑term annual
average quantities of water that may, on a temporary basis, be taken year by
year from the water resources, or particular parts of the water resources, in
addition to the long‑term average sustainable diversion limit for those
water resources or that particular part.
The average is the temporary diversion provision
for those water resources or that particular part.
The sum of:
(a) the long‑term average sustainable diversion limit;
and
(b) the temporary diversion provision;
for those water resources or that particular part is the long‑term
annual diversion limit for those water resources or that particular
part.
|
The temporary diversion provision must comply with section 24.
|
|
8
|
The method for determining whether the long‑term
annual diversion limit for the water resources, or a particular part of the
water resources, of a water resource plan area has been complied with (whether
in relation to a particular water accounting period or over a longer period) and
the extent of any failure to comply with that limit.
|
The method must include provision for accounting for any
trading, or transfer, of tradeable water rights.
|
|
9
|
An environmental watering plan.
|
The environmental watering plan must comply with section 28.
|
|
10
|
A water quality and salinity management plan.
|
The water quality and salinity management plan must comply
with section 25.
|
|
11
|
The requirements that a water resource plan for a water
resource plan area must comply with for it to be accredited or adopted under
Division 2.
|
The requirements must relate to matters that are relevant
to the sustainable use and management of the water resources of the water
resource plan area.
Subsection (3) provides that certain matters must be
included in the requirements.
|
|
12
|
Rules for the trading or transfer of tradeable water
rights in relation to Basin water resources.
See also section 26.
|
The rules must contribute to achieving the Basin water
market and trading objectives and principles that are set out in Schedule 3.
Without limiting the matters that the rules may deal with,
the rules must deal with the trading or transfer between Basin States of
tradeable water rights in relation to Basin water resources.
|
|
13
|
A program for monitoring and evaluating the effectiveness
of the Basin Plan.
|
The program must include the principles to be applied and
the framework to be used to monitor and evaluate the effectiveness of the
Basin Plan.
The program must include reporting requirements for the
Commonwealth and the Basin States.
The program must include 5 yearly reviews of:
(a) the water quality and salinity targets in the water
quality and salinity management plan; and
(b) the environmental watering plan.
|
(2) Areas identified as water resource plan
areas under item 2 of the table in subsection (1) may overlap.
Note: Although the areas may overlap, they may
relate to different water resources within the common area.
(3) Without limiting item 11 of the
table in subsection (1), the requirements specified under that item for a
water resource plan for a water resource plan area must include requirements in
relation to:
(a) the identification of the water
resource plan area; and
(b) the incorporation, and
application, of the long‑term annual diversion limit for the water
resources of the water resource plan area; and
(c) the sustainable use and management
of the water resources of the water resource plan area within that diversion
limit; and
(d) the regulation, for the purposes
of managing Basin water resources, of interception activities with a
significant impact (whether on an activity‑by‑activity basis or
cumulatively) on those water resources; and
(e) planning for environmental
watering; and
(f) water quality and salinity
objectives for the water resource plan area; and
(g) the circumstances in which
tradeable water rights in relation to the water resource plan area may be
traded, or transferred, and the conditions applicable to such trades or
transfers; and
(h) broad approaches to the way risks
to the water resources of the water resource plan area should be addressed; and
(i) metering the water taken from the
water resources of the water resource plan area and monitoring the water
resources of the water resource plan area; and
(j) reviews of the water resource
plan and amendments of the plan arising from those reviews; and
(k) the scientific information or models
on which the water resource plan is to be based.
The requirements in relation to the matters referred to in
paragraph (g) must contribute to achieving the Basin water market and
trading objectives and principles that are set out in Schedule 3.
(4) The requirements referred to in a
paragraph in subsection (3) need not apply in relation to the water
resource plan for a water resource plan area if those requirements are not
relevant to the water resource plan area given the management objectives for
the area.
Note: If the management objective for the area is to
preserve the natural values of a river system through no development, some of the
requirements that relate to the use and management of the water resources of
the water resource plan area may be irrelevant.
(5) The requirements specified under item 11
of the table in subsection (1) may include a requirement for a water
resource plan to provide for the metering of stock and domestic water use only
to the extent that such metering is necessary for the effective management of
the Basin water resources.
Note: Metering may, for example, be necessary for
the effective management of the Basin water resources where a particular ground
water resource is under stress or where there are local disputes about water
sharing.
(6) To avoid doubt:
(a) there may be different
requirements under item 11 of the table in subsection (1) for
different kinds of water resource plan areas or to meet different management
objectives; and
(b) a requirement under that item may
be one that, in accordance with its terms, does not apply to a particular water
resource plan area or applies only to a limited extent.
(7) The requirements referred to in paragraph (3)(d):
(a) may require that interception
activities with, or with the potential to have, significant impacts on the
water resources of the water resource plan area are assessed to determine
whether they are consistent with the water resource plan before they are
approved under:
(i) any other laws of a
Basin State; or
(ii) a particular law of a
Basin State; and
(b) may require that water access
rights be held for specified kinds of interception activities.
Other matters that may be included in Basin Plan
(8) The Basin Plan may also include any other
matters prescribed by the regulations for the purposes of this subsection.
Matters that may not be dealt with by the Basin Plan
(9) The provisions of the Basin Plan have
effect only to the extent to which they relate to a matter that is relevant to
the use or management of Basin water resources.
(10) A provision of the Basin Plan has no
effect to the extent to which the provision directly regulates:
(a) land use or planning in relation
to land use; or
(b) the management of natural
resources (other than water resources); or
(c) the control of pollution.
(11) For the purposes of subsection (10),
a provision directly regulates a matter referred to in paragraph (10)(a),
(b) or (c) if the provision:
(a) prohibits a person (including an
agency of a State) from undertaking an activity in relation to that matter
(either absolutely or unless the person satisfies particular conditions); or
(b) requires a person (including an
agency of a State) to undertake an activity in relation to that matter; or
(c) requires a person (including an agency
of a State) who undertakes an activity in relation to that matter to carry that
activity out in a particular way; or
(d) imposes an obligation on a person
(including an agency of a State) in relation to the carrying out of an activity
in relation to that matter, including an obligation to obtain consent or
approval in relation to that matter; or
(e) imposes an obligation on a person
(including an agency of a State) in connection with the performance of a
function relating to a matter referred to in paragraph (a), (b), (c) or
(d), including by obliging the person to impose such an obligation on another
person or agency.
This subsection does not limit subsection (10).
(12) Subsections (10) and (11) do not
prevent a provision of the Basin Plan having effect to the extent to which it:
(a) imposes a requirement of the kind
referred to in subsection (7); or
(b) sets targets under section 25
or 28; or
(c) imposes a requirement to report on
steps taken by a State to meet targets set in the Basin Plan.
23 Long‑term
average sustainable diversion limits
(1) A long‑term average sustainable
diversion limit for the Basin water resources, for the water resources of a
particular water resource plan area or for a particular part of those water
resources must reflect an environmentally sustainable level of take.
(2) A long‑term average sustainable
diversion limit for the Basin water resources, for the water resources of a
particular water resource plan area or for a particular part of those water
resources may be specified:
(a) as a particular quantity of water
per year; or
(b) as a formula or other method that
may be used to calculate a quantity of water per year; or
(c) in any other way that the
Authority determines to be appropriate.
24
Temporary diversion provision
(1) The purpose of a temporary diversion
provision for the water resources of a water resource plan area (or for a
particular part of those water resources) is to provide for a transition period
to minimise social and economic impacts when the long‑term average sustainable
diversion limit for those water resources (or that part of those resources) is
lower than the long‑term average quantity of water that has in fact been
being taken from those water resources (or that part of those water resources).
(2) The temporary diversion provision for the
water resources of a water resource plan area (or for a particular part of
those water resources) may be specified:
(a) as a particular quantity of water
per year; or
(b) as a formula or other method that
may be used to calculate a quantity of water per year; or
(c) in any other way that the
Authority determines to be appropriate.
(3) The temporary diversion provision for the
water resources of a water resource plan area (or for a particular part of those
water resources) may be zero.
(4) The temporary diversion provision for the
water resources of a water resource plan area (or for a particular part of
those water resources) may be different for different years.
(5) The temporary diversion provision for the
water resources of a water resource plan area (or for a particular part of
those water resources) that is not zero must reduce to zero by the end of the
period of 5 years starting at the beginning of the first year for which a
temporary diversion provision that is not zero has effect.
(6) A fresh determination of a temporary
diversion provision that is not zero must not be made in relation to the water
resources of a water resource plan area (or a particular part of those water
resources) unless the long‑term average sustainable diversion limit for
those water resources (or that part of those water resources) is reduced by
more than 5%.
(7) If a fresh determination of a temporary
diversion provision that is not zero is made under subsection (6) for:
(a) the water resources of a water
resource plan area; or
(b) a particular part of those water
resources;
the temporary diversion provision for those water
resources (or that part of those water resources) must reduce to zero by the
end of the period of 5 years starting at the beginning of the first year to
which the new long‑term average sustainable diversion limit for those
water resources (or that part of those water resources) has effect.
25
Water quality and salinity management plan
(1) The water quality and salinity management
plan must:
(a) identify the key causes of water
quality degradation in the Murray‑Darling Basin; and
(b) include water quality and salinity
objectives and targets for the Basin water resources.
(2) Without limiting paragraph (1)(b), a
salinity target referred to in that paragraph:
(a) may specify the place at which the
target is to be measured; and
(b) may specify a target in terms of a
particular level of salinity being met for a particular percentage of time.
(3) In exercising their powers and performing
their functions under this Division in relation to the water quality and
salinity management plan, the Authority and the Minister must have regard to
the National Water Quality Management Strategy endorsed by the Natural Resource
Management Ministerial Council.
Note: A copy of the National Water Quality
Management Strategy may be found on the Department’s website.
26
Water trading and transfer rules
(1) The provisions included in the Basin Plan
under item 12 of the table in subsection 22(1) (the water trading
rules) may deal with the following matters:
(a) the rules governing the trading or
transfer of tradeable water rights;
(b) the terms on which tradeable water
rights are traded or transferred;
(c) the processes by which tradeable
water rights are traded or transferred;
(d) the imposition or removal of
restrictions on, and barriers to, the trading or transfer of tradeable water
rights;
(e) restrictions on taking or using
water from a water resource as a result of the trading or transfer of tradeable
water rights in relation to that water resource;
(f) the manner in which particular
kinds of trading or transfer of tradeable water rights is conducted;
(g) the specification of areas within
which particular tradeable water rights may be traded or transferred;
(h) the availability of information to
enable the trading or transfer of tradeable water rights;
(i) the reporting of the trading or
transfer of tradeable water rights;
(j) any matter that was dealt with
in:
(i) Schedule E to the MDB Agreement
(other than paragraph 15(3)(c) of that Schedule); or
(ii) the Protocols to the
MDB Agreement made under Schedule E to that Agreement (other than the Protocol
on Access and Exit Fees);
immediately before the commencement
of this Part.
(2) Without limiting paragraph (1)(d),
the water trading rules may:
(a) prohibit some types of
restrictions on, or barriers to, the trading or transfer of tradeable water
rights; and
(b) impose or allow other types of
restrictions on, or barriers to, the trading or transfer of tradeable water
rights.
(3) Without limiting paragraph (1)(h) or
(i), the water trading rules may provide for the use of registers to provide
information about the trading or transfer of tradeable water rights.
(4) Without limiting subsection (1),
particular water trading rules may be limited to one or more of the following:
(a) particular kinds of trading or
transfer (for example, exchange rate trade or tagged trade); or
(b) the trading or transfer or particular
kinds of tradeable water rights; or
(c) the trading or transfer of
tradeable water rights in relation to particular water resources.
(5) Without limiting subsection (1), the
water trading rules may provide that a person who suffers loss or damage as a
result of conduct of another person that contravenes the water trading rules
may recover the amount of the loss or damage by action against that other
person or against any person involved in the contravention.
27
Basin Plan to be published on Authority’s website
(1) The Authority must publish on its website
a copy of the Basin Plan that is in effect.
(2) The Basin Plan published under subsection (1)
is to be the Plan as amended from time to time.
(3) If the Basin Plan is amended, the
Authority must also publish on its website a copy of the Basin Plan as in force
immediately before the amendment and indicate on the website the period for
which that version of the Basin Plan was in force.
Subdivision C—Environmental management
28
Environmental watering plan
(1) The purposes of the environmental
watering plan are:
(a) to safeguard existing
environmental water; and
(b) to plan for the recovery of
additional environmental water; and
(c) to coordinate the management of:
(i) existing environmental
water; and
(ii) the additional
environmental water that is recovered;
in order to:
(d) protect and restore the wetlands
and other environmental assets of the Murray‑Darling Basin; and
(e) protect biodiversity dependent on
the Basin water resources and achieve other environmental outcomes for the
Murray‑Darling Basin.
(2) The environmental watering plan must
specify:
(a) the overall environmental
objectives for the water‑dependent ecosystems of the Murray‑Darling
Basin; and
(b) targets by which to measure progress
towards achieving the environmental objectives specified in accordance with paragraph (a);
and
(c) an environmental management
framework for planned environmental water and held environmental water; and
(d) the methods to be used to identify
environmental assets in the Murray‑Darling Basin that will require
environmental watering; and
(e) the principles to be applied, and
methods to be used, to determine the priorities for applying environmental
water (including applying that water to environmental assets that are
identified using the methods specified under paragraph (d)); and
(f) the principles to be applied in environmental
watering.
(3) Without limiting paragraph (2)(b),
the environmental watering plan may specify targets for one or more of the
following:
(a) water resource health;
(b) water flows;
(c) water pressure;
(d) water levels.
The targets may relate to the Basin water resources as a
whole or to particular Basin water resources.
(4) In preparing the environmental watering
plan, the Authority must have regard to any other programs for water recovery
and environmental watering in the Murray‑Darling Basin.
29
Authority to consult holders and managers of environmental water in
implementing environmental watering plan
The Authority must, in implementing the
environmental watering plan, consult:
(a) holders of held environmental
water; and
(b) owners of environmental assets;
and
(c) managers of planned environmental
water;
in order to develop periodic environmental watering
schedules.
30
Environmental watering schedules
(1) An environmental watering schedule
developed for the purposes of the environmental watering plan must identify
environmental watering priorities for that schedule.
(2) The priorities must be consistent with the
environmental watering plan.
31
Authority to coordinate delivery of environmental water
The Authority may coordinate the
delivery of environmental water in accordance with the environmental watering
schedules developed for the purposes of the environmental watering plan.
32
Authority to identify and account for held environmental water
The Authority must identify and account
for held environmental water in the Murray‑Darling Basin for each
financial year.
Subdivision D—Effect of Basin Plan
33
Basin Plan is a legislative instrument
(1) The Basin Plan:
(a) is a legislative instrument; and
(b) is taken to be made by the
Minister on the day on which the Minister adopts the Basin Plan under section 44.
(2) An amendment of the Basin Plan adopted by
the Minister under section 48:
(a) is a legislative instrument; and
(b) is taken to be made by the
Minister on the day on which the Minister adopts the amendment under that
section.
(3) An amendment of the Basin Plan by the
Authority under regulations made for the purposes of section 49 is a
legislative instrument.
34
Effect of Basin Plan on Authority and other agencies of the Commonwealth
(1) The Authority, and the other agencies of
the Commonwealth, must perform their functions, and exercise their powers,
consistently with, and in a manner that gives effect to, the Basin Plan.
(2) To avoid doubt, subsection (1) does
not apply to the Authority’s or the Minister’s functions and powers under this
Division.
(3) Subsection (1) has effect subject to
regulations made for the purposes of section 38.
35
Effect of Basin Plan on other agencies and persons
(1) The Murray‑Darling Basin Commission,
an agency of a Basin State, an operating authority, an infrastructure operator
or the holder of a water access right must not:
(a) do an act in relation to Basin
water resources if the act is inconsistent with the Basin Plan; or
(b) fail to do an act in relation to
Basin water resources if the failure to do that act is inconsistent with the
Basin Plan.
(2) Subsection (1) applies to an act of
an agency of a Basin State only if the act is one that relates to the use or
management of the Basin water resources.
(3) Subsection (1) has effect subject to
regulations made for the purposes of section 38.
36
Constitutional operation of section 35 (general)
(1) Section 35 imposes an obligation to
the extent to which imposing the obligation gives effect to a relevant
international agreement.
(2) Section 35 imposes an obligation to
the extent to which the obligation is imposed:
(a) on a constitutional corporation;
or
(b) in relation to conduct that
affects the activities of a constitutional corporation.
(3) Section 35 imposes an obligation to
the extent to which the obligation is imposed in relation to conduct that takes
place in the course of trade or commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory.
Note: This subsection is of particular relevance to
the provisions of the Basin Plan that deal with the trading or transfer of
tradeable water rights.
(4) Section 35 imposes an obligation to
the extent to which the obligation is imposed in relation to conduct that takes
place in a Territory.
(5) Section 35 imposes an obligation to
the extent to which the obligation is imposed:
(a) on an agency of a State that is a
referring State; or
(b) in relation to conduct that takes
place in a referring State; or
(c) in relation to conduct that has an
effect in a referring State.
(6) Subsections (1), (2), (3), (4) and
(5):
(a) have effect independently of each
other; and
(b) do not limit section 37; and
(c) do not limit the operation (if
any) that section 35 validly has apart from this section.
(7) In this section:
conduct includes an act or omission.
37
Constitutional operation of section 35 (water trading rules)
(1) This section deals with the provisions of
the Basin Plan to the extent to which they deal with the trading or transfer of
a tradable water right in relation to Basin water resources.
Note: See item 12 of the table in subsection 22(1).
(2) Section 35 imposes obligations in
relation to the provisions if at least one of the parties to the trading or the
transfer is a constitutional corporation.
(3) Section 35 imposes obligations in
relation to the provisions if the trading or transfer takes place in the course
of trade and commerce:
(a) between the States; or
(b) between a State and a Territory.
(4) Section 35 imposes obligations in
relation to the provisions if:
(a) the trading or transfer takes
place in a Territory; or
(b) the trading or transfer relates to
tradeable water rights in relation to a water resource in a Territory.
(5) Section 35 imposes obligations in
relation to the provisions if at least one element of the trading or transfer
takes place using a postal, telegraphic, telephonic or other like service
(within the meaning of paragraph 51(v) of the Constitution).
(6) Section 35 imposes obligations in
relation to the provisions if:
(a) the trading or transfer takes
place in a referring State; or
(b) the trading or transfer has an
effect in a referring State; or
(c) the trading or transfer relates to
tradeable water rights in relation to a water resource in a referring State.
(7) Subsections (2), (3), (4), (5) and
(6):
(a) have effect independently of each
other; and
(b) do not limit section 36; and
(c) do not limit the operation (if
any) that section 35 validly has apart from this section.
38
Regulations may provide for exceptions
(1) Without limiting section 18, the
regulations may provide that subsections 34(1) and 35(1) do not apply to the
activities specified in the regulations.
(2) Without limiting subsection (1), the
regulations:
(a) may provide that subsections 34(1)
and 35(1) do not apply to a particular activity only if the conditions specified
in the regulations are satisfied; and
(b) may provide that subsections 34(1)
and 35(1) do not apply to a particular activity only for the period specified
in the regulations.
39
Obligations under both Basin Plan and water resource plans
(1) If:
(a) the Basin Plan provides for
obligations in relation to a particular matter; and
(b) the Basin Plan also provides that
water resource plans must impose obligations of the same, or a similar, kind in
relation to that matter;
the obligations referred to in paragraph (a) are
disregarded for the purposes of applying sections 34 and 35.
(2) To avoid doubt, subsection (1)
applies even if a particular water resource plan was accredited under section 63
having regard to a version of the Basin Plan that did not include the
obligations referred to in paragraph (1)(a).
40
Effect on State laws
Without limiting section 15, if the
Basin Plan provides for a maximum quantity of water that may be taken from the
water resources of a particular water resource plan area, it is not intended to
exclude or limit the concurrent operation of a State law that provides for the
same or a lower maximum quantity of water that may be taken from those water
resources.
Subdivision E—Procedure for making Basin Plan
41
Authority to prepare Basin Plan and give to Minister for adoption
The Authority must, as soon as
practicable after the commencement of this Part, prepare a Basin Plan and give
it to the Minister for adoption.
42
Consultations by Authority in preparing Basin Plan
(1) The Authority must consult with:
(a) the Basin States; and
(b) the Basin Officials Committee; and
(c) the Basin Community Committee;
in preparing the Basin Plan.
(2) In preparing the rules referred to in
item 12 of the table in subsection 22(1), the Authority must obtain, and
have regard to, the advice of the ACCC.
(3) In preparing the Basin Plan, the
Authority may undertake such other consultation, and publish such information
to facilitate consultation, as it considers appropriate.
43
Authority to seek submissions on proposed Basin Plan
(1) This section applies once the Authority
has prepared a proposed Basin Plan.
(2) The Authority must prepare a plain
English summary of the proposed Basin Plan (including an outline of the
scientific knowledge and socio‑economic analysis on which the proposed
Basin Plan is based).
(3) Without limiting subsection 42(1), the
Authority must:
(a) give a copy of the proposed Basin
Plan (and the summary) to the relevant State Minister for each of the Basin
States; and
(b) invite the Basin State to make
submissions to the Authority on the proposed Basin Plan; and
(c) allow the Basin State at least 16
weeks from when the invitation is given to make submissions to the Authority on
the proposed Basin Plan.
(4) The Authority must:
(a) publish an invitation to members
of the public to make submissions to the Authority on the proposed Basin Plan;
and
(b) allow at least 16 weeks from the
start of the consultation period for submissions on the proposed Basin Plan.
(5) The invitation under paragraph (4)(a)
must be published:
(a) in the Gazette; and
(b) in a newspaper circulating
generally in each Basin State; and
(c) on the Authority’s website.
The consultation period starts when the
invitation is published in the Gazette.
(6) The invitation under paragraph (4)(a)
must:
(a) specify how a person may obtain a
copy of the proposed Basin Plan (and the summary); and
(b) specify a physical address, and an
email address, to which a person may send submissions on the proposed Basin
Plan to the Authority; and
(c) specify the date by which
submissions must be received by the Authority; and
(d) indicate that submissions that a
person makes to the Authority on the proposed Basin Plan will be published on
the Authority’s website unless the person specifically requests the Authority
to treat the submissions (or a particular part of the submissions)
confidentially.
(7) The Authority must make the proposed
Basin Plan (and the summary) available on its website.
(8) The Authority must publish on its website
the submissions it receives on the proposed Basin Plan in response to the
invitations issued under subsections (3) and (4).
(9) Subsection (8) does not apply to the
submissions (or a particular part of the submissions) that a person makes to
the Authority if the person requests the Authority to treat the submissions (or
that part of the submissions) confidentially.
Note: See paragraph (6)(d).
(10) The Authority:
(a) must consider any submissions it
receives in response to the invitations issued under subsections (3) and
(4); and
(b) may alter the Basin Plan as a
result of its consideration of those submissions.
(11) The Authority must:
(a) prepare a document that:
(i) gives a broad outline
of any changes that the Authority makes to the proposed Basin Plan after the
start of the consultation period; and
(ii) summarises any
submissions it received in response to the invitations issued under subsections (3)
and (4), how it addressed those submissions and any alterations it has made as
a result of its consideration of those submissions; and
(b) give a copy of the document to the
Minister when the Authority gives the Basin Plan to the Minister for adoption;
and
(c) publish a copy of the document on
its website.
44
Minister may adopt Basin Plan
(1) Within 60 days after the Authority gives
the Minister the Basin Plan, the Minister must:
(a) consider the Basin Plan; and
(b) either:
(i) adopt, in writing, the
Basin Plan; or
(ii) give the Basin Plan
back to the Authority with suggestions for consideration by the Authority.
(2) If the Minister gives the Basin Plan back
to the Authority with suggestions, the Authority must:
(a) consider the suggestions; and
(b) undertake such consultations in
relation to the suggestions as the Authority considers necessary or
appropriate; and
(c) give the Minister either:
(i) an identical version
of the Basin Plan; or
(ii) an altered version of
the Basin Plan;
together with the Authority’s
views on the Minister’s suggestions; and
(d) prepare a document that
summarises:
(i) any submissions it
received in response to the consultations referred to in paragraph (b);
and
(ii) how it addressed those
submissions; and
(iii) the extent (if any) to
which its consideration of those submissions has affected the version or views
given to the Minister under paragraph (c); and
(e) publish on its website a copy of
the document prepared under paragraph (d).
(3) Within 30 days after the Authority gives
the Minister a version of the Basin Plan under subsection (2), the
Minister:
(a) must consider that version of the
Basin Plan and the views given to the Minister under subsection (2); and
(b) must either:
(i) adopt, in writing,
that version of the Basin Plan; or
(ii) direct the Authority,
in writing, to make modifications to that version of the Basin Plan and give it
to the Minister for adoption.
(4) A direction under subparagraph (3)(b)(ii)
is not a legislative instrument.
(5) The Minister must not give a direction
under subparagraph (3)(b)(ii) in relation to:
(a) any aspect of the Basin Plan that
is of a factual or scientific nature; or
(b) without limiting paragraph (a),
any of the matters referred to in:
(i) items 1, 2, 3 or 8
of the table in subsection 22(1); or
(ii) subsection 75(1); or
(iii) subsection 81(2) or
(3).
(6) If the Minister gives a direction under subparagraph (3)(b)(ii):
(a) the Authority must comply with the
direction; and
(b) the Minister must adopt, in
writing, the Basin Plan given to the Minister in compliance with the direction.
(7) When the Basin Plan is laid before a
House of the Parliament under the Legislative Instruments Act 2003, the
Minister must also lay before that House a document that sets out:
(a) any direction the Minister gave
under subparagraph (3)(b)(ii) in relation to the Basin Plan; and
(b) the Minister’s reasons for giving
that direction.
Subdivision F—Amendment of Basin Plan
45
Authority may prepare amendment of Basin Plan
The Authority may prepare an amendment
of the Basin Plan and give it to the Minister for adoption.
46
Consultations by Authority in preparing amendment of Basin Plan
(1) The Authority must consult with:
(a) the Basin States; and
(b) the Basin Officials Committee; and
(c) the Basin Community Committee;
in preparing an amendment of the Basin Plan.
(2) In preparing an amendment of the rules
referred to in item 12 of the table in subsection 22(1), the Authority
must obtain, and have regard to, the advice of the ACCC.
(3) In preparing an amendment of the Basin
Plan, the Authority may undertake such other consultation, and publish such
information to facilitate consultation, as it thinks appropriate.
47
Authority to seek submissions on proposed amendment of Basin Plan
(1) This section applies once the Authority
has prepared a proposed amendment of the Basin Plan.
(2) The Authority must prepare a plain
English summary of the effect of the proposed amendment (including an outline
of the scientific knowledge and socio‑economic analysis on which the
proposed amendment is based).
(3) Without limiting subsection 46(1), the
Authority must:
(a) give a copy of the proposed
amendment of the Basin Plan (and the summary) to the relevant State Minister
for each of the Basin States; and
(b) invite the Basin State to make
submissions to the Authority on the proposed amendment; and
(c) allow the Basin State at least 8
weeks from when the invitation is given to make submissions to the Authority on
the proposed amendment.
(4) The Authority must:
(a) publish an invitation to members
of the public to make submissions to the Authority on the proposed amendment of
the Basin Plan; and
(b) allow at least 8 weeks from the
start of the consultation period for submissions to be made to the Authority on
the proposed amendment.
(5) The invitation under paragraph (4)(a)
must be published:
(a) in the Gazette; and
(b) in a newspaper circulating
generally in each Basin State; and
(c) on the Authority’s website.
The consultation period starts when the
invitation is published in the Gazette.
(6) The invitation under paragraph (4)(a)
must:
(a) specify how a person may obtain a
copy of the proposed amendment (and the summary); and
(b) specify a physical address, and an
email address, to which a person may send submissions on the proposed amendment
to the Authority; and
(c) specify the date by which
submissions must be received by the Authority; and
(d) indicate that submissions that a
person makes to the Authority on the proposed amendment will be published on
the Authority’s website unless the person specifically requests the Authority
to treat the submissions (or a particular part of the submissions)
confidentially.
(7) The Authority must make the proposed
amendment of the Basin Plan (and the summary) available on its website.
(8) The Authority must publish on its website
the submissions it receives on the proposed amendment of the Basin Plan in
response to the invitations issued under subsections (3) and (4).
(9) Subsection (8) does not apply to the
submissions (or a part of the submissions) that a person makes to the Authority
if the person requests the Authority to treat the submissions (or that part of
the submissions) confidentially.
Note: See paragraph (6)(d).
(10) The Authority:
(a) must consider any submissions it
receives in response to the invitations issued under subsections (3) and
(4); and
(b) may alter the amendment of the
Basin Plan as a result of its consideration of those submissions.
(11) The Authority must:
(a) prepare a document that gives a
broad outline of any changes that the Authority makes to the proposed amendment
of the Basin Plan after the start of the consultation period; and
(b) give a copy of the document to the
Minister when the Authority gives the amendment to the Minister for adoption;
and
(c) publish a copy of the document on
its website.
48
Minister may adopt amendment of Basin Plan
(1) Within 60 days after the Authority gives
the Minister an amendment of the Basin Plan, the Minister must:
(a) consider the amendment; and
(b) either:
(i) adopt, in writing, the
amendment; or
(ii) give the amendment
back to the Authority with suggestions for consideration by the Authority.
(2) If the Minister gives the amendment back
to the Authority with suggestions, the Authority must:
(a) consider the suggestions; and
(b) undertake such consultations in
relation to the suggestions as the Authority considers necessary or
appropriate; and
(c) give the Minister either:
(i) an identical version
of the amendment; or
(ii) an altered version of
the amendment;
together with the Authority’s
views on the Minister’s suggestions.
(3) As soon as practicable after the
Authority gives the Minister a version of the amendment under subsection (2),
the Minister:
(a) must consider that version of the
amendment and the views given to the Minister under subsection (2); and
(b) must either:
(i) adopt, in writing,
that version of the amendment; or
(ii) direct the Authority,
in writing, to make modifications to that version of the amendment and give it
to the Minister for adoption.
(4) A direction under subparagraph (3)(b)(ii)
is not a legislative instrument.
(5) The Minister must not give a direction
under subparagraph (3)(b)(ii) in relation to:
(a) any aspect of the Basin Plan that
is of a factual or scientific nature; or
(b) without limiting paragraph (a),
any of the matters referred to in:
(i) items 1, 2, 3 or 8
of the table in subsection 22(1); or
(ii) subsection 75(1).
(6) If the Minister gives a direction under subparagraph (3)(b)(ii):
(a) the Authority must comply with the
direction; and
(b) the Minister must adopt, in
writing, the amendment given to the Minister in compliance with the direction.
(7) When the amendment is laid before a House
of the Parliament under the Legislative Instruments Act 2003, the
Minister must also lay before that House a document that sets out:
(a) any direction the Minister gave
under subparagraph (3)(b)(ii) in relation to the amendment; and
(b) the Minister’s reasons for giving
that direction.
49
Minor or non‑substantive amendments of Basin Plan
(1) Despite the other provisions of this
Division, the regulations may:
(a) provide that the Authority may
make a specified kind of minor, or non‑substantive, amendment of the
Basin Plan; and
(b) provide for the process of making
those amendments.
(2) To avoid doubt, sections 46, 47 and 48
do not apply to amendments of the Basin Plan made in accordance with the
regulations made for the purposes of subsection (1).
Subdivision G—Review of Basin Plan
50
Review of Basin Plan—general
Regular 10 yearly reviews
(1) The Authority must:
(a) review the Basin Plan during the
tenth year of the period that starts when the Basin Plan takes effect if the
Authority has not reviewed the Basin Plan under subsection (2), and given
the Minister a report of that review, before the start of that year; and
(b) review the Basin Plan during the
tenth year of the period (the post‑report period) that
starts when the Authority gives the Minister a report of a review of the Basin
Plan under paragraph (5)(b) if the Authority has not reviewed the Basin
Plan under subsection (2), and given the Minister a report of that review,
after the start of the post‑report period and before the start of that
year.
Review requested by Minister or Basin States
(2) The Authority must review the Basin Plan
if:
(a) the Minister requests the
Authority to do so; or
(b) all of the Basin States request
the Authority to do so.
(3) The Minister or a Basin State may make a
request under subsection (2) only if satisfied that:
(a) the outcomes specified for the
Basin Plan are not being achieved; or
(b) the objectives specified for the
Basin Plan are no longer appropriate for Basin water resources or for one or
more water resource plan areas.
(4) A request under subsection (2) must
not be made within the first 5 years after the Basin Plan takes effect or
within 5 years after the Authority gives the Minister the report of the most
recent review of the Basin Plan.
Report of review
(5) The Authority must:
(a) prepare a report of the results of
the review under subsection (1) or (2); and
(b) give the report to the Minister;
and
(c) give a copy of the report to the
relevant State Minister for each Basin State; and
(d) make a copy of the report
available on the Authority’s website.
51
Authority to prepare discussion paper and seek submissions
(1) This section applies if the Authority
undertakes a review of the Basin Plan.
(2) The Authority must consult with:
(a) the Basin States; and
(b) the Basin Officials Committee; and
(c) the Basin Community Committee;
in preparing a discussion paper in relation to the review.
(3) In preparing the discussion paper, the
Authority may undertake such other consultation as it considers appropriate.
(4) Without limiting subsection (3), the
discussion paper must set out the issues to be addressed in the review.
(5) The Authority must make the discussion
paper available on its website.
(6) The Authority must:
(a) give a copy of the discussion
paper to the relevant State Minister for each of the Basin States; and
(b) invite the Basin State to make
submissions to the Authority on the review; and
(c) allow the Basin State at least 12
weeks from when the invitation is given to make submissions to the Authority on
the review.
(7) The Authority must:
(a) publish an invitation to members
of the public to make submissions to the Authority on the review; and
(b) allow at least 12 weeks from the
start of the consultation period for submissions to be made to the Authority on
the review.
(8) The invitation under paragraph (7)(a)
must be published:
(a) in the Gazette; and
(b) in a newspaper circulating
generally in each Basin State; and
(c) on the Authority’s website.
The consultation period starts when the
invitation is published in the Gazette.
(9) The invitation under paragraph (7)(a)
must:
(a) specify how a person may obtain a
copy of the discussion paper; and
(b) specify a physical address, and an
email address, to which a person may send submissions on the review to the
Authority; and
(c) specify the date by which submissions
must be received by the Authority; and
(d) indicate that submissions that a
person makes to the Authority on the review will be published on the Authority’s
website unless the person specifically requests the Authority to treat the
submissions (or a particular part of the submissions) confidentially.
(10) Without limiting subsection (4), the
Authority must make the discussion paper available on its website.
(11) The Authority must publish on its website
the submissions it receives on the review in response to the invitations issued
under subsections (6) and (7).
(12) Subsection (11) does not apply to the
submissions (or a part of the submissions) that a person makes to the Authority
if the person requests the Authority to treat the submissions (or that part of
the submissions) confidentially.
Note: See paragraph (9)(d).
(13) The Authority must consider any
submissions it receives in response to the invitations issued under subsections (6)
and (7).
52
Review may lead to amendment of Basin Plan
If, after having reviewed the Basin Plan
under section 50, the Authority is satisfied that the Basin Plan should be
amended, the Authority may, under section 45, prepare an amendment of the
Basin Plan and give it to the Minister for adoption.
Note: Subdivision F applies to the preparation and
making of the amendment of the Basin Plan.
Division 2—Water resource plans for particular water resource plan areas
Subdivision A—Introduction
53
Simplified outline
(1) This section sets out a simplified
outline of this Division.
(2) There is to be a water resource plan for
each water resource plan area.
(3) The Minister may accredit a water
resource plan that is prepared by a Basin State for the water resource plan
area.
(4) Alternatively, the Minister may adopt a water
resource plan that is prepared by the Authority for the water resource plan
area.
Note: Division 3 provides for the special
procedures to be followed if the Minister is to exercise the power referred to
in this subsection.
Subdivision B—Water resource plans
54
Water resource plans for water resource plan areas
(1) There is to be a water resource plan for
each water resource plan area.
Note: The water resource plan areas are identified
in the Basin Plan (see item 2 of the table in subsection 22(1)).
(2) The water resource plan must be either:
(a) one that the Minister accredits
under section 63; or
(b) one that the Minister adopts under
section 69.
(3) A water resource plan that the Minister
accredits under section 63:
(a) does not take effect for the
purposes of this Act before the Minister accredits the plan under that section;
and
(b) ceases to have effect for the
purposes of this Act if the Minister adopts a water resource plan for the water
resource plan area under section 69.
55
Content of water resource plan
(1) A water resource plan for a water
resource plan area must provide for the management of the water resources of the
water resource plan area.
(2) The water resource plan must be
consistent with the relevant Basin Plan, including:
(a) the requirements for water
resource plans; and
(b) any long‑term annual
diversion limit for the water resources of the water resource plan area (or for
a particular part of those water resources).
The relevant Basin Plan for the water
resource plan is the version of the Basin Plan that the Minister applies in
relation to the water resource plan under subsection 56(2).
(3) In determining whether the water resource
plan is consistent with the relevant Basin Plan, regard must be had to the
legislative framework within which the water resource plan operates.
56
General basis for accrediting and making water resource plans
(1) In exercising their powers, and
performing their functions, under this Division in relation to a water resource
plan for a water resource plan area, the Authority and the Minister must have
regard to:
(a) the Basin Plan; and
(b) the extent to which the water
resource plan is consistent with the Basin Plan.
(2) For the purposes of applying subsection (1)
to a proposed water resource plan given to the Minister under Subdivision D,
the Basin Plan that is to be applied is the Basin Plan as in effect:
(a) when the Basin Plan takes effect
if the proposed water resource plan is given to the Minister under subsection 63(3)
within 2 years after the Basin Plan first takes effect; or
(b) 2 years before the proposed water
resource plan is given to the Minister under subsection 63(3) if the proposed
water resource plan is given to the Minister more than 2 years after the Basin
Plan first takes effect.
Otherwise the Basin Plan that is to be applied is the
Basin Plan as in effect when the power is exercised or the function is
performed.
(3) In exercising a power, or performing a
function, under this Division in relation to a water resource plan for a water
resource plan area, the Minister must have regard to the advice that the
Authority gives the Minister in relation to the exercise of that power or the
performance of that function.
Subdivision C—Effect of a water resource plan
57
Water resource plan adopted under section 69 is a legislative instrument
A water resource plan adopted under
section 69:
(a) is a legislative instrument; and
(b) is taken to be made by the
Minister on the day on which the Minister adopts the plan under section 69.
58
Effect of water resource plan on Authority and other agencies of the
Commonwealth
(1) The Authority, and any other agency of
the Commonwealth, must perform its functions, and exercise its powers,
consistently with, and in a manner that gives effect to, a water resource plan
for a water resource plan area.
(2) To avoid doubt, subsection (1) does
not apply to the Authority’s or the Minister’s functions and powers under this
Division or under Division 1.
(3) Subsection (1) has effect subject to
regulations made for the purposes of section 62.
59
Effect of water resource plan on other agencies and bodies
(1) The Murray‑Darling Basin
Commission, an agency of a Basin State, an operating authority, an
infrastructure operator or the holder of a water access right must not:
(a) do an act in relation to water
resources of a water resource plan area if the act is inconsistent with the
water resource plan for the area; or
(b) fail to do an act in relation to
water resources of a water resource plan area if the failure to do that act is
inconsistent with the water resource plan for the area.
(2) Subsection (1) applies to an act of
an agency of a Basin State only if the act is one that relates to the use or
management of the Basin water resources.
(3) Subsection (1) has effect subject to
regulations made for the purposes of section 62.
60
Constitutional operation of section 59 (general)
(1) Section 59 imposes an obligation to
the extent to which imposing the obligation gives effect to a relevant
international agreement.
(2) Section 59 imposes an obligation to
the extent to which the obligation is imposed:
(a) on a constitutional corporation;
or
(b) in relation to conduct that
affects the activities of a constitutional corporation.
(3) Section 59 imposes an obligation to
the extent to which the obligation is imposed in relation to conduct that takes
place in the course of trade or commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory.
Note: This subsection is of particular relevance to
the provisions of the water resource plan that deal with the trading or
transfer of tradeable water rights.
(4) Section 59 imposes an obligation to
the extent to which the obligation is imposed in relation to conduct that takes
place in a Territory.
(5) Section 59
imposes an obligation to the extent to which the obligation is imposed:
(a) on an agency of a State that is a
referring State; or
(b) in relation to conduct that takes
place in a referring State; or
(c) in relation to conduct that has an
effect in a referring State.
(6) Subsections (1), (2), (3), (4) and
(5):
(a) have effect independently of each
other; and
(b) do not limit section 61; and
(c) do not limit the operation (if
any) that section 59 validly has apart from this section.
(7) In this section:
conduct includes an act or omission.
61
Constitutional operation of section 59 (water trading rules)
(1) This section deals with the provisions of
a water resource plan to the extent to which they deal with the trading or
transfer of a tradable water right in relation to Basin water resources.
(2) Section 59 imposes obligations in
relation to the provisions if at least one of the parties to the trading or the
transfer is a constitutional corporation.
(3) Section 59 imposes obligations in
relation to the provisions if the trading or transfer takes place in the course
of trade and commerce:
(a) between the States; or
(b) between a State and a Territory.
(4) Section 59 imposes obligations in
relation to the provisions if:
(a) the trading or transfer takes
place in a Territory; or
(b) the trading or transfer relates to
tradeable water rights in relation to a water resource in a Territory.
(5) Section 59 imposes obligations in
relation to the provisions if at least one element of the trading or transfer
takes place using a postal, telegraphic, telephonic or other like service
(within the meaning of paragraph 51(v) of the Constitution).
(6) Section 59 imposes obligations in
relation to the provisions if:
(a) the trading or transfer takes
place in a referring State; or
(b) the trading or transfer has an
effect in a referring State; or
(c) the trading or transfer relates to
tradeable water rights in relation to a water resource in a referring State.
(7) Subsections (2), (3), (4), (5) and
(6):
(a) have effect independently of each
other; and
(b) do not limit section 60; and
(c) do not limit the operation (if
any) that section 59 validly has apart from this section.
62
Regulations may provide for exceptions
(1) Without limiting section 18, the
regulations may provide that subsections 58(1) and 59(1) do not apply to the
activities specified in the regulations.
(2) Without limiting subsection (1), the
regulations:
(a) may provide that subsections 58(1)
and 59(1) do not apply to a particular activity only if the conditions
specified in the regulations are satisfied; and
(b) may provide that subsections 58(1)
and 59(1) do not apply to a particular activity only for the period specified
in the regulations.
Subdivision D—Accrediting water resource plans prepared by Basin States
63
Accrediting water resource plans prepared by Basin States
(1) A Basin State may:
(a) give the Authority a proposed
water resource plan for a water resource plan area that is located within the
Basin State; and
(b) ask the Authority to give the
proposed water resource plan to the Minister for accreditation.
The proposed water resource plan may be constituted by 2
or more instruments.
(2) If the water resource plan area is
adjacent to a water resource plan area located in another Basin State, the
proposed water resource plan must be prepared in consultation with that other
Basin State.
(3) The Authority must:
(a) consider the proposed water
resource plan; and
(b) prepare recommendations for the
Minister on whether the proposed water plan should be accredited; and
(c) give the Minister the proposed
water resource plan and the recommendations.
(4) The Authority must not recommend that the
Minister not accredit the proposed water plan unless the Authority:
(a) gives the Basin State written
notice of the grounds on which the Authority considers that it should recommend
that the Minister not accredit the plan; and
(b) gives the Basin State the
opportunity to make submissions to the Authority, within the period of 14 days
after the notice referred to in paragraph (a) is given, in relation to the
grounds set out in the notice; and
(c) has regard to the submissions made
by the Basin State within that period in deciding what recommendations to make
to the Minister in relation to the proposed water plan.
The Authority may, in writing, extend or further extend
the period referred to in paragraph (b).
(5) If the Authority gives the Minister a
proposed water resource plan and recommendations under subsection (3), the
Minister:
(a) must consider the proposed water
resource plan and the recommendations; and
(b) may either:
(i) accredit the plan; or
(ii) not accredit the plan.
(6) The Minister must accredit the plan if
the Minister is satisfied that the plan is consistent with the relevant Basin
Plan. The relevant Basin Plan for the water resource plan is the
version of the Basin Plan that the Minister applies in relation to the water
resource plan under subsection 56(2).
(7) The decision by the Minister to accredit,
or not to accredit, the plan:
(a) must be made in writing; and
(b) is a legislative instrument, but
section 42 (disallowance) of the Legislative Instruments Act 2003
does not apply to the decision.
(8) If:
(a) the Minister decides to accredit,
or not to accredit, a proposed water resource plan under subsection (5);
and
(b) that decision does not follow a
recommendation that the Authority gives the Minister under subsection (3);
the Minister must, when the Minister’s decision is laid
before a House of the Parliament under the Legislative Instruments Act 2003,
cause a copy of a statement that sets out the Minister’s reasons for not
following the Authority’s recommendation to be laid before that House.
(9) The regulations may provide for:
(a) the time within which the steps
provided for in this section are to be taken; and
(b) the process to be followed in
taking the steps provided for in this section.
64
Duration of accreditation
(1) The accreditation of a water resource
plan under section 63 ceases to have effect at the end of the period of 10
years starting on the date on which the plan is accredited if the water
resource plan has not ceased to have effect before that time.
(2) The Minister may extend, or further
extend, the period for which the accreditation has effect. The extension or
further extension must be made in writing.
(3) An extension or further extension made
under subsection (2) is a legislative instrument, but section 42
(disallowance) of the Legislative Instruments Act 2003 does not apply to
the extension or further extension.
(4) The period for which the effect of the
accreditation is extended must not end later than the end of the period of 11
years starting on the day on which the plan is first accredited.
(5) An extension of a period under subsection (2)
cannot be made after the end of the period or the period as previously
extended.
65
Accrediting amendments of accredited water resource plans
(1) An amendment of a water resource plan
accredited under section 63 has no effect for the purposes of this Act
unless the amendment is accredited under this section or section 66.
(2) A Basin State may:
(a) give the Authority a proposed
amendment of a water resource plan that is accredited under section 63 for
a water resource plan area that is located within the Basin State; and
(b) ask the Authority to give the
proposed amendment to the Minister for accreditation.
(3) The Authority must:
(a) consider the proposed amendment;
and
(b) prepare recommendations for the
Minister on whether the proposed amendment should be accredited; and
(c) give the Minister the proposed
amendment and the recommendations.
(4) The Authority must not recommend that the
Minister not accredit the proposed amendment unless the Authority:
(a) gives the Basin State written
notice of the grounds on which the Authority considers that it should recommend
that the Minister not accredit the amendment; and
(b) gives the Basin State the
opportunity to make submissions to the Authority, within the period of 14 days
after the notice referred to in paragraph (a) is given, in relation to the
grounds set out in the notice; and
(c) has regard to the submissions made
by the Basin State within that period in deciding what recommendations to make
to the Minister in relation to the amendment.
The Authority may, in writing, extend or further extend
the period referred to in paragraph (b).
(5) If the Authority gives the Minister a
proposed amendment of a water resource plan and recommendations under subsection (4),
the Minister:
(a) must consider the amendment and
the recommendations; and
(b) may either:
(i) accredit the
amendment; or
(ii) not accredit the
amendment.
(6) The Minister must accredit the amendment
if the Minister is satisfied that the water resource plan, as amended, would be
consistent with the Basin Plan.
(7) The decision by the Minister to accredit,
or not to accredit, the amendment:
(a) must be made in writing; and
(b) is a legislative instrument, but
section 42 (disallowance) of the Legislative Instruments Act 2003
does not apply to the decision.
(8) If:
(a) the Minister decides to accredit,
or not to accredit, a proposed amendment of a water resource plan under subsection (5);
and
(b) that decision does not follow a
recommendation that the Authority gives the Minister under subsection (3);
the Minister must, when the Minister’s decision is laid
before a House of the Parliament under the Legislative Instruments Act 2003,
cause a copy of a statement that sets out the Minister’s reasons for not
following the Authority’s recommendation to be laid before that House.
(9) The regulations may provide for:
(a) the time within which the steps
provided for in this section are to be taken; and
(b) the process to be followed in
taking the steps provided for in this section.
66
Accrediting minor or non‑substantive amendments of accredited water
resource plans
(1) The regulations may provide that a
particular kind of minor, or non‑substantive, amendment of a water
resource plan accredited under section 63 is a kind of amendment to which
this section applies.
(2) If:
(a) a water resource plan accredited
under section 63 is amended; and
(b) the amendment is of a kind to
which this section applies; and
(c) the Basin State concerned notifies
the Authority within 14 days after the amendment is made;
the amendment is taken to have been accredited under
section 65 at the time when the notice referred to in paragraph (c)
is given to the Authority.
(3) The Authority may, in writing, extend or
further extend the period referred to in paragraph (2)(c).
67
Authority may assist Basin State to prepare water resource plan
The Authority may advise, or assist, a
Basin State in preparing a water resource plan, or an amendment of a water
resource plan, to be given to the Minister for accreditation under section 63
or 65.
Subdivision E—Water resource plans prepared by Authority and adopted by
Minister
68
Minister may request Authority to prepare water resource plan
(1) The Minister may request the Authority to
prepare a water resource plan for a water resource plan area if:
(a) subsection (2), (3), (4) or
(5) is satisfied; and
(b) the requirements of Division 3
are satisfied.
This subsection does not apply to a water resource plan
area if a transitional water resource plan is in effect in relation to the area
under Division 1 of Part 11.
(2) This subsection is satisfied if the Basin
State in which the area is located does not give the Authority a water resource
plan for the area under section 63 in accordance with the regulations made
for the purposes of subsection 63(9).
(3) This subsection is satisfied if:
(a) the Basin State in which the area
is located gives the Authority a water resource plan for the area under section 63;
and
(b) the Minister decides under
subsection 63(5) not to accredit the water resource plan because the water
resource plan is not consistent with the Basin Plan.
(4) This subsection is satisfied if:
(a) a water resource plan for the area
is accredited under section 63; and
(b) a review of the water resource
plan is undertaken under:
(i) a State water
management law; or
(ii) the water resource
plan itself; and
(c) the report of the review
recommends that the water resource plan be amended; and
(d) the Basin State in which the area
is located does not give the Authority an amendment of the water resource plan
under section 65 within a reasonable time after the recommendation is
made.
(5) This subsection is satisfied if:
(a) a water resource plan for the area
is accredited under section 63; and
(b) there is a review of the water
resource plan; and
(c) the report of the review
recommends that the water resource plan be amended; and
(d) the Basin State in which the area
is located gives the Authority an amendment of the water resource plan under
section 65; and
(e) the Minister decides under
subsection 65(5) not to accredit the amendment because the amendment is not
consistent with the Basin Plan.
(6) If the Minister requests the Authority to
prepare a water resource plan for a water resource plan area under subsection (1),
the Authority must:
(a) prepare a water resource plan for
the area in accordance with the process set out in the regulations; and
(b) give the water resource plan to
the Minister for adoption.
(7) In preparing the water resource plan, the
Authority must have regard to the requirements of the laws of the Basin State
in which the water resource plan area is located.
Note: Under section 109 of the Constitution,
any State laws that are inconsistent with the Basin Plan will be of no effect
to the extent of the inconsistency.
(8) If subsection (3) applies, the
Authority must incorporate the provisions of the water resource plan that the
Basin State gives the Authority under section 63 to the extent to which it
is possible to do so consistently with the Basin Plan.
(9) If subsection (5) applies, the
Authority must incorporate the provisions of:
(a) the existing water resource plan;
and
(b) the amendment that the Basin State
gives the Authority under section 65;
to the extent to which it is possible to do so
consistently with the Basin Plan.
(10) If the water resource plan area is
adjacent to a water resource plan area located in different Basin State, the
Authority must prepare the plan in consultation with that Basin State.
69
Minister may adopt water resource plan
(1) Within 60 days after the Authority gives
the Minister a water resource plan for a water resource plan area under
paragraph 68(2)(b), the Minister must:
(a) consider the water resource plan;
and
(b) either:
(i) adopt the water
resource plan; or
(ii) give the water
resource plan back to the Authority with suggestions for consideration by the
Authority.
(2) If the Minister gives the water resource
plan back to the Authority with suggestions, the Authority must:
(a) consider the suggestions; and
(b) undertake such consultations in
relation to the suggestions as the Authority considers necessary or
appropriate; and
(c) give the Minister either:
(i) an identical version
of the water resource plan; or
(ii) an altered version of
the water resource plan;
together with the Authority’s
views on the Minister’s suggestions; and
(d) prepare a document that
summarises:
(i) any submissions it
received in response to the consultations referred to in paragraph (b);
and
(ii) how it addressed those
submissions; and
(iii) the extent (if any) to
which its consideration of those submissions has affected the version or views
given to the Minister under paragraph (c).
(3) Within 30 days after the Authority gives
the Minister a version of the water resource plan under subsection (2),
the Minister must:
(a) consider that version of the water
resource plan and the views given to the Minister under subsection (2);
and
(b) either:
(i) adopt that version of
the water resource plan; or
(ii) direct the Authority,
in writing, to make modifications to that version of the water resource plan
and give it to the Minister for adoption.
(4) A direction under subparagraph (3)(b)(ii)
is not a legislative instrument.
(5) The Minister must not give a direction
under subparagraph (3)(b)(ii) in relation to any aspect of the water
resource plan that is of a factual or scientific nature.
(6) If the
Minister gives a direction under subparagraph (3)(b)(ii):
(a) the Authority must comply with the
direction; and
(b) the Minister must adopt the water
resource plan given to the Minister in compliance with the direction.
(7) When the water resource plan is laid
before a House of the Parliament under the Legislative Instruments Act 2003,
the Minister must also lay before that House a document that sets out:
(a) any direction the Minister gave
under subparagraph (3)(b)(ii) in relation to the water resource plan; and
(b) the Minister’s reasons for giving
that direction.
70
Duration of plan adopted under section 69
A water resource plan adopted under
section 69 has effect for the period specified in the water resource plan.
Subdivision F—Reporting obligations
71
Reporting obligations of Basin States
(1) A Basin State must, within 4 months after
the end of a water accounting period for a water resource plan area in the
Basin State give the Authority a written report that sets out the following:
(a) the quantity of water available from
the water resources of the water resource plan area during that water
accounting period;
(b) the quantity of water permitted to
be taken from the water resources of the water resource plan area during the
water accounting period;
(c) the quantity of water actually
taken from the water resources of the water resource plan area during the water
accounting period;
(d) details of the water allocations
made in relation to the water resources of that area in relation to that water accounting
period;
(e) details of any other decisions
made by, or under the law of, the Basin State, that permit the taking of water
from the water resources of that area during that water accounting period;
(f) details of the trading or
transfer of tradeable water rights in relation to the water resources of that
area during that water accounting period:
(i) within the area; and
(ii) into the area; and
(iii) from the area;
(g) an assessment of compliance with
any long‑term annual diversion limit for the water resources of the area,
or for a particular part of those water resources, in accordance with the
method specified in the Basin Plan;
(h) if there has been non‑compliance
with any long‑term annual diversion limit for the water resources of the
area, or for a particular part of those water resources—the actions that the
Basin State proposes to take to ensure that the limit is complied with in the
future.
(2) The Authority may, in writing, extend the
period within which the report must be given to the Authority.
Division 3—Procedures to be followed before taking step‑in action
72
Scope of Division
(1) This Division provides for the procedure
to be followed before the exercise of the power of the Minister to request the
Authority under section 68 to prepare a water resource plan for a water
resource plan area located in a Basin State.
(2) This power is the step‑in
power.
(3) The Basin State is the affected
Basin State.
73
Procedure to be followed before exercising step‑in power
Good faith negotiation
(1) The Minister must negotiate in good faith
with the affected Basin State, and any relevant agency of the affected Basin
State, with a view to dealing effectively with the circumstances without the
exercise of the step‑in power.
Preliminary notice
(2) Before the Minister exercises the step‑in
power in relation to particular circumstances, the Minister must give the
relevant State Minister for the affected Basin State a preliminary notice that:
(a) specifies the circumstances; and
(b) sets out the Minister’s reasons
for being satisfied that the circumstances give rise to the step‑in
power; and
(c) indicates that the Minister is
considering exercising the step‑in power; and
(d) indicates that the Minister is
willing to engage in a mediation process in relation to the circumstances; and
(e) requests the Basin State to notify
the Minister, in writing, within 2 weeks after the notice under this subsection
is given, whether the Basin State is also willing to engage in a mediation
process in relation to the circumstances.
Mediation
(3) If the affected Basin State indicates
that it is willing to engage in a mediation process in relation to the
circumstances, the mediator is to be:
(a) a person determined by agreement
between the Minister and the Basin State; or
(b) a person nominated by the
President of the Law Council of Australia if the Minister and the Basin State
do not agree on a person to be the mediator.
(4) The process for the mediation is to be:
(a) the process agreed by the Minister
and the affected Basin State; or
(b) the process determined by the
mediator if the Minister and the affected Basin State do not agree on the
process for the meditation.
(5) Representatives of the Minister must
attend any mediation sessions called by the mediator.
(6) The affected Basin State is to be taken
to have indicated that it is not willing to engage in a mediation process in
relation to the circumstances if it does not give the notice requested in paragraph (2)(e)
within the period of 2 weeks referred to in that paragraph.
Formal notice
(7) The Minister may give the relevant State
Minister for the affected Basin State a notice under subsection (8) if:
(a) the Basin State has indicated that
it is not willing to engage in a mediation process in relation to the
circumstances and the period of 1 month starting on the day on which the notice
was given under subsection (2) ends; or
(b) the Basin State has indicated that
it is willing to engage in a mediation process in relation to the circumstances
and the period of 2 months starting on the day on which the notice was given under
subsection (2) ends.
(8) The notice under this subsection is a
notice that:
(a) specifies the circumstances that,
in the Minister’s opinion, give rise to the step‑in power; and
(b) sets out the Minister’s reasons
for being satisfied that the circumstances give rise to the step‑in
power; and
(c) specifies the action or actions
that the Minister considers would deal with the circumstances without the
exercise of the step‑in power; and
(d) specifies the time within which
the action or actions should be taken; and
(e) indicates that the Minister will
consider exercising the step‑in power if the action or actions are not
taken within the time referred to in paragraph (d); and
(f) requests the affected Basin State
to respond to the notice within the period specified in the notice.
(9) The period specified under paragraph (8)(f)
must end at least 1 month after the notice under subsection (8) is given
to the affected Basin State.
(10) A copy of the notice under subsection (8)
must be given to the relevant State Ministers of each of the other Basin
States.
Affected Basin State response to formal notice
(11) The affected Basin State may respond to
the notice under subsection (8) within:
(a) the period specified under paragraph (8)(f);
or
(b) such longer period as the Minister
allows.
(12) In its response to the notice under subsection (8),
the affected Basin State may:
(a) raise any issues that the Basin
State considers appropriate; and
(b) draw attention to any facts or
matters in relation to the circumstances that the Basin State considers should
be taken into account; and
(c) draw attention to any mitigating
factors in relation to the circumstances; and
(d) propose a variation of, or an
alternative to, the action or actions specified under paragraph (8)(c).
Notice of intention to proceed to a decision
(13) If:
(a) the affected Basin State does not
respond under subsection (11); or
(b) the affected Basin State responds
under subsection (11) and the Minister, having considered the response,
intends to proceed to consider whether to exercise the step‑in power;
the Minister must give the Basin State a notice that:
(c) indicates that the Minister
intends to proceed to consider whether to exercise the step‑in power; and
(d) sets out the Minister’s reasons
for intending to do so.
Decision to exercise step‑in power
(14) The Minister may exercise the step‑in
power only if:
(a) the process provided for in subsections (2)
to (13), or that process as varied by agreement in writing between the Minister
and the affected Basin State, has been followed; and
(b) the period of 2 weeks starting on
the day on which the Minister gave the notice under subsection (13) has
ended; and
(c) the Minister has considered the
response (if any) of the affected Basin State under subsection (11); and
(d) the Minister is satisfied that:
(i) circumstances that
give rise to the step‑in power exist; and
(ii) the circumstances, if
not dealt with, will materially and adversely impact on the efficient or
effective implementation of the Basin Plan; and
(iii) the exercise of the
step‑in power would be an effective means for dealing with the
circumstances; and
(iv) there is no other
feasible and effective alternative way of dealing with the circumstances.
(15) If the Minister decides to exercise the
step‑in power, the Minister must set out, in the document by which the
step‑in power is exercised, when the exercise of the step‑in power
will end.
(16) Without limiting subsection (15), the
document may specify that the exercise of the step‑in power will end:
(a) at the end of a particular period
of time; or
(b) when a specified action is taken;
or
(c) when specified circumstances
exist; or
(d) when the Minister is satisfied
that specified conditions have been met.
(17) The extent, and duration, of the exercise
of the step‑in power must be limited to what is reasonable to deal with
the circumstances that give rise to the exercise of the step‑in power.
Notices not legislative instruments
(18) A notice under subsection (2), (8) or
(13) is not a legislative instrument.
Division 4—Allocation of risks in relation to reductions in water
availability
Subdivision A—Risks arising from reductions in diversion limits
74
Simplified outline
(1) This section provides a simplified
outline of this Subdivision.
(2) When the long‑term average
sustainable diversion limit for the water resources of a water resource plan
area (or for a particular part of those water resources) is reduced, the Basin
Plan identifies the Commonwealth’s share (if any) of the reduction.
Note 1: The Commonwealth’s share includes reductions
attributable to changes in Commonwealth Government policy and, for reductions
that occur on or after 1 January 2015, may also include some part of
reductions attributable to improvements in knowledge about the environmentally
sustainable level of take for the water resources of a water resource plan area.
Note 2: See section 75.
(3) The Commonwealth:
(a) endeavours to manage the impact of
the Commonwealth’s share of the reduction on the holders of water access
entitlements; and
(b) may take steps to ensure that the
holders of water access entitlements do not suffer a reduction in their water
allocations as a result of the Commonwealth’s share of the reduction.
Note: See section 76.
(4) If, despite the Commonwealth’s efforts,
the water allocation of a holder of a water access entitlement is reduced and
the reduction is reasonably attributable to the Commonwealth’s share of the
reduction in the long‑term average sustainable diversion limit, the
holder may be entitled to a payment under section 77.
75
Basin Plan to specify Commonwealth share of reduction in long‑term
average sustainable diversion limit
(1) If the long‑term average
sustainable diversion limit for the water resources of a water resource plan
area (or for a particular part of those water resources) is reduced, the Basin
Plan must specify:
(a) the amount of the reduction; and
(b) the amount of so much (if any) of
the reduction as is attributable to changes in Commonwealth Government policy
(the Commonwealth Government policy component of the reduction);
and
(c) the amount of so much (if any) of
the reduction as is attributable to improvements in knowledge about the
environmentally sustainable level of take for the water resources of the water
resource plan area (the new knowledge component of the
reduction); and
(d) the amount of so much (if any) of
the reduction as is the Commonwealth’s share of the reduction (worked out under
subsection (2)).
Each of the amounts referred to in paragraphs (a),
(b), (c) and (d) is to be expressed as a quantity of water per year.
(2) The Commonwealth’s share of
the reduction is to be worked out as follows:
(a) the Commonwealth’s share of the
reduction includes the Commonwealth Government policy component of the
reduction (if any); and
(b) if the reduction is one that takes
effect on or after 1 January 2015—the Commonwealth’s share of the
reduction also includes so much of the new knowledge component (if any) as is
worked out under subsection (3).
(3) The amount to be included in the
Commonwealth’s share of the reduction under paragraph (2)(b) is to be
worked out on the basis that, for reductions in the long‑term average
sustainable diversion limit for the water resources, or that part of the water
resources, of the water resource plan area in any 10 year period, the
Commonwealth’s share of the reductions:
(a) does not include so much of new
knowledge components of those reductions as does not exceed (in aggregate) 3%
of the relevant diversion limit; and
(b) includes two‑thirds of so
much of the new knowledge components of those reductions as:
(i) exceeds (in aggregate)
3% of the relevant diversion limit; and
(i) does not exceed (in
aggregate) 6% of the relevant diversion limit; and
(c) includes 50% of so much of the new
knowledge components of those reductions as exceed (in aggregate) 6% of the
relevant diversion limit.
(4) For the purposes of applying subsection (3)
for a reduction in the long‑term average sustainable diversion limit for the
water resources, or part of the water resources, of a water resource plan area,
the relevant diversion limit is the earliest long‑term
average sustainable diversion limit for those water resources, or that part of
those water resources, that applied:
(a) during the 10 years immediately
preceding the reduction; and
(b) on or after 1 January 2015.
76
Commonwealth to manage Commonwealth share of reduction in diversion limit
If the Basin Plan specifies, under
subsection 75(1), the Commonwealth’s share of a reduction in the long‑term
average sustainable diversion limit for the water resources of a water resource
plan area, or for the particular part of those water resources, the
Commonwealth:
(a) must endeavour to manage the
impact of the Commonwealth’s share of the reduction in the limit on the holders
of water access entitlements; and
(b) may take steps to ensure that the
holders of water access entitlements do not suffer a reduction in their water
allocations, or a change in the reliability of their water allocations, as a
result of the Commonwealth’s share of the reduction in the limit.
Note 1: This subsection implements in part the policy
in clauses 49 and 50 of the National Water Initiative.
Note 2: If a reduction in, or a change in the
reliability of, a water allocation results despite the steps taken by the
Commonwealth, the Commonwealth may be liable for an amount under section 77.
77
Payments to water access entitlement holders
Qualification for payment under this section
(1) A person (the entitlement holder)
qualifies for a payment under this section if:
(a) the entitlement holder holds a
water access entitlement in relation to a water resource plan area; and
(b) one of the following subparagraphs
is satisfied:
(i) the water access entitlement
was granted, issued or authorised before 25 January 2007;
(ii) the water access
entitlement is granted, issued or authorised in accordance with a transitional
water resource plan;
(iii) the water access
entitlement is granted, issued or authorised on or after 25 January 2007,
and before the Basin Plan takes effect, and the Minister determines in writing
that the entitlement relates to a water resource that was not overallocated at
the time of, or because of, the grant, issue or authorisation;
(iv) the water access
entitlement is granted, issued or authorised after the Basin Plan takes effect
and is granted, issued or authorised in accordance with the Basin Plan and the
water resource plan for the water resources of the water resource plan area, or
for the particular part of the water resources of the area; and
(c) there is:
(i) a reduction in the
water allocations to be made in relation to the water access entitlement; or
(ii) a change in the
reliability of those water allocations; and
(d) the reduction in the water
allocations, or the change in the reliability of the water allocations, occurs
because of a reduction (the diversion limit reduction) in the
long‑term average sustainable diversion limit for the water resources of
the water resource plan area, or for the particular part of those water
resources; and
(e) the whole, or a part, of the
reduction in the water allocations, or the change in the reliability of the
water allocations, is reasonably attributable to the Commonwealth’s share of
the reduction.
A determination under subparagraph (b)(iii) is not a
legislative instrument.
(2) In applying paragraph (1)(e), regard
is to be had to:
(a) any steps taken by the
Commonwealth to ensure that holders of water access entitlements do not suffer
a reduction in their water allocations, or a change in the reliability of their
water allocations, as a result of the diversion limit reduction; and
(b) the effect of those steps on the
water allocations, or the reliability of the water allocations, made to the
holders of water access entitlements; and
(c) the effect of the other provisions
of the Basin Plan.
Minister to decide claim
(3) If the entitlement holder makes a claim
for a payment under this section in relation to the diversion limit reduction,
the Minister must:
(a) if the Minister is satisfied that
the entitlement holder qualifies for a payment under this section in relation
to the reduction:
(i) determine that a
payment under this section is to be made to the entitlement holder in relation
to the reduction; and
(ii) determine the amount
of the payment under this section to be made to the entitlement holder; and
(b) if the Minister is not satisfied
that the entitlement holder qualifies for a payment under this section in
relation to the reduction—determine that a payment under this section is not to
be made to the entitlement holder in relation to the reduction.
Amount of payment under this section
(4) Subject to subsection (6), the
amount of the payment under this section is worked out as follows:
(a) first work out the amount of the reduction
in the value of the entitlement holder’s water access entitlement that occurred
because of the reduction in, or the change in the reliability of, the
entitlement holder’s water allocations;
(b) then work out how much of that
reduction in value is reasonably attributable to the Commonwealth’s share of
the diversion limit reduction.
(5) In applying paragraph (4)(b), regard
is to be had to:
(a) any steps taken by the
Commonwealth to ensure that holders of water access entitlements do not suffer
a reduction in, or a change in the reliability of, their water allocations as a
result of the diversion limit reduction; and
(b) the effect of those steps on the
water allocations made to the holders of water access entitlements; and
(c) the effect of the other provisions
of the Basin Plan.
(6) The amount of the payment under this
section must not exceed the amount worked out as follows:
(a) first work out the percentage of
the diversion limit reduction represented by the Commonwealth share of the
reduction;
(b) then apply that percentage to the
amount worked out under paragraph (4)(a).
AAT review
(7) An application may be made to the
Administrative Appeals Tribunal for the review of:
(a) a determination of the Minister
under paragraph (3)(b); or
(b) a determination of the Minister
under subparagraph (3)(a)(ii).
Substitute entitlements
(8) If:
(a) a water access entitlement (the substitute
entitlement) is granted, issued or authorised; and
(b) the substitute entitlement is
granted, issued or authorised in substitution for an equivalent water access right
(the earlier right) that was previously granted, issued or
authorised at a particular time;
the substitute entitlement is taken, for the purposes of
applying paragraph (1)(b), to have been granted, issued or authorised at
the time when the earlier right was granted, issued or authorised.
Note: This means, for example, that if the earlier right
was granted, issued or authorised before 25 January 2007, the substitute
entitlement is also taken to have been granted, issued or authorised before 25 January
2007.
(9) For the purposes of subsection (8),
the substitute entitlement is not equivalent to the earlier right if the amount
of water that can be taken under the substitute entitlement is more than the
amount of water that could be taken under the earlier right.
78
Applying Subdivision when transitional or interim water resource plan ends
(1) This section applies if a transitional
water resource plan, or an interim water resource plan, for a water resource
plan area is in effect when the Basin Plan first takes effect.
(2) The Basin Plan must specify the long‑term
average limit on the quantity of water that can be taken from the water
resources of the water resource plan area that the Authority is satisfied will
be applicable immediately before the transitional water resource plan, or
interim water resource plan, ceases to have effect.
(3) For the purposes of applying this Subdivision:
(a) the long‑term average
sustainable diversion limit for the water resources of the water resource plan
area is taken to be reduced when the transitional water resource plan, or
interim water resource plan, ceases to have effect if:
(i) the long‑term
average limit specified under subsection (2); exceeds
(ii) the long‑term
average sustainable diversion limit for the water resources of the water
resource plan area that is specified in the Basin Plan; and
(b) the amount of the reduction is the
amount of the excess; and
(c) the Basin Plan must specify the
amounts referred to in paragraphs 75(1)(a), (b), (c) and (d) in relation to the
reduction.
79
Regulations
(1) The regulations may provide for matters
that are necessary or convenient to be provided for in relation to claims for payments
under section 77.
(2) Without limiting subsection (1), the
regulations made for the purposes of that subsection may provide for:
(a) how a person is to make a claim
under section 77; and
(b) the time within which the person
may make the claim; and
(c) the information that the person
making a claim must provide in support of the claim; and
(d) the procedure to be followed in
dealing with the claim; and
(e) the method to be used to calculate
the amount of a reduction in a water allocation to which the claim relates; and
(f) the method to be used to
calculate the change in value of a water access entitlement in relation to
which the claim is made.
(3) Without limiting subsection (1), the
regulations made for the purposes of that subsection may require a Basin State,
an agency of a Basin State or another person, to give the Commonwealth, the
Authority or another agency of the Commonwealth information for the purposes of
dealing with a claim made under section 77.
Subdivision B—Risks arising from other changes to Basin Plan
80
Simplified outline
(1) This section provides a simplified
outline of this Subdivision.
(2) When a change to the Basin Plan would result
in a change in the reliability of the water allocations in relation to the
water resources of a water resource plan area, the Basin Plan identifies the change
and may also specify the Commonwealth’s share (if any) of that change in
reliability.
Note 1: The Commonwealth’s share is worked out in
accordance with the provisions of the National Water Initiative. The Initiative
provides that the Commonwealth’s share includes changes attributable to changes
in Commonwealth Government policy and, for changes that occur on or after 1 January
2015, may also include some part of changes attributable to improvements in
knowledge about the environmentally sustainable level of take for the water
resources of a water resource plan area.
Note 2: See section 81.
(3) The Commonwealth:
(a) endeavours to manage the impact of
the Commonwealth’s share of the potential change in reliability on the holders
of water access entitlements; and
(b) may take steps to ensure that the
holders of water access entitlements do not suffer a change in the reliability
of their water allocations as a result of the Commonwealth’s share of the potential
change.
Note: See section 82.
(4) If, despite the Commonwealth’s efforts,
there is a change in the reliability of the water allocations of a holder of a
water access entitlement and the change is reasonably attributable to the Commonwealth’s
share of the change in reliability, the holder may be entitled to a payment
under section 83.
81
Basin Plan to specify certain matters if Plan results in change in reliability
of water allocations
(1) This section applies if:
(a) a change to the Basin Plan would, if
action were not to be taken under this Subdivision, result in a change in the
reliability of water allocations in relation to the water resources of a water
resource plan area; and
(b) this would occur otherwise than
because of a reduction in the long‑term average sustainable diversion
limit for those water resources (or for a part of those waters resources).
(2) The Basin
Plan must:
(a) specify that this Subdivision
applies to that change to the Basin Plan; and
(b) specify the nature of the change
in the reliability of those water allocations.
(3) The Basin Plan may specify the following:
(a) the extent (if any) to which the
change in reliability is attributable to changes in Commonwealth Government
policy (the Commonwealth Government policy component of the
change in reliability);
(b) the extent (if any) to which the
change in reliability is attributable to improvements in knowledge about the
environmentally sustainable level of take for the water resources of the water
resource plan area (the new knowledge component of the change in
reliability);
(c) the extent (if any) of the
Commonwealth’s share of the change in reliability.
(4) The Commonwealth’s share of the change in
reliability is to be worked out for the purposes of paragraph (3)(c) in
accordance with:
(a) the provisions of the National
Water Initiative; and
(b) any regulations made for the
purposes of this paragraph.
Regulations made for the purposes of paragraph (b)
must not be inconsistent with the National Water Initiative.
82
Commonwealth to manage Commonwealth share of change in reliability
If the Basin Plan specifies, under
paragraph 81(3)(c), the Commonwealth’s share of a change in the reliability of
the water allocations in relation to the water resources of a water resource
plan area, the Commonwealth:
(a) must endeavour to manage the
impact of the Commonwealth’s share of the change in reliability on the holders
of water access entitlements; and
(b) may take steps to ensure that the
holders of water access entitlements do not suffer a change in the reliability
of their water allocations as a result of the Commonwealth’s share of the
change in reliability.
Note 1: This subsection implements in part the policy
in clauses 49 and 50 of the National Water Initiative.
Note 2: If a change in the reliability of water
allocations results despite the steps taken by the Commonwealth, the
Commonwealth may be liable for an amount under section 83.
83
Payments to water access entitlement holders
Qualification for payment under this section
(1) A person (the entitlement holder)
qualifies for a payment under this section if:
(a) the entitlement holder holds a
water access entitlement in relation to the water resources of a water resource
plan area; and
(b) one of the following subparagraphs
is satisfied:
(i) the water access
entitlement was granted, issued or authorised before 25 January 2007;
(ii) the water access
entitlement is granted, issued or authorised in accordance with a transitional
water resource plan;
(iii) the water access
entitlement is granted, issued or authorised on or after 25 January 2007,
and before the Basin Plan takes effect, and the Minister determines in writing
that the entitlement relates to a water resource that was not overallocated at
the time of, or because of, the grant, issue or authorisation;
(iv) the water access
entitlement is granted, issued or authorised after the Basin Plan takes effect
and is granted, issued or authorised in accordance with the Basin Plan and the
water resource plan for the water resources of the water resource plan area, or
for the particular part of the water resources of the area; and
(c) there is a change in the
reliability of the water allocations to be made in relation to the water access
entitlement; and
(d) the change in reliability of the
entitlement holder’s water allocations occurs because of a change (the relevant
Plan change) to the Basin Plan; and
(e) the Basin Plan specifies that this
Subdivision applies to the relevant Plan change; and
(f) the whole, or a part, of the
change in the reliability of the entitlement holder’s water allocations is
reasonably attributable to the Commonwealth’s share of the relevant Plan
change.
A determination under subparagraph (b)(iii) is not a
legislative instrument.
(2) For the purposes of applying this section
to the change in the reliability of the entitlement holder’s water allocations,
the Commonwealth’s share of the relevant Plan change is:
(a) the Commonwealth’s share of the
change in reliability that is specified in the Basin Plan under paragraph 81(3)(c)
if that share is specified in the Basin Plan under that paragraph; or
(b) the Commonwealth’s share of the
change in reliability of the entitlement holder’s water allocations that results
from the relevant Plan change (as determined, in writing, by the Authority) if paragraph (a)
does not apply.
A determination by the Authority under paragraph (b)
is not a legislative instrument.
Note: The Authority is not subject to the Minister’s
direction in relation to a determination under paragraph (b) (see
paragraph 175(2)(a)).
(3) The Commonwealth’s share of the change in
reliability of the entitlement holder’s water allocations is to be worked out
for the purposes of paragraph (2)(b) in accordance with:
(a) the provisions of the National
Water Initiative; and
(b) any regulations made for the
purposes of this paragraph.
Regulations made for the purposes of paragraph (b)
must not be inconsistent with the National Water Initiative.
(4) In applying paragraph (1)(f), regard
is to be had to:
(a) any steps taken by the
Commonwealth to ensure that holders of water access entitlements do not suffer
a change in the reliability of their water allocations as a result of the
relevant Plan change; and
(b) the effect of those steps on the
reliability of the water allocations made to the holders of water access
entitlements; and
(c) the effect of the other provisions
of the Basin Plan.
Minister to decide claim
(5) If the entitlement holder makes a claim
for a payment under this section in relation to the relevant Plan change, the
Minister must:
(a) if the Minister is satisfied that
the entitlement holder qualifies for a payment under this section in relation
to the relevant Plan change:
(i) determine that a
payment under this section is to be made to the entitlement holder in relation
to the relevant Plan change; and
(ii) determine the amount
of the payment under this section to be made to the entitlement holder; and
(b) if the Minister is not satisfied
that the entitlement holder qualifies for a payment under this section in
relation to the relevant Plan change—determine that a payment under this
section is not to be made to the entitlement holder in relation to the relevant
Plan change.
Amount of payment under this section
(6) The amount of the payment under this
section is worked out as follows:
(a) first work out the amount of the
reduction in the value of the entitlement holder’s water access entitlement
that occurred because of the change in the reliability of the entitlement
holder’s water allocations;
(b) then work out how much of that
reduction in value is reasonably attributable to the Commonwealth’s share of
the relevant Plan change.
(7) In
applying paragraph (6)(b), regard is to be had to:
(a) any steps taken by the
Commonwealth to ensure that holders of water access entitlements do not suffer
a change in the reliability of their water allocations as a result of the
relevant Plan change; and
(b) the effect of those steps on the
reliability of the water allocations made to the holders of water access
entitlements; and
(c) the effect of the other provisions
of the Basin Plan.
AAT review
(8) An application may be made to the
Administrative Appeals Tribunal for the review of:
(a) a determination of the Minister under
paragraph (5)(b); or
(b) a determination of the Minister
under subparagraph (5)(a)(ii).
Substitute entitlements
(9) If:
(a) a water access entitlement (the substitute
entitlement) is granted, issued or authorised; and
(b) the substitute entitlement is
granted, issued or authorised in substitution for an equivalent water access
right (the earlier right) that was previously granted, issued or
authorised at a particular time;
the substitute entitlement is taken, for the purposes of
applying paragraph (1)(b), to have been granted, issued or authorised at
the time when the earlier right was granted, issued or authorised.
Note: This means, for example, that if the earlier
right was granted, issued or authorised before 25 January 2007, the
substitute entitlement is also taken to have been granted, issued or authorised
before 25 January 2007.
(10) For the purposes of subsection (9),
the substitute entitlement is not equivalent to the earlier right if the amount
of water that can be taken under the substitute entitlement is more than the
amount of water that could be taken under the earlier right.
84
Applying Subdivision when transitional or interim water resource plan ends
(1) This section applies if a transitional
water resource plan, or an interim water resource plan, for a water resource
plan area is in effect when the Basin Plan first takes effect.
(2) This Subdivision applies as if the
provisions of the transitional water resource plan, or the interim water
resource plan, had been provisions of the Basin Plan.
85
Regulations
(1) The regulations may provide for matters
that are necessary or convenient to be provided for in relation to claims for
payments under section 83.
(2) Without limiting subsection (1), the
regulations made for the purposes of that subsection may provide for:
(a) how a person is to make a claim
under section 83; and
(b) the time within which the person
may make the claim; and
(c) the information that the person
making a claim must provide in support of the claim; and
(d) the procedure to be followed in
dealing with the claim; and
(e) the method to be used to calculate
the change in value of a water access entitlement in relation to which the
claim is made; and
(f) the procedure for applying for,
and making, determinations under paragraph 83(2)(b).
(3) Without limiting subsection (1), the
regulations made for the purposes of that subsection may require a Basin State,
an agency of a Basin State or another person, to give the Commonwealth, the
Authority or another agency of the Commonwealth information for the purposes of
dealing with a claim made under section 83.
(4) The regulations may make provision in
relation to the application of the provisions of the National Water Initiative
for the purposes of this Subdivision.
86 Operation
of Subdivision
(1) This Subdivision imposes obligations on
the Commonwealth in relation to changes in the reliability of water allocations
only to the extent to which the National Water Initiative provides that the
Commonwealth is responsible those changes.
(2) To avoid doubt, this Subdivision does not
impose obligations on the Commonwealth merely because of:
(a) actions taken by, or on behalf of,
the Commonwealth (including purchasing water access rights); or
(b) actions taken under the Basin Plan
in the exercise of the rights conferred by water access rights held by, or on
behalf, of the Commonwealth.
Part 3—Audits by National Water Commission
87
Power to conduct audits
(1) The National Water Commission may audit
the effectiveness of the implementation of the Basin Plan and the water
resource plans.
(2) In carrying out an audit, the National
Water Commission must take into account such matters (if any) as are specified
in the regulations.
88
When audits must be conducted
(1) The National Water Commission must
complete the first audit under this Part within 5 years after the commencement
of this Act.
(2) The National Water Commission must
complete any subsequent audit under this Part within 5 years after the
completion of the most recent audit under this Part.
89
Reports on audits
(1) The National Water Commission must:
(a) give to the Minister a written
report on each of its audits under this Part; and
(b) give copies of the report to the
Authority and to the relevant State Minister for each of the Basin States.
(2) To avoid doubt, subsection 7(4A) of the National
Water Commission Act 2004 does not apply to reports given to the Minister
under this section.
90
Tabling reports
The Minister must cause copies of each
report given to the Minister under section 89 to be laid before each House
of the Parliament within 15 sitting days of that House after being given the
report.
Part 4—Basin water charge and water market rules
Division 1—Water charge rules
91
Regulated water charges
(1) This Division applies to the following
kinds of charges:
(a) fees or charges (however
described) payable to an irrigation infrastructure operator for:
(i) access to the operator’s
irrigation network (or services provided in relation to that access); or
(ii) changing access to the
operator’s irrigation network (or services provided in relation to that
access); or
(iii) terminating access to
the operator’s irrigation network (or services provided in relation to that
access); or
(iv) surrendering to the operator
a right to the delivery of water through the operator’s irrigation network;
(b) bulk water charges;
(c) water planning and water
management charges;
(d) a fee or charge (however
described) that relates to:
(i) access to water
service infrastructure; or
(ii) services provided in
relation to access to water service infrastructure; or
(iii) services provided
through the operation of water service infrastructure; or
(iv) the taking of water
from a water resource;
and is of a kind prescribed by
the regulations for the purposes of this paragraph.
(2) This Division applies to a charge of the
kind referred to in subsection (1) only to the extent to which the charge
relates to:
(a) Basin water resources; or
(b) water service infrastructure that
carries Basin water resources; or
(c) water access rights, irrigation
rights or water delivery rights in relation to Basin water resources.
(3) However, this Division does not apply to
charges in respect of urban water supply activities beyond the point at which
the water has been removed from a Basin water resource.
(4) Charges to which this Division applies
are regulated water charges for the purposes of this Act.
92
Water charge rules
(1) The Minister may make rules (to be called
water charge rules) that:
(a) relate to regulated water charges;
and
(b) deal with one or more of the
matters referred to in subsection (3); and
(c) contribute to achieving the Basin
water charging objectives and principles set out in Schedule 2.
(2) Water charge rules are legislative
instruments.
(3) Water charge rules may deal with the
following matters:
(a) the rules that must be applied in
determining the amount of:
(i) regulated water
charges generally; or
(ii) regulated water
charges of a particular kind;
(b) the terms and conditions that may,
or must not, be imposed in relation to:
(i) regulated water
charges generally; or
(ii) regulated water
charges of a particular kind;
(c) the determination, or approval, by
the ACCC of:
(i) regulated water
charges of a kind referred to in paragraph 91(1)(a) to which subparagraph
91(1)(a)(iii) or (iv) applies; or
(ii) bulk water charges; or
(iii) regulated water
charges of a kind referred to in paragraph 91(1)(d) (other than regulated water
charges that are payable to irrigation infrastructure operators);
(d) the process to be followed in
applying for, and making or giving, determinations or approvals of the kind
referred to in paragraph (c);
(e) the accreditation by the ACCC of arrangements
under which:
(i) regulated water
charges of a kind referred to in paragraph 91(1)(a) to which subparagraph
91(1)(a)(iii) or (iv) applies; or
(ii) bulk water charges; or
(iii) regulated water
charges of a kind referred to in paragraph 91(1)(d) (other than regulated water
charges that are payable to irrigation infrastructure operators);
are determined or approved by
agencies of the States (instead of by the ACCC);
(f) the process to be followed in
applying for, and making or giving, accreditation of the kind referred to in paragraph (e);
(g) the terms and conditions on which
arrangements are accredited under rules made for the purposes of paragraph (e)
(including the determination of some or all of those terms and conditions by
the ACCC);
(h) the obligations to be imposed in
relation to the accreditation of arrangements under rules made for the purposes
of paragraph (e) (including the determination of some or all of those
obligations by the ACCC);
(i) the prohibition of regulated
water charges of a particular kind in the circumstances specified in the rules;
(j) the imposition of a requirement
on the person determining the amount of regulated water charges to publish:
(i) the details of the
charges; and
(ii) the process for
determining the amount of the charges;
(k) transitional arrangements for the
introduction of, or changes to, water charge rules;
(l) any matter that was dealt with
in:
(i) paragraph 15(3)(c) of
Schedule E to the MDB Agreement; or
(ii) the Access and Exit
Fees Protocol to the MDB Agreement made under paragraph 6(1)(f) of Schedule E
to the MDB Agreement;
immediately before the
commencement of this Part.
(4) Without limiting paragraph (3)(c)
water charge rules may specify the effect, and duration, of a determination or
approval of the kind referred to in that paragraph.
(5) Without limiting paragraph (3)(d),
water charge rules may specify:
(a) the information that an applicant
for a determination or approval of the kind referred to in paragraph (3)(c)
must give the ACCC in relation to the application; and
(b) the timing of the steps in the
process in which:
(i) the application is
made; and
(ii) the determination is
made or the approval is given.
(6) Without limiting paragraph (3)(e),
the rules made for the purposes of that paragraph may provide for the
circumstances in which:
(a) an accreditation may be revoked;
or
(b) the terms and conditions on which
an accreditation is given may be varied.
(7) Water charge rules may provide that the
ACCC is to determine, or approve, the amount of regulated water charges imposed
by the Authority.
(8) Without limiting subsection (3),
particular water charge rules may be limited to either or both of the
following:
(a) particular kinds of regulated
water charges;
(b) regulated water charges in
relation to particular water resources.
(9) Without limiting subsection (3),
water charge rules may provide that a particular provision of the rules is a
civil penalty provision.
(10) The civil penalty for a contravention of a
provision specified under subsection (7) is 200 penalty units.
(11) Without limiting subsection (3),
water charge rules may provide that a person who suffers loss or damage as a
result of conduct, or an omission, of another person that contravenes the water
charge rules may recover the amount of the loss or damage by action against
that other person or against any person involved in the contravention.
93
Process for making water charge rules
(1) The Minister must ask the ACCC for advice
about water charge rules the Minister proposes to make.
(2) The ACCC must give the Minister advice
about the proposed water charge rules.
(3) In giving advice to the Minister about
proposed water charge rules in relation to regulated water charges payable to infrastructure
operators, the ACCC must have regard to:
(a) the governance arrangements of
those operators; and
(b) the current charging arrangements
of those operators; and
(c) the history of the charging
arrangements of those operators.
(4) The Minister must have regard to the ACCC’s
advice in making the water charge rules.
(5) The regulations must provide for the
process that the Minister is to follow in making water charge rules.
(6) Without limiting subsection (4), the
regulations must provide for consultations with the Basin States and
infrastructure operators, and public consultations, as part of the process of
making, amending or revoking water charge rules.
(7) If:
(a) the Minister makes water charge
rules; and
(b) the rules do not reflect the
advice that the ACCC gave the Minister under subsection (2) in relation to
the rules;
the Minister must, when the rules are laid before a House
of the Parliament under the Legislative Instruments Act 2003, also lay
before that House a document that sets out:
(c) the respects in which the rules do
not reflect the advice given by the ACCC; and
(d) the Minister’s reasons for
departing from that advice.
94
Constitutional operation of water charge rules
(1) Water charge rules apply to a regulated
water charge if one or more of the paragraphs in subsection (2) or (3) are
satisfied.
(2) This subsection applies if:
(a) the person imposing the charge, or
making the demand, is a constitutional corporation; or
(b) the person on whom the charge is
imposed, or from whom the charge is demanded, is a constitutional corporation;
or
(c) the charge is imposed, or payment
of the charge is demanded, in the course of trade and commerce between the
States or between a State and a Territory; or
(d) the person who imposes, or demands
payment of, the charge does so in a Territory; or
(e) the charge relates to:
(i) a water resource in a
Territory; or
(ii) water service
infrastructure in a Territory; or
(iii) tradeable water rights
in relation to a water resource in a Territory; or
(f) the charge is imposed, or payment
of the charge is demanded, using a postal, telegraphic, telephonic or other
like service (within the meaning of paragraph 51(v) of the Constitution).
(3) This subsection applies if:
(a) the person imposing, or demanding
payment of, the charge does so in a referring State; or
(b) the imposition, or the demand for
payment of, the charge has an effect in a referring State; or
(c) the charge relates to:
(i) a water resource in a
referring State; or
(ii) water service
infrastructure in a referring State; or
(iii) tradeable water rights
in relation to a water resource in a referring State.
(4) Subsections (2) and (3) (and the
paragraphs of each of those subsections):
(a) have effect independently of each
other; and
(b) do not limit the operation (if
any) that the water charge rules validly have apart from this section.
95
ACCC to monitor water charges and compliance
(1) The ACCC is to monitor:
(a) regulated water charges; and
(b) compliance with the provisions of
this Division; and
(c) compliance with water charge
rules.
(2) The ACCC must give the Minister a report
on the results of such monitoring.
(3) The reports under subsection (2)
must be given to the Minister in accordance with an agreement between the
Minister and the ACCC.
96
Minister may formulate model water charge rules
(1) The Minister may formulate, in writing,
model rules for regulated water charges.
Note: The model rules do not have any legal effect
under this Act but are available for adoption by States, Territories,
infrastructure operators and other persons.
(2) Model rules formulated under subsection (1)
are not legislative instruments.
Division 2—Water market rules
97
Water market rules
(1) The Minister may make rules (to be called
water market rules) that:
(a) relate to an act that an
irrigation infrastructure operator does, or fails to do, in a way that prevents
or unreasonably delays arrangements being made that would reduce the share
component of a water access entitlement of the operator to allow a person’s
entitlement to water under an irrigation right against the operator to be
permanently transformed into a water access entitlement that is held by someone
other than the operator; and
(b) contribute to achieving the Basin
water market and trading objectives and principles set out in Schedule 3.
Arrangements of the kind referred to in paragraph (a)
are referred to in this section as transformation arrangements.
(2) Water market rules are legislative
instruments.
(3) Without limiting subsection (1),
water market rules may deal with the restrictions that an irrigation
infrastructure operator may, or may not, impose in relation to:
(a) transformation arrangements; or
(b) the trading or transferring, by a
person who had an irrigation right against the operator, of a water access entitlement
obtained as a result of transformation arrangements.
(4) Without limiting subsection (3), the
restrictions referred to in that subsection include:
(a) restrictions imposed by including
provisions in a contract, arrangement or understanding between an irrigation
infrastructure operator and:
(i) a person who has an
irrigation right against the operator; or
(ii) a person who has a
water access entitlement that the person obtained as a result of transformation
arrangements in relation to an irrigation right the person had against the
operator; and
(b) restrictions imposed by the way in
which an irrigation infrastructure operator conducts its operations.
(5) Without limiting subsection (1),
water market rules may:
(a) permit an irrigation infrastructure
operator to require security before allowing:
(i) a person who holds an
irrigation right against the operator to obtain a water access entitlement
through transformation arrangements in relation to the irrigation right; or
(ii) a person who has
obtained a water access entitlement as a result of transformation arrangements
in relation to an irrigation right the person had against the operator to trade
or transfer the water access entitlement obtained; and
(b) provide for transitional
arrangements in relation to contracts that have been entered into between an
irrigation infrastructure operator and another person before water market rules
are made or amended.
(6) Water market rules must not prevent an
irrigation infrastructure operator from:
(a) imposing, or requiring the payment
of, a regulated water charge; or
(b) requiring the approval of a person
who holds a legal or equitable interest in an irrigation right that a person
has against the operator before allowing transformation arrangements in
relation to that irrigation right.
(7) Without limiting subsection (1),
water market rules may provide that a particular provision of the rules is a
civil penalty provision.
(8) The civil penalty for a contravention of
a provision specified under subsection (7) is 200 penalty units.
(9) Without limiting subsection (1),
water market rules may provide that a person who suffers loss or damage as a
result of conduct, or an omission, of another person that contravenes the water
market rules may recover the amount of the loss or damage by action against
that other person or against any person involved in the contravention.
(10) No claim, action or demand may be made,
asserted or taken against an irrigation infrastructure operator for anything
done by the operator solely for the purpose of complying with water market
rules.
98
Process for making water market rules
(1) The Minister must ask the ACCC for advice
about water market rules the Minister proposes to make.
(2) The ACCC must give the Minister advice about
the proposed water market rules.
(3) The Minister must have regard to the ACCC’s
advice in making the water market rules.
(4) The regulations must provide for the
process that the Minister is to follow in making water market rules.
(5) Without limiting subsection (4), the
regulations must provide for consultations with the Basin States and irrigation
infrastructure operators, and public consultations, as part of the process of
making, amending or revoking water market rules.
(6) If:
(a) the Minister makes water market
rules; and
(b) the rules do not reflect the
advice that the ACCC gave the Minister under subsection (2) in relation to
the rules;
the Minister must, when the rules are laid before a House
of the Parliament under the Legislative Instruments Act 2003, also lay
before that House a document that sets out:
(c) the respects in which the rules do
not reflect the advice given by the ACCC; and
(d) the Minister’s reasons for
departing from that advice.
99
Constitutional operation of water market rules
(1) Water market rules apply to an act, or a
failure to do an act, by an infrastructure operator that has an effect on:
(a) the ability of a person who holds
an irrigation right against the operator to obtain a water access entitlement;
or
(b) the ability of a person who held
an irrigation right against the operator to trade or transfer a water access entitlement;
if one or more of the paragraphs in subsection (2) or
(3) are satisfied.
(2) This subsection applies if:
(a) the infrastructure operator or the
person who holds, or held, the irrigation right is a constitutional
corporation; or
(b) the act is done, or the failure to
do the act occurs, in the course of trade and commerce between the States or
between a State and a Territory; or
(c) the act is done, or the failure to
do the act occurs, in a Territory; or
(d) the water access right, or the
irrigation right, relates to a water resource in a Territory; or
(e) the act is done, or the failure to
do the act occurs, using a postal, telegraphic, telephonic or other like
service (within the meaning of paragraph 51(v) of the Constitution).
(3) This subsection applies if:
(a) the act is done, or the failure to
do the act occurs, in a referring State; or
(b) the act, or the failure to do the
act, has an effect in a referring State; or
(c) the water access right, or the
irrigation right, relates to a water resource in a referring State.
(4) Subsections (2) and (3) (and the
paragraphs of each of those subsections):
(a) have effect independently of each
other; and
(b) do not limit the operation (if
any) that the water market rules validly have apart from this section.
100
ACCC to monitor compliance
(1) The ACCC is to monitor compliance with
the provisions of this Division.
(2) The ACCC must give the Minister a report
on the results of such monitoring.
(3) The reports under subsection (2)
must be given to the Minister in accordance with an agreement between the
Minister and the ACCC.
Part 5—Murray‑Darling Basin Water Rights Information Service
101
Registrable water rights
(1) This Part applies to the following
rights:
(a) water access rights in relation to
Basin water resources;
(b) water delivery rights in relation
to Basin water resources;
(c) irrigation rights in relation to
Basin water resources;
(d) rights that:
(i) relate to access to,
or the use of, Basin water resources; and
(ii) are of a kind
prescribed by the regulations for the purposes of this paragraph.
(2) Rights to which this Part applies are registrable
water rights for the purposes of this Act.
102
Registers to which this Part applies
This Part applies to a register of
registrable water rights that is kept by:
(a) a Basin State or an agency of a
Basin State; or
(b) an infrastructure operator; or
(c) any other person prescribed by the
regulations for the purposes of this paragraph.
103
Murray‑Darling Basin Water Rights Information Service
(1) The Authority may provide an information
service that allows access to:
(a) some or all of the information
included in the registers to which this Part applies; and
(b) other information about
registrable water rights registered in the registers to which this Part
applies.
The information service is to be known as the Murray‑Darling
Basin Water Rights Information Service.
(2) The regulations may provide for:
(a) the form in which the Murray‑Darling
Basin Water Rights Information Service is to be provided; and
(b) the information to be provided
through the Service; and
(c) requiring:
(i) a person who keeps a
register to which this Part applies; or
(ii) a person who has
information in relation to registrable water rights;
to give information to the
Authority for the purposes of the Service; and
(d) the form, or the manner, in which
the information referred to in paragraph (c) is to be given to the
Authority; and
(e) access to information through the
Service; and
(f) technical requirements to be met
by the Service; and
(g) the operation of the Service; and
(h) the compatibility and
interoperability between the Service and the registers to which this Part
applies; and
(i) the use of the Service by:
(i) the Authority; or
(ii) a person prescribed by
the regulations for the purposes of this paragraph;
to monitor and report on
registrable water rights and transactions in relation to registrable water
rights.
(3) Neither the Authority nor the
Commonwealth is liable to compensate a person for loss or damage that the
person suffers because of an error in, or omission from, the Murray‑Darling
Basin Water Rights Information Service.
Part 6—Commonwealth Environmental Water Holder
Division 1—Establishment and functions
104
Establishment
There is to be a Commonwealth
Environmental Water Holder.
105
Functions
(1) The functions of the Commonwealth
Environmental Water Holder are, on behalf of the Commonwealth:
(a) to manage the Commonwealth
environmental water holdings; and
(b) to administer the Environmental
Water Holdings Special Account.
(2) The function of managing the Commonwealth
environmental water holdings includes doing any of the following on behalf of
the Commonwealth:
(a) exercising any powers of the
Commonwealth to purchase, dispose of and otherwise deal in water and water
access rights, water delivery rights or irrigation rights;
(b) exercising any powers of the
Commonwealth to enter into contracts (including options contracts) for the
purposes of such purchasing, disposal or other dealing;
(c) maintaining an up to date record
of the Commonwealth environmental water holdings;
(d) making available water from the
Commonwealth environmental water holdings;
(e) entering into contracts or other
arrangements in relation to:
(i) the taking or use of
water under rights or interests that form part of the Commonwealth
environmental water holdings; or
(ii) the undertaking of
work to enable the taking or use of water under rights or interests that form
part of the Commonwealth environmental water holdings.
(3) The functions of the Commonwealth
Environmental Water Holder are to be performed for the purpose of protecting or
restoring the environmental assets of:
(a) the Murray‑Darling Basin;
and
(b) other areas outside the Murray‑Darling
Basin where the Commonwealth holds water;
so as to give effect to relevant international agreements.
(4) Without limiting subsection (3), the
Commonwealth Environmental Water Holder must manage the Commonwealth
environmental water holdings in accordance with:
(a) to the extent that the
Commonwealth environmental water holdings relate to water in the Murray‑Darling
Basin—the environmental watering plan; and
(b) to the extent that the
Commonwealth environmental water holdings relate to water in an area outside
the Murray‑Darling Basin—the plan (if any) that:
(i) relates to
environmental watering in that area; and
(ii) is specified, in
relation to that area, in the regulations; and
(c) any operating rules that the
Minister has made under section 109; and
(d) any environmental watering
schedules to which the Commonwealth Environmental Water Holder is a party.
106
Limitation on disposal of water and Commonwealth environmental water holdings
(1) The Commonwealth Environmental Water
Holder must not dispose of water and Commonwealth environmental water holdings
during a water accounting period unless the water or the water holdings:
(a) are not required in the water
accounting period to meet the objectives of:
(i) if the water is in, or
the water holdings relate to water in, the Murray‑Darling Basin—the
environmental watering plan; or
(ii) if the water is in, or
the water holdings relate to water in, an area outside the Murray‑Darling
Basin—any plans specified in the regulations in relation to that area; or
(iii) any applicable
environmental watering schedules; and
(b) cannot be carried over into the
next water accounting period.
(2) However, this section does not apply to a
disposal of water or Commonwealth environmental water holdings if water or Commonwealth
environmental water holdings acquired with the proceeds of the disposal will
improve the capacity of the Commonwealth environmental water holdings to be
applied to meet the objectives of one or more of the following:
(a) the environmental watering plan;
(b) a plan specified in the
regulations in relation to an area outside the Murray‑Darling Basin;
(c) protecting or restoring the
environmental assets of an area outside the Murray‑Darling Basin in
relation to which those regulations do not specify a plan.
107
Limitation on directions to Commonwealth Environmental Water Holder
The Commonwealth Environmental Water Holder
is not subject to the direction of the Secretary of the Department, or the
Minister, in relation to doing any of the things referred to in paragraphs 105(2)(a)
to (c).
108
Meaning of Commonwealth environmental water holdings
(1) Commonwealth environmental water
holdings are:
(a) the rights that the Commonwealth
holds that are water access rights, water delivery rights, irrigation rights or
other similar rights relating to water; and
(b) the interests in, or in relation
to, such rights.
(2) Without limiting subsection (1), Commonwealth
environmental water holdings include:
(a) rights of a kind referred to in paragraph (1)(a)
that the Commonwealth holds on trust or holds as a lessee; and
(b) rights of a kind that the
Commonwealth Environmental Water Holder receives, on behalf of the
Commonwealth, as donations.
(3) However, Commonwealth environmental
water holdings do not include:
(a) water access rights, water
delivery rights, irrigation rights or other similar rights relating to water;
or
(b) interests in, or in relation to,
such rights;
that the Commonwealth holds for the purpose of the use of
water by the Commonwealth in the performance of functions that are not related
to its functions of water management under this Act.
109
Operating rules
(1) The Minister may, by legislative
instrument, make rules (operating rules) relating to the
Commonwealth Environmental Water Holder:
(a) purchasing, disposing of and
otherwise dealing in water and water access rights; and
(b) entering into contracts (including
options contracts) for the purposes of such purchasing, disposal or other
dealing.
(2) Operating rules that the Minister makes
under subsection (1) must not:
(a) impose obligations on any person
other than the Commonwealth Environmental Water Holder; or
(b) have the effect of overriding or
limiting the operation of a law of a State.
110
Application of State laws to the Commonwealth Environmental Water Holder
(1) Any requirement of a law of a Basin State
that prevents a person from:
(a) using, on land that the person
does not own, water available under a water access right; or
(b) obtaining a licence that would
authorise the use, on land that the person does not own, of water available
under a water access right;
does not apply to the Commonwealth Environmental Water
Holder in relation to the use of Commonwealth water holdings:
(c) to water declared Ramsar wetlands;
or
(d) to water water dependent
ecosystems that support:
(i) listed threatened
species (within the meaning of the Environment Protection and Biodiversity
Conservation Act 1999); or
(ii) listed threatened
ecological communities (within the meaning of that Act); or
(iii) listed migratory
species (within the meaning of that Act); or
(e) to water sites specified in the
regulations.
(2) This section does not authorise the
environmental watering of land without the consent of the owner of the land.
Division 2—Environmental Water Holdings Special Account
111
Establishment of the Environmental Water Holdings Special Account
(1) The Environmental Water Holdings Special
Account is established by this section.
(2) The Account is a Special Account for the
purposes of the Financial Management and Accountability Act 1997.
112
Credits of amounts to the Account
(1) There may be credited to the Account:
(a) all money appropriated by the
Parliament for the purposes of the Account; and
(b) amounts received by the
Commonwealth in connection with the performance of the Commonwealth
Environmental Water Holder’s functions under this Act; and
(c) amounts paid by a Basin State,
under an agreement between the Commonwealth and the State, for crediting to the
Account; and
(d) amounts equal to money received by
the Commonwealth in relation to property paid for with money from the Account;
and
(e) amounts equal to amounts of any
gifts given or bequests made for the purposes of the Account.
Note: An Appropriation Act provides for amounts to
be credited to a Special Account if any of the purposes of the Account is a
purpose that is covered by an item in the Appropriation Act.
(2) For the purposes of paragraph (1)(e),
amounts received by the Commonwealth Environmental Water Holder, on behalf of
the Commonwealth, as gifts or bequests are taken to be gifts given or bequests
made for the purposes of the Account.
113
Purpose of the Account
(1) This section sets out the purposes of the
Account.
(2) Amounts standing to the credit of the
Account may be debited for the following purposes:
(a) in payment or discharge of the
costs, expenses and other obligations incurred by the Commonwealth
Environmental Water Holder in the performance of the functions of the
Commonwealth Environmental Water Holder (including doing any of the things
referred to in subsection 105(2));
(b) meeting the expenses of
administering the Account.
(3) For the purposes of this section, the
expenses of administering the Account do not include the cost of salaries of
the Commonwealth Environmental Water Holder or the staff referred to in section 116.
Division 3—Reporting requirements
114
Annual report
Annual report to be given to Minister
(1) The Commonwealth Environmental Water
Holder must, as soon as practicable after 30 June in each financial year,
prepare and give to the Minister a report on the Commonwealth Environmental
Water Holder’s operations during that year.
Contents of annual report
(2) The Commonwealth Environmental Water
Holder must include in the report particulars of the following:
(a) achievements against the
objectives of the environmental watering plan;
(b) management of the Environmental
Water Holdings Special Account;
(c) all directions that the Secretary
of the Department, or the Minister, gave to the Commonwealth Environmental
Water Holder during the year.
Annual report to be tabled in Parliament
(3) The Minister must cause a copy of each
annual report to be tabled in each House of the Parliament within 15 sitting
days of that House after the day on which the Minister receives the report.
Annual report to be given to Basin States
(4) The Minister must cause a copy of each
annual report to be given to the relevant State Minister for each of the Basin
States on or before the day the report is first tabled in a House of the
Parliament.
Division 4—Appointment, staff and delegation
115
Appointment
The Commonwealth Environmental Water
Holder is to be engaged under the Public Service Act 1999.
116
Staff
The staff necessary to assist the
Commonwealth Environmental Water Holder are to be persons engaged under the Public
Service Act 1999 who are:
(a) employed in the Department; and
(b) made available for the purpose by
the Secretary of the Department.
117
Delegation
The Commonwealth Environmental Water
Holder may, by signed instrument, delegate all or any of his or her powers
under this Act to an SES employee or acting SES employee.
Part 7—Water information
Division 1—Application of this Part
118
Geographical application of this Part
This Part extends to every external
Territory.
119
Application of this Part limited to certain legislative powers
(1) This Part has effect to the extent to
which it is a law with respect to one or more of the following:
(a) census and statistics (within the
meaning of paragraph 51(xi) of the Constitution);
(b) meteorological observations
(within the meaning of paragraph 51(viii) of the Constitution);
(c) weights and measures (within the
meaning of paragraph 51(xv) of the Constitution);
(d) external affairs (within the
meaning of paragraph 51(xxix) of the Constitution).
(2) This Part has effect to the extent to
which it confers rights or imposes obligations, or relates to the conferral of
rights or the imposition of obligations, on constitutional corporations.
(3) This Part has effect to the extent to
which it is within the implied power of the Parliament to make laws with respect
to nationhood.
(4) Subsections (1), (2) and (3) (and
the paragraphs of each of those subsections):
(a) have effect independently of each
other; and
(b) do not limit the operation (if
any) that this Part validly has apart from this section.
Division 2—Functions and powers of the Bureau and Director of
Meteorology
120
Additional functions of the Bureau
The Bureau has the following functions
in addition to its functions under the Meteorology Act 1955:
(a) collecting, holding, managing,
interpreting and disseminating Australia’s water information;
(b) providing regular reports on the
status of Australia’s water resources and patterns of usage of those resources;
(c) providing regular forecasts on the
future availability of Australia’s water resources;
(d) compiling and maintaining water
accounts for Australia, including a set of water accounts to be known as the
National Water Account;
(e) issuing National Water Information
Standards;
(f) giving advice on matters relating
to water information;
(g) undertaking and commissioning
investigations to enhance understanding of Australia’s water resources;
(h) any other matter, relating to
water information, specified in the regulations.
121
Contents of the National Water Account
The National Water Account is to include
such matters (if any) as are specified in the regulations.
122
Publishing water accounts
(1) The Director of Meteorology must annually
publish the National Water Account in a form readily accessible by the public.
(2) The Director of Meteorology may publish
other water accounts from time to time.
(3) This section does not prevent parts or
all of the National Water Account, or any other water accounts, from being
updated at any other time.
123
Publishing water information
(1) The Director of Meteorology may at any
time publish, in a form readily accessible by the public, particular water
information that the Bureau holds.
(2) However, the Director of Meteorology must
not:
(a) publish particular water
information if he or she believes it would not be in the public interest; or
(b) publish water information in a way
that expressly identifies a person’s water use, unless the water information:
(i) is already published;
or
(ii) is otherwise publicly
available in a form that expressly identifies the person’s water use.
Division 3—Water information
124
Object of this Division
The object of this Division is to enable
the Bureau to fulfil its function of collecting water information.
125
Meaning of water information etc.
In this Act:
water information means any raw data, or any
value added information product, that relates to:
(a) the availability, distribution,
quantity, quality, use, trading or cost of water; or
(b) water access rights, water
delivery rights or irrigation rights;
and includes contextual information relating to water
(such as land use information, geological information and ecological
information).
126
Giving of water information to the Bureau
(1) A person specified in the regulations, or
included in a class of persons specified in the regulations, must give to the
Bureau a copy of water information of a kind specified in the regulations that
is in the person’s possession, custody or control (whether held electronically
or in any other form).
(2) The copy must be given to the Bureau within
the time specified in the regulations.
(3) The water information contained in the
copy:
(a) must be given in the form or
manner specified in the regulations; and
(b) must comply with any applicable
National Water Information Standards.
(4) A person must not contravene an
obligation imposed on the person under this section.
Civil penalty: 50 penalty units.
(5) A person must not, in purported
compliance with a requirement under this section, give to the Bureau information
that is false or misleading in a material particular.
Civil penalty: 60 penalty units.
(6) Subsection (4) does not apply to the
extent that the person has a reasonable excuse. However, a person does not have
a reasonable excuse merely because the water information in question is:
(a) of a commercial nature; or
(b) subject to an obligation of
confidentiality arising from a commercial relationship; or
(c) commercially sensitive.
127
Director of Meteorology may require water information
(1) The Director of Meteorology may, in
writing, require any person, or each person included in a class of persons, to
give specified water information to the Bureau:
(a) within a specified period of time;
and
(b) in a specified form or manner; and
(c) in accordance with any applicable
National Water Information Standards.
(2) A person must not fail to comply with a
requirement under this section.
Civil penalty: 50 penalty units.
(3) A person must not, in purported
compliance with a requirement under this section, give to the Bureau
information that is false or misleading in a material particular.
Civil penalty: 60 penalty units.
(4) Subsection (2) does not apply to the
extent that the person has a reasonable excuse. However, a person does not have
a reasonable excuse merely because the water information in question is:
(a) of a commercial nature; or
(b) subject to an obligation of
confidentiality arising from a commercial relationship; or
(c) commercially sensitive.
128
Prohibitions on disclosure of information do not apply
This Division has effect despite any law
of the Commonwealth, a State or a Territory prohibiting disclosure of the
information.
129
Ownership etc. of information unaffected by its disclosure
(1) Giving information under this Division
does not affect a person’s property rights with respect to that information.
(2) This section does not prevent the use of
the information by the Bureau for any purpose that is relevant to any of the
Bureau’s functions under this Act or any other Act.
Division 4—National Water Information Standards
130 National
Water Information Standards
(1) The Director of Meteorology may, by
legislative instrument, issue National Water Information Standards relating to
water information.
(2) Without limiting subsection (1), the
National Water Information Standards may deal with all or any of the following:
(a) collecting water information;
(b) measuring water;
(c) monitoring water;
(d) analysing water;
(e) transmitting water information;
(f) accessing water information;
(g) retaining and storing water
information;
(h) reporting water information;
(i) water accounting;
(j) any other matter relating to
water information that is specified in the regulations.
131 Adoption
of other standards
(1) In issuing National Water Information
Standards, the Director of Meteorology may make provision in relation to a
matter by applying, adopting or incorporating, with or without modification,
any matter contained in a standard:
(a) as in force or existing at a
particular time; or
(b) as in force or existing from time
to time;
that relates to water information and that any other
person or body has made or issued.
(2) Subsection (1) has effect despite
anything in subsection 14(2) of the Legislative Instruments Act 2003.
(3) If the Director of Meteorology makes
provision in relation to a matter by applying, adopting or incorporating a
matter contained in a standard that another person or body has made or issued, the
Director of Meteorology must ensure that:
(a) the text of the matter applied,
adopted or incorporated is made publicly available on the Bureau’s website,
unless that text is set out in the relevant National Water Information Standard;
and
(b) if the text of the matter is
applied, adopted or incorporated as in force or existing from time to time—any
subsequent amendments of that text are made publicly available on that website.
132
Consultations in preparing National Water Information Standards
(1) The Director of Meteorology must consult
with the States in preparing National Water Information Standards.
(2) In preparing National Water Information
Standards, the Director of Meteorology may undertake such other consultation as
he or she considers appropriate.
133
Compliance notices
(1) If a person has contravened a requirement
of the National Water Information Standards, the Minister or an authorised
person appointed by the Minister may give the person a notice requiring the
person to rectify the contravention, and comply with that requirement, within
the time specified in the notice.
(2) A person must not fail to comply with a
notice given to the person under this section.
Civil penalty: 60 penalty units.
(3) Subsection (2) does not apply to the
extent that the person has a reasonable excuse.
Division 5—Miscellaneous
134
Delegation by Director of Meteorology
(1) The Director of Meteorology may, in
writing, delegate all or any of his or her functions and powers under this Part
(other than sections 130 and 131) to an SES employee or acting SES
employee.
(2) The Director of Meteorology may, by
writing, delegate any or all of his or her functions and powers under this Part
to a person who holds, or acts in, an office or position:
(a) with a State or a Territory, or an
authority of a State or a Territory; and
(b) at a level equivalent to that of
an SES employee;
if the State, Territory or authority agrees to the
delegation.
(3) A delegate under subsection (1) or
(2) must comply with any written directions of the Director of Meteorology.
135
Directions by Minister
(1) The Minister may, by notice in writing to
the Director of Meteorology, give directions with respect to the performance of
the Bureau’s functions or the exercise of its powers.
(2) The Director of Meteorology must comply
with any such direction.
(3) A direction made under subsection (1)
is a legislative instrument, but neither section 42 (disallowance) nor
Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies
to the direction.
Part 8—Enforcement
Division 1—Preliminary
136
Contraventions to which this Part applies
This Part applies to the following
contraventions:
(a) a contravention of a provision of
this Act;
(b) a contravention of a provision of
the regulations;
(c) a contravention of a provision of
the water charge rules or the water market rules.
137
Appropriate enforcement agency for contraventions to which this Part applies
For the purposes of this Part, the appropriate
enforcement agency for a contravention to which this Part applies is:
(a) the Authority if the contravention
is a contravention of a provision of:
(i) Part 2 or
regulations made for the purposes of Part 2; or
(ii) Division 3 of
Part 10; or
(b) the ACCC if the contravention is a
contravention of a provision of Part 4, regulations made for the purposes
of Part 4, the water charge rules or the water market rules; or
(c) the Minister if the contravention
is a contravention of a provision of Part 7 or regulations made for the
purposes of Part 7.
138
References to Court
In this Part:
Court means:
(a) the Federal Court of Australia; or
(b) the Federal Magistrates Court; or
(c) a court of a State or Territory
that has jurisdiction in relation to matters arising under this Act.
139
Jurisdiction of Federal Magistrates Court
The Federal Magistrates Court does not
have jurisdiction in relation to proceedings under this Part against a State.
Division 2—Injunctions
140
Injunctions for contravention of the Act, regulations or rules
Applications for injunctions
(1) If a person has engaged, is engaging or
is proposing to engage in conduct consisting of an act or omission that
constituted, constitutes or would constitute a contravention to which this Part
applies, the appropriate enforcement agency may apply to a Court for an
injunction.
Prohibitory injunctions
(2) If a person has engaged, is engaging or
is proposing to engage in conduct that constituted, constitutes or would
constitute a contravention to which this Part applies, the Court may grant an
injunction restraining the person from engaging in the conduct.
Additional orders with prohibitory injunctions
(3) If the Court grants an injunction
restraining a person from engaging in conduct, and in the Court’s opinion it is
desirable to do so, the Court may make an order requiring the person to do
something (including repair or mitigate damage to the health of, or loss of,
Basin water resources).
Mandatory injunctions
(4) If a person has refused or failed, or is
refusing or failing, or is proposing to refuse or fail to do an act or thing,
and the refusal or failure did, does or would constitute a contravention to
which this Part applies, the Court may grant an injunction requiring the person
to do the act or thing.
(5) Without limiting subsection (3) or
(4), the Court may grant an injunction requiring the person to:
(a) implement a specified program for
compliance with this Act, the regulations, the water charge rules or the water
market rules; or
(b) disclose, in the way and to the
persons specified in the injunction, such information that the person has possession
of, or access to, as is specified in the injunction to correct or counter the
effect of a contravention to which this Part applies; or
(c) publish, at the person’s expense
and in the way specified in the injunction, an advertisement in the terms
specified in, or determined in accordance with, the injunction to correct or
counter the effect of a contravention to which this Part applies.
Interim injunctions
(6) Before deciding an application for an
injunction under this section, the Court may grant an interim injunction:
(a) restraining a person from engaging
in conduct; or
(b) requiring a person to do an act or
thing.
141
Discharge or variation of injunctions
On application, a Court may discharge or
vary an injunction granted by that Court under section 140.
142
Certain considerations for granting injunctions not relevant
Prohibitory injunctions
(1) A Court may grant an injunction under
section 140 restraining a person from engaging in conduct:
(a) whether or not it appears to the
Court that the person intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the person has
previously engaged in conduct of that kind; and
(c) whether or not there is a
significant risk of:
(i) injury or damage to
human beings; or
(ii) damage to property; or
(iii) harm to, or loss of,
water resources;
if the person engages, or
continues to engage, in conduct of that kind.
Mandatory injunctions
(2) A Court may grant an injunction under
section 140 requiring a person to do a particular act or thing:
(a) whether or not it appears to the
Court that the person intends to refuse or fail again, or to continue to refuse
or fail, to do the act or thing; and
(b) whether or not the person has
previously refused or failed to do the act or thing; and
(c) whether or not there is a
significant risk of:
(i) injury or damage to
human beings; or
(ii) damage to property; or
(iii) harm to, or loss of,
water resources;
if the person refuses or fails,
or continues to refuse or fail, to do the act or thing.
143
Powers conferred are in addition to other powers of the Court
The powers conferred on a Court by this
Division are in addition to (and do not limit) any other powers of the Court.
Division 3—Declarations
144
Declarations of contravention
(1) The appropriate enforcement agency may
apply to a Court for a declaration that a person has committed a contravention
to which this Part applies.
(2) If the Court is satisfied that the person
has committed the contravention, the Court may declare that the person has
committed the contravention.
(3) A declaration under subsection (2)
must specify the following:
(a) the Court that made the
declaration;
(b) the provision that was
contravened;
(c) the person who contravened the provision;
(d) the conduct that constituted the
contravention.
145
Discharge or variation of declarations
On application, a Court may discharge or
vary a declaration made by that Court under section 144.
Division 4—Civil penalties
Subdivision A—Civil penalty orders
146
Civil penalty provisions
The following are civil penalty
provisions for the purpose of this Act:
(a) a subsection of this Act (or a
section of this Act that is not divided into subsections) if:
(i) the words “civil
penalty” and one or more amounts in penalty units are set out at the foot of
the subsection (or section); or
(ii) another provision of
this Act specifies that the subsection (or section) is a civil penalty
provision;
(b) a provision of the water charge
rules if:
(i) the words “civil
penalty” and one or more amounts in penalty units are set out at the foot of
the provision; or
(ii) another provision of
the water charge rules specifies that the provision is a civil penalty
provision;
(c) a provision of the water market
rules if:
(i) the words “civil
penalty” and one or more amounts in penalty units are set out at the foot of
the provision; or
(ii) another provision of
the water market rules specifies that the provision is a civil penalty
provision.
147
Court may order person to pay pecuniary penalty for contravening civil penalty
provision
Application for order
(1) Within 6 years of a person (the wrongdoer)
contravening a civil penalty provision, the appropriate enforcement agency may
apply on behalf of the Commonwealth to a Court for an order that the wrongdoer
pay the Commonwealth a pecuniary penalty.
Note: Orders cannot be sought in relation to
Ministers, officers/employees of the Crown and Commonwealth or State agencies
(see section 12).
Court may order wrongdoer to pay pecuniary penalty
(2) If the Court is satisfied that the
wrongdoer has contravened a civil penalty provision, the Court may order the
wrongdoer to pay to the Commonwealth for each contravention the pecuniary
penalty that the Court determines is appropriate.
Maximum pecuniary penalty
(3) The pecuniary penalty must not exceed:
(a) if the wrongdoer is an
individual—the relevant amount specified for the civil penalty provision; or
(b) otherwise—an amount equal to 5
times the amount of the relevant amount specified for the civil penalty
provision.
Determining amount of pecuniary penalty
(4) In determining the pecuniary penalty, the
Court must have regard to all relevant matters, including:
(a) the nature and extent of the
contravention; and
(b) the nature and extent of any loss
or damage suffered as a result of the contravention; and
(c) the circumstances in which the
contravention took place; and
(d) whether the person has previously
been found by the Court in proceedings under this Act to have engaged in any
similar conduct.
Conduct contravening more than one civil penalty
provision
(5) If conduct constitutes a contravention of
2 or more civil penalty provisions, proceedings may be instituted under this
Act against a person in relation to the contravention of any one or more of
those provisions. However, the person is not liable to more than one pecuniary
penalty under this section in respect of the same conduct.
148
Contravening a civil penalty provision is not an offence
A contravention of a civil penalty
provision is not an offence.
149
Persons involved in contravening civil penalty provision
(1) A person must not:
(a) aid, abet, counsel or procure a
contravention of a civil penalty provision; or
(b) induce (by threats, promises or
otherwise) a contravention of a civil penalty provision; or
(c) be in any way directly or
indirectly knowingly concerned in, or party to, a contravention of a civil
penalty provision; or
(d) conspire to contravene a civil
penalty provision.
(2) This Division applies to a person who
contravenes subsection (1) in relation to a civil penalty provision as if
the person had contravened the provision.
150
Recovery of a pecuniary penalty
If a Court orders a person to pay a
pecuniary penalty:
(a) the penalty is payable to the
Commonwealth; and
(b) the Commonwealth may enforce the
order as if it were a judgment of the Court.
Subdivision B—Civil penalty proceedings and criminal proceedings
151
Civil proceedings after criminal proceedings
A Court must not make a pecuniary
penalty order against a person for a contravention of a civil penalty provision
if the person has been convicted of an offence constituted by conduct that is
substantially the same as the conduct constituting the contravention.
152
Criminal proceedings during civil proceedings
(1) Proceedings for a pecuniary penalty order
against a person for a contravention of a civil penalty provision are stayed
if:
(a) criminal proceedings are started
or have already been started against the person for an offence; and
(b) the offence is constituted by
conduct that is substantially the same as the conduct alleged to constitute the
contravention.
(2) The proceedings for the order may be
resumed if the person is not convicted of the offence. Otherwise, the proceedings
for the order are dismissed.
153
Criminal proceedings after civil proceedings
Criminal proceedings may be started
against a person for conduct that is substantially the same as conduct
constituting a contravention of a civil penalty provision regardless of whether
a pecuniary penalty order has been made against the person.
154
Evidence given in proceedings for penalty not admissible in criminal
proceedings
Evidence of information given or
evidence of production of documents by an individual is not admissible in
criminal proceedings against the individual if:
(a) the individual previously gave the
evidence or produced the documents in proceedings for a pecuniary penalty order
against the individual for a contravention of a civil penalty provision (whether
or not the order was made); and
(b) the conduct alleged to constitute
the offence is substantially the same as the conduct that was claimed to
constitute the contravention.
However, this does not apply to criminal proceedings in
respect of the falsity of the evidence given by the individual in the
proceedings for the pecuniary penalty order.
Division 5—Infringement notices
155
Object
The object of this Division is to set up
a system of infringement notices for contraventions of civil penalty provisions
as an alternative to the institution of proceedings in a Court.
156
When an infringement notice can be given
(1) If the appropriate enforcement agency has
reasonable grounds to believe that a person has contravened a civil penalty
provision (a designated civil penalty provision):
(a) set out in:
(i) Part 3, the water
charge rules or the water market rules; or
(ii) Part 7; or
(b) referred to in regulations made
for the purposes of this paragraph;
the appropriate enforcement agency may give to the person
an infringement notice relating to the alleged contravention.
(2) An infringement notice must be given
within 12 months after the day on which the contravention is alleged to have
taken place.
(3) A single infringement notice may be given
to a person in respect of:
(a) 2 or more alleged contraventions
of a designated civil penalty provision; and
(b) alleged contraventions of 2 or
more designated civil penalty provisions.
However, the notice must not require the person to pay
more than one penalty in respect of the same conduct.
157
Matters to be included in an infringement notice
(1) An infringement notice must:
(a) set out the name of the person to
whom the notice is given; and
(b) set out the name of the
appropriate enforcement agency who gave the notice; and
(c) set out brief details of the
alleged contravention of the civil penalty provision; and
(d) contain a statement to the effect
that proceedings will not be brought under this Part in relation to the alleged
contravention if the penalty specified in the notice is paid to the appropriate
enforcement agency, on behalf of the Commonwealth, within:
(i) 28 days after the
notice is given; or
(ii) if the appropriate
enforcement agency allows a longer period—that longer period; and
(e) contain a statement to the effect
that the person to whom the notice is given may choose not to pay the penalty
and, if the person does so, proceedings may be brought under this Part in
relation to the alleged contravention; and
(f) give an explanation of how
payment of the penalty is to be made; and
(g) set out such other matters (if
any) as are specified by the regulations.
Note: For the amount of penalty, see section 158.
(2) For the purposes of paragraph (1)(c),
the brief details must include the following information in relation to the
alleged contravention:
(a) the date, time and place of the
alleged contravention;
(b) the civil penalty provision that
was allegedly contravened.
158
Amount of penalty
The penalty to be specified in an
infringement notice relating to a person’s alleged contravention of a civil
penalty provision must be a pecuniary penalty equal to one‑fifth of the
maximum penalty that a Court could impose on the person for that contravention.
Note: To work out this maximum penalty, see
subsection 147(3).
159
Withdrawal of an infringement notice
(1) This section applies if an infringement
notice is given to a person.
(2) The appropriate enforcement agency may,
by written notice (the withdrawal notice) given to the person,
withdraw the infringement notice.
Refund of penalty if infringement notice withdrawn
(3) If:
(a) the penalty specified in the
infringement notice is paid; and
(b) the infringement notice is
withdrawn after the penalty is paid;
the Commonwealth is liable to refund the penalty.
160
Paying the penalty in accordance with the notice
(1) This section applies if:
(a) an infringement notice relating to
an alleged contravention of a civil penalty provision is given to a person; and
(b) the penalty is paid in accordance
with the infringement notice; and
(c) the infringement notice is not
withdrawn.
(2) Any liability of the person for the
alleged contravention is discharged.
(3) The
payment of the penalty is not to be taken as an admission by the person of
liability for the alleged contravention.
(4) Proceedings under this Part may not be
brought against the person for the alleged contravention.
161
Effect of this Division on civil proceedings
This Division does not:
(a) require an infringement notice to
be given in relation to an alleged contravention of a civil penalty provision;
or
(b) affect the liability of a person
to have proceedings under this Part brought against the person for an alleged
contravention of a civil penalty provision if:
(i) the person does not
comply with an infringement notice relating to the contravention; or
(ii) an infringement notice
relating to the contravention is not given to the person; or
(iii) an infringement notice
relating to the contravention is given to the person and subsequently
withdrawn; or
(c) limit a Court’s discretion to
determine the amount of a penalty to be imposed on a person who is found in
proceedings under this Part to have contravened a civil penalty provision.
162
Regulations
The regulations may make further
provision in relation to infringement notices.
Division 6—Enforceable undertakings
163
Acceptance of undertakings relating to contraventions to which this Part
applies
(1) This section applies if the appropriate
enforcement agency considers that an action taken by, or an omission of, a
person constituted a contravention to which this Part applies.
(2) The appropriate enforcement agency may
accept any of the following undertakings given by the person:
(a) a written undertaking that the
person will take specified action, in order to comply with the provisions of
this Act, the regulations, the water charge rules or the water market rules;
(b) a written undertaking that the
person will refrain from taking specified action in order to comply with the
provisions of this Act, the regulations, the water charge rules or the water
market rules;
(c) a written undertaking that the
person will take specified action directed towards ensuring that the person:
(i) does not commit a
contravention to which this Part applies; or
(ii) is unlikely to commit
a contravention to which this Part applies;
in the future;
(d) a written undertaking of a kind
specified in regulations made for the purposes of this paragraph.
(3) The undertaking must be expressed to be
an undertaking under this section.
(4) The person may withdraw or vary the
undertaking at any time, but only with the consent of the appropriate
enforcement agency.
(5) The appropriate enforcement agency may,
by written notice given to the person, cancel the undertaking.
(6) The
undertaking may be published:
(a) on the appropriate enforcement
agency’s website; and
(b) if the appropriate enforcement
agency is the Minister—on the Department’s website.
164
Enforcement of undertakings
(1) If:
(a) a person has given an undertaking
under section 163; and
(b) the undertaking has not been
withdrawn or cancelled; and
(c) the appropriate enforcement agency
considers that the person has breached the undertaking;
the appropriate enforcement agency may apply to a Court
for an order under subsection (2).
(2) If the Court is satisfied that the person
has breached the undertaking, the Court may make any or all of the following
orders:
(a) an order directing the person to
comply with the undertaking;
(b) an order directing the person to
pay to the enforcement agency, on behalf of the Commonwealth, an amount up to
the amount of any financial benefit that the person has obtained directly or
indirectly and that is reasonably attributable to the breach;
(c) any order that the Court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the Court
considers appropriate.
Division 7—Enforcement notices
165
Authority may issue an enforcement notice
(1) This section applies if the Authority is
satisfied that a person:
(a) has contravened, is contravening
or is likely to contravene a provision of Part 2 or of the regulations
made for the purposes of Part 2; or
(b) has engaged in, is engaging in or
is likely to engage in conduct that:
(i) was, is or would be
inconsistent with the Basin Plan or a water resource plan; or
(ii) prejudiced, is
prejudicing, or would prejudice, the effectiveness or the implementation of the
Basin Plan or a water resource plan; or
(iii) had, is having or
would have an adverse effect on the effectiveness or the implementation of the
Basin Plan or a water resource plan; or
(c) has omitted, is omitting or is
likely to omit to perform an act, where the omission:
(i) was, is or would be
inconsistent with the Basin Plan or a water resource plan; or
(ii) prejudiced, is
prejudicing, or would prejudice, the effectiveness or the implementation of the
Basin Plan or a water resource plan; or
(iii) had, is having or
would have an adverse effect on the effectiveness or the implementation of the
Basin Plan or a water resource plan.
(2) The Authority may, by written notice
given to the person, direct the person to take the action specified in the
notice for any or all of the following purposes:
(a) to ensure that the person does not
engage in conduct of that kind in the future;
(b) to ensure that the person does not
omit to perform acts of that kind in the future;
(c) to remedy, or make good, any
adverse consequences of the conduct, or the omission, on the health or
continued availability of Basin water resources.
(3) Without limiting paragraph (2)(c),
the Authority may direct the person under subsection (2) not to exercise
some or all of:
(a) the water access rights; or
(b) the irrigation rights; or
(c) the water delivery rights;
that the person holds.
(4) A notice under subsection (2) must:
(a) set out the name of the person to
whom the notice is given; and
(b) set out brief details of the
alleged contravention, likely contravention, conduct, likely conduct, omission
or likely omission; and
(c) contain a statement about the
effect of section 166; and
(d) if it is given in relation to an
alleged contravention—be given less than 6 years after contravention.
(5) The Authority may give a person a notice
under subsection (2) in relation to conduct, or an omission, even if that
conduct or omission constitutes an offence against, or a contravention of, a
law of a State or a Territory.
166
Breach of enforcement notice—civil penalty provision
(1) A person must comply with a notice under
section 165.
Civil penalty: 600 penalty units.
(2) A person who contravenes subsection (1)
commits a separate contravention of that subsection in respect of each day (including
a day of the making of a relevant civil penalty order or any subsequent day)
during which the contravention continues.
167
Discharge or variation of enforcement notices
The Authority may vary or revoke a
notice given to a person under section 165. The variation or revocation
must be by written notice given to the person.
Division 8—Liability of executive officers of corporations
168
Civil penalties for executive officers of bodies corporate
(1) If:
(a) a body corporate contravenes a
civil penalty provision; and
(b) an executive officer of the body
knew that, or was reckless or negligent as to whether, the contravention would
occur; and
(c) the officer was in a position to
influence the conduct of the body in relation to the contravention; and
(d) the
officer failed to take all reasonable steps to prevent the contravention;
the officer contravenes this subsection.
(2) Subsection (1) is a civil penalty
provision.
(3) Under section 147, a Court may order
a person contravening subsection (1) to pay a pecuniary penalty not more
than the pecuniary penalty the Court could order an individual to pay for
contravening the civil penalty provision contravened by the body corporate.
169
Did an executive officer take reasonable steps to prevent contravention?
(1) For the purposes of section 168, in
determining whether an executive officer of a body corporate failed to take all
reasonable steps to prevent a contravention to which this Part applies, a Court
is to have regard to:
(a) what action (if any) the officer
took directed towards ensuring the following (to the extent that the action is
relevant to the contravention):
(i) that the body arranges
regular professional assessments of the body’s compliance with this Act, the
regulations and the water charge rules;
(ii) that the body
implements any appropriate recommendations arising from such an assessment;
(iii) that the body’s
employees, agents and contractors have a reasonable knowledge and understanding
of the requirements to comply with this Act, the regulations, the water charge
rules and the water market rules in so far as those requirements affect the
employees, agents or contractors concerned; and
(b) what action (if any) the officer
took when he or she became aware that the body was contravening:
(i) this Act; or
(ii) the regulations; or
(iii) the water charge rules;
or
(iv) the water market rules.
(2) This section does not, by implication,
limit the generality of section 168.
Division 9—Conduct of directors, employees and agents
170 Conduct
of directors, employees and agents
Bodies corporate—conduct
(1) Any conduct engaged in on behalf of a
body corporate:
(a) by a director, employee or agent
of the body corporate within the scope of his or her actual or apparent
authority; or
(b) by any other person at the
direction or with the consent or agreement (whether express or implied) of a
director, employee or agent of the body corporate, where the giving of the
direction, consent or agreement is within the scope of the actual or apparent authority
of the director, employee or agent;
is to be taken, for the purposes of this Act, to have been
engaged in also by the body corporate unless the body corporate establishes
that the body corporate took reasonable precautions and exercised due diligence
to avoid the conduct.
Bodies corporate—state of mind
(2) If, for the purposes of this Act, it is
necessary to establish the state of mind of a body corporate in relation to
particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a person as mentioned in paragraph (1)(a) or (b); and
(b) that the person had that state of
mind.
Persons other than bodies corporate—conduct
(3) Any conduct engaged in on behalf of a
person other than a body corporate:
(a) by an employee or agent of the
person within the scope of his or her actual or apparent authority; or
(b) by any other person at the
direction or with the consent or agreement (whether express or implied) of an
employee or agent of the first‑mentioned person, where the giving of the
direction, consent or agreement is within the scope of the actual or apparent
authority of the employee or agent;
is to be taken, for the purposes of this Act, to have been
engaged in also by the first‑mentioned person unless the first‑mentioned
person establishes that the first‑mentioned person took reasonable
precautions and exercised due diligence to avoid the conduct.
Persons other than bodies corporate—state of mind
(4) If, for the purposes of this Act, it is
necessary to establish the state of mind of a person other than a body
corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a person as mentioned in paragraph (3)(a) or (b); and
(b) that the person had that state of
mind.
Reasonable precautions
(5) For the purposes of subsection (1)
or (3), in determining whether a body corporate or other person took reasonable
precautions and exercised due diligence to avoid particular conduct, a Court
must have regard to what steps (if any) the body or person took directed
towards ensuring the following (to the extent that the steps are relevant to
the conduct):
(a) that the body or person arranges
regular professional assessments of the body’s or person’s compliance with this
Act, the regulations and the water charge rules;
(b) that the body or person implements
any appropriate recommendations arising from such an assessment;
(c) that the directors of the body, or
the employees or agents of the body or person, have a reasonable knowledge and
understanding of the requirements to comply with this Act, the regulations, the
water charge rules and the water market rules in so far as those requirements
affect the directors, employees or agents concerned.
Meaning of state of mind
(6) A
reference in subsection (2) or (4) to the state of mind of a
person includes a reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
Meaning of director
(7) A reference in this section to a director
of a body corporate includes a reference to a constituent member of a body
corporate incorporated for a public purpose by a law of the Commonwealth, of a
State or of a Territory.
Meaning of engage in conduct
(8) A reference in this section to engaging
in conduct includes a reference to failing or refusing to engage in
conduct.
Part 9—Murray‑Darling Basin Authority (administrative
provisions)
Division 1—Authority’s establishment, functions, powers and liabilities
171
Establishment
The Murray‑Darling Basin Authority
is established by this section.
172
Authority’s functions
Authority’s functions
(1) The Authority has the following
functions:
(a) such functions as are conferred on
the Authority by:
(i) Part 2 (Management
of Basin water resources); and
(ii) Part 5 (Murray‑Darling
Basin Water Rights Information Service); and
(iii) Part 10 (Murray‑Darling
Basin Authority (special powers));
(b) to measure, monitor and record the
quality and quantity of the Basin water resources, including measuring,
monitoring and recording:
(i) flows of surface water
forming part of the Basin water resources; and
(ii) levels and pressures
of ground water forming part of the Basin water resources; and
(iii) inflows to river flow control
works; and
(iv) volumes held within
river flow control works; and
(v) the taking of water
from the Basin water resources; and
(vi) interception activity;
Note: The Authority may adopt Commission and Basin
State records, and request the Commission and Basin States to take these
measurements etc. (see subsection (2)).
(c) to measure, monitor and record the
condition of water‑dependent ecosystems associated with the Basin water
resources;
Note: The Authority may adopt Commission and Basin
State records and request the Commission and Basin States to take these
measurements etc. (see subsection (2)).
(d) to support, encourage and conduct
research and investigations about the Basin water resources, including research
and investigations about:
(i) using the Basin water
resources in an equitable, efficient and sustainable manner; and
(ii) conserving inflows to,
and other sources of, the Basin water resources; and
(iii) improving the quality
of the Basin water resources; and
(iv) improving the condition
of water‑dependent ecosystems connected with the Basin water resources;
and
(v) the desirability and
practicality of measures that could help achieve any of the objectives set out
in the above subparagraphs;
(e) to develop, or assist the
development of, measures for the equitable, efficient and sustainable use of
the Basin water resources (including measures for the delivery of environmental
water);
(f) to implement, or coordinate the
implementation of, measures developed in accordance with paragraph (e);
(g) to make recommendations to the
Basin States, and agencies of the Basin States, about any matter (including the
carrying out of measures by that Basin State or agency) that the Authority
considers could affect the quality or quantity of the Basin water resources;
(h) to collect, analyse and interpret
information about the Basin water resources and water‑dependent
ecosystems;
(i) to disseminate information about
the Basin water resources, and water‑dependent ecosystems, to the extent
that the Authority considers it desirable to do so;
(j) to engage and educate the
Australian community about the Basin water resources;
(k) such other functions as are
conferred on the Authority by this Act, the regulations or by or under any
other law of the Commonwealth;
(l) if the Minister consents—such
other functions as are conferred on the Authority by or under any law of a
State;
(m) if the Minister requests advice
about a matter relating to any of the above functions—to give the advice;
(n) to do anything incidental or
conducive to the performance of any of the above functions.
Authority may adopt Basin State measurements and
request Basin States to take measurements etc.
(2) Without limiting paragraph (1)(b) or
(c), in performing its functions the Authority may:
(a) adopt measurements, records and
conclusions made by the Murray‑Darling Basin Commission, a Basin State or
an agency of a Basin State; or
(b) request the Murray‑Darling
Basin Commission to carry out any measuring, monitoring or recording that the
Authority considers necessary; or
(c) request a Basin State to carry out
any measuring, monitoring or recording within the State’s geographical limits
that the Authority considers necessary.
Informing others of paragraph (1)(g)
recommendations
(3) The Authority must, as soon as
practicable, inform the Minister and the Basin Officials Committee of any
recommendation made under paragraph (1)(g).
Varying and revoking consents and requests
(4) The Minister may vary or revoke the
following:
(a) a consent given under paragraph (1)(l);
(b) a request made under paragraph (1)(m).
Consents and requests not legislative instruments
(5) Neither of
the following is a legislative instrument:
(a) a consent given under paragraph (1)(l);
(b) a request made under paragraph (1)(m).
173
Authority’s powers
(1) The Authority has the power to do all
things necessary or convenient to be done for or in connection with the
performance of its functions, other than the power:
(a) to acquire, hold and dispose of
real and personal property; or
(b) to enter into contracts; or
(c) to lease the whole or any part of
any land or building for the purposes of the Authority.
Note 1: The Authority Chair may acquire, hold and
dispose of property, and enter into leases and contracts, on behalf of the
Commonwealth for the benefit of the Authority (see section 44 of the Financial
Management and Accountability Act 1997 as it applies in relation to the
Authority as an Agency).
Note 2: Acquisitions of interests in land will be done
in accordance with the Lands Acquisition Act 1989 and the Financial
Management and Accountability Act 1997.
(2) A right to sue is taken not to be
personal property for the purposes of paragraph (1)(a).
174
Authority’s financial liabilities are Commonwealth liabilities
(1) Any financial liabilities of the
Authority are taken to be liabilities of the Commonwealth.
(2) For the purposes of this section:
financial liability means a liability to pay
a person an amount, where the amount, or the method for working out the amount,
has been determined.
175
Minister may give directions to Authority
(1) The Minister may give directions to the
Authority about the performance of the Authority’s functions.
Note: Other provisions enable the Minister to give
directions about particular matters, for example, in relation to the making of
the Basin Plan (see subparagraph 44(3)(b)(ii)). Those other powers to give
directions may be subject to limitations (for example, see subsection 44(5)).
(2) However, the Authority is not subject to
direction under subsection (1) in relation to any of the following:
(a) a determination by the Authority
under paragraph 83(2)(b);
(b) its powers under Division 3 (information
gathering) of Part 10;
(c) the monitoring of compliance with,
or the investigation of possible contraventions of, a provision of:
(i) Part 2 or
regulations made for the purposes of Part 2; or
(ii) Division 3 of
Part 10;
(d) its powers under Part 8 (enforcement).
(3) The Authority must comply with a
direction under subsection (1).
(4) A direction made under subsection (1)
is a legislative instrument, but neither section 42 (disallowance) nor
Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies
to the direction.
Division 2—Authority’s constitution and membership
Subdivision A—Authority’s constitution
176
Authority’s constitution
(1) The Authority:
(a) is a body corporate with perpetual
succession; and
(b) must have a seal; and
(c) may sue and be sued in its
corporate name.
(2) The seal of the Authority is to be kept
in such custody as the Authority directs and must not be used except as
authorised by the Authority.
(3) All courts, judges and persons acting
judicially must:
(a) take judicial notice of the
imprint of the seal of the Authority appearing on a document; and
(b) presume that the document was duly
sealed.
Subdivision B—Authority’s membership
177
Authority’s membership
The Authority consists of the following
members:
(a) a Chair;
(b) 4 other members.
Note: Section 18B of the Acts Interpretation
Act 1901 deals with the title of the Chair.
178
Appointment of Authority members
Appointment by instrument
(1) Each
Authority member is to be appointed by the Governor‑General by written
instrument.
Note: For re‑appointment, see subsection
33(4A) of the Acts Interpretation Act 1901.
Eligibility for appointment
(2) To be eligible for appointment as an
Authority member, an individual must, at the time of appointment:
(a) have a high level of expertise in
one or more fields relevant to the Authority’s functions; and
(b) not be a member of the governing
body of a relevant interest group.
(3) For the purposes of this Act, a field
relevant to the Authority’s functions includes each of the following:
(a) water resource management;
(b) hydrology;
(c) freshwater ecology;
(d) resource economics;
(e) irrigated agriculture;
(f) public sector governance;
(g) financial management.
(4) For the purposes of this Act, an
individual is a member of the governing body of a relevant interest group
if:
(a) the individual is one of the
persons involved in the management of another entity; and
(b) that other entity (whether
incorporated or otherwise):
(i) represents one or more
classes of holders of water access rights, water delivery rights or irrigation
rights; or
(ii) advocates managing the
Basin water resources in a particular way.
Basis of appointments
(5) The Authority Chair must be appointed on
a full‑time basis.
(6) An Authority member (other than the
Authority Chair) must be appointed on a part‑time basis.
Validation
(7) The appointment of an individual as an
Authority member is not invalid because of a defect or irregularity in
connection with the individual’s appointment.
179
Period of appointment for Authority members
An Authority member holds office for the
period specified in his or her instrument of appointment. The period must not
exceed 4 years.
Note: For re‑appointment, see subsection
33(4A) of the Acts Interpretation Act 1901.
180
Acting Authority members
Acting Authority Chair
(1) The Minister may appoint an Authority
member to act as the Authority Chair:
(a) during a vacancy in the office of
the Authority Chair, whether or not an appointment has previously been made to
the office; or
(b) during any period, or during all
periods, when the Authority Chair:
(i) is absent from duty or
Australia; or
(ii) is, for any reason,
unable to perform the duties of the office.
Acting Authority member (other than Authority Chair)
(2) The Minister may appoint an individual to
act as an Authority member (other than the Authority Chair):
(a) during a vacancy in the office of
an Authority member (other than the Authority Chair), whether or not an
appointment has previously been made to the office; or
(b) during any period, or during all
periods, when an Authority member (other than the Authority Chair):
(i) is absent from duty or
Australia; or
(ii) is, for any reason,
unable to perform the duties of the office.
Eligibility
(3) An individual is not eligible for
appointment to act as an Authority member (other than the Authority Chair)
unless the individual has a high level of expertise in one or more fields
relevant to the Authority’s functions.
Note 1: Fields relevant to the Authority’s functions
include those set out in subsection 178(3).
Note 2: An individual is only eligible for appointment
to act as the Authority Chair if the individual is already an Authority member
(see subsection (1)). This means either subsection 178(2) or this
subsection must already be satisfied in relation to the individual.
Note 3: An individual appointed to act in a vacant
office must not continue to act for more than 12 months (see paragraph
33A(1)(ba) of the Acts Interpretation Act 1901).
(4) An individual is not eligible for
appointment to act as an Authority member (other than the Authority Chair) if
the individual is a member of the governing body of a relevant interest group.
Note: For when an individual is a member of the
governing body of a relevant interest group, see subsection 178(4).
Validation
(5) Anything done by or in relation to an
individual purporting to act under an appointment is not invalid merely
because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Note: See section 33A of the Acts
Interpretation Act 1901.
Subdivision C—Terms and conditions for Authority members
181
Remuneration
(1) An Authority member is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the
Authority member is to be paid the remuneration that is prescribed in the
regulations.
(2) An Authority member is to be paid the
allowances that are prescribed in the regulations.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
182
Standing obligation to disclose interests
(1) An Authority member must disclose any
interest the member has if that interest could conflict with the proper
performance of the functions of the member’s office. Disclosure is required
whether or not there is any particular matter under consideration that gives
rise to an actual conflict of interest.
Note: The member must also disclose the interest
under section 183 if the interest is in a matter being considered or about
to be considered by the Authority.
(2) The disclosure must be by written notice
given to the Minister as soon as practicable after the member becomes aware of
the potential for conflict of interest.
(3) Subsection (1) applies to interests:
(a) whether direct or indirect, and
whether or not pecuniary; and
(b) whether acquired before or after
the member’s appointment.
183
Obligation to disclose interests before considering a particular matter
(1) If:
(a) an Authority member has an
interest in a matter being considered or about to be considered by the
Authority; and
(b) the interest is an interest that
could conflict with the proper performance of the functions of the member’s
office, as those functions give the member a role in deciding a matter;
the member must disclose the nature of the interest to a
meeting of the Authority.
(2) The disclosure must be made as soon as
possible after the relevant facts have come to the member’s knowledge.
(3) The disclosure must be recorded in the
minutes of the meeting of the Authority.
(4) Unless the Authority otherwise
determines, the member:
(a) must not be present during any
deliberation by the Authority on the matter; and
(b) must not take part in any decision
of the Authority with respect to the matter.
(5) For the purposes of making a
determination under subsection (4), the member:
(a) must not be present during any
deliberation of the Authority for the purpose of making the
determination; and
(b) must not take part in making the
determination.
(6) A determination under subsection (4)
must be recorded in the minutes of the meeting of the Authority.
(7) Subsection (1) applies to interests:
(a) whether direct or indirect, and
whether or not pecuniary; and
(b) whether acquired before or after
the member’s appointment.
184
Chair must keep Minister informed
(1) The Authority Chair must:
(a) keep the Minister informed of the
general operations of the Authority in respect of the performance of the
Authority’s functions; and
(b) give the Minister such reports,
documents and information in relation to those operations as the Minister
requires.
(2) The Authority Chair must comply with requirements
under paragraph (1)(b) within the time limits set by the Minister.
185
Outside employment
The Authority Chair must not engage in
paid employment outside the duties of his or her office without the Minister’s
approval.
186
Member of the governing body of a relevant interest group
An Authority member must not be a member
of the governing body of a relevant interest group.
Note: For when an individual is a member of the
governing body of a relevant interest group, see subsection 178(4).
187
Leave of absence
(1) The Authority Chair has the recreation
leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Authority
Chair leave of absence, other than recreation leave, on the terms and
conditions as to remuneration or otherwise that the Minister determines.
(3) The Authority Chair may grant leave of
absence to any other Authority member on the terms and conditions that the
Authority Chair determines.
188
Resignation
(1) An Authority member may resign his or her
appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day
it is received by the Governor‑General or, if a later day is specified in
the resignation, on that later day.
189
Termination of appointment
(1) The Governor‑General may terminate
the appointment of an Authority member for misbehaviour or physical or mental
incapacity.
(2) The Governor‑General may terminate
the appointment of an Authority member if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or
her creditors; or
(iv) makes an assignment of
his or her remuneration for the benefit of his or her creditors; or
(b) the Minister is satisfied that the
performance of the member has been unsatisfactory; or
(c) if the member is the Authority
Chair—the member is absent, except on leave of absence, for 14 consecutive days
or for 28 days in any 12 consecutive months; or
(d) if the member is not the Authority
Chair—the member is absent, except on leave of absence, from 3 consecutive
meetings of the Authority; or
(e) if the member is the Authority
Chair—the member engages, except with the Minister’s approval, in paid
employment outside the duties of his or her office; or
(f) the member fails to comply with
section 186; or
(g) the member fails, without
reasonable excuse, to comply with section 182 or 183.
190
Other terms and conditions
An Authority member holds office on the
terms and conditions (if any) in relation to matters not covered by this Act
that are determined by the Governor‑General.
Division 3—Decision‑making and delegation by Authority
Subdivision A—Meetings
191
Holding of meetings
(1) The Authority is to hold such meetings as
are necessary for the performance of its functions.
(2) The Authority Chair:
(a) may convene a meeting at any time;
and
(b) must convene a meeting within 30
days after receiving a written request from the Minister or from at least 2 other
Authority members; and
(c) must convene at least 9 meetings
each financial year.
192
Presiding at meetings
(1) The Authority Chair presides at all
meetings at which he or she is present.
(2) If the Authority Chair is not present at
a meeting, the Authority members present must appoint one of themselves to
preside.
193
Quorum
(1) At a meeting of the Authority, 4
Authority members constitute a quorum.
(2) However, if:
(a) section 183 prevents an
Authority member from participating in the deliberations or decisions of the
Authority in relation to a particular matter; and
(b) when the member leaves the meeting
concerned there is no longer a quorum present;
the remaining Authority members at the meeting constitute
a quorum for the purpose of any deliberation or decision at that meeting in
relation to that matter.
194
Decisions at meetings etc.
(1) At a meeting of the Authority, a question
is decided by a majority of the votes of the Authority members present and
voting.
(2) The person presiding at a meeting has a
deliberative vote and, in the event of an equality of votes, also has a casting
vote.
195
Conduct of meetings
(1) The Authority may, subject to this
Subdivision, regulate proceedings at its meetings as it considers appropriate.
Note: Section 33B of the Acts Interpretation
Act 1901 provides for participation in meetings by telephone etc.
(2) The regulations may regulate proceedings
at meetings of the Authority.
196
Minutes
The Authority must keep minutes of its
meetings.
Subdivision B—Decisions without meetings
197
Decisions without meetings
(1) A decision is taken to have been made at
a meeting of the Authority if:
(a) without meeting, a majority of the
Authority members indicate agreement with the proposed decision in accordance with
the method determined by the Authority under subsection (2); and
(b) all the Authority members were
informed of the proposed decision, or reasonable efforts were made to inform
all the Authority members of the proposed decision.
(2) Subsection (1) applies only if the
Authority:
(a) has determined that it applies;
and
(b) has determined the method by which
Authority members are to indicate agreement with proposed decisions.
(3) Paragraph (1)(a) does not apply to
an Authority member who is prevented by section 183 from deliberating on
the proposed decision.
198
Record of decisions
The Authority must keep a record of
decisions made in accordance with section 197.
Subdivision C—Delegation
199
Delegation by Authority
Delegation by Authority
(1) The Authority may, by writing, delegate
any or all of its functions and powers to:
(a) an Authority member; or
(b) an SES employee, or acting SES
employee, who is a member of the Authority staff; or
(c) any other member of the Authority
staff; or
(d) an individual whose services are
made available to the Authority under section 207.
(2) The Authority may, by writing, delegate
any or all of its functions and powers to a person who holds, or acts in, an
office or position:
(a) with a State or an authority of a
State; and
(b) at a level equivalent to that of
an SES employee;
if the State or authority agrees to the delegation.
(3) A delegate under subsection (1) or
(2) must comply with any written directions of the Authority.
Sub‑delegation by senior staff of a State or
State authority
(4) A person (the delegate)
delegated a function or power under subsection (2) may, by writing, sub‑delegate
that function or power to another officer or employee (the sub‑delegate)
of the State or authority concerned.
(5) A sub‑delegate must comply with any
written directions of the delegate.
(6) If the delegate is subject to a direction
in relation to the performance of the function or the exercise of the power sub‑delegated
under subsection (4), the delegate must give a corresponding direction to
the sub‑delegate.
(7) Sections 34AA, 34AB and 34A of the Acts
Interpretation Act 1901 apply to a sub‑delegation in the same way as
they apply to a delegation.
200
Limits on how some functions and powers can be delegated
(1) Section 199 does not apply to a
function or power under Subdivision E, F or G of Division 1 of Part 2.
(2) Paragraphs 199(1)(c) and (d) and
subsections 199(4) to (7) do not apply to the power to appoint an authorised
officer under section 217.
(3) Paragraphs 199(1)(c) and (d) and
subsection 199(2) do not apply to a power under section 238 or Part 8.
Subdivision D—Advisory committees
201
Basin Officials Committee
Establishment
(1) The Authority must, by writing, establish
an advisory committee, to be known as the Basin Officials Committee.
Functions
(2) The Basin Officials Committee has the
following functions:
(a) to advise the Authority about the
performance of the Authority’s functions, including advising about:
(i) engaging the Basin
States in the preparation of the proposed Basin Plan and proposed amendments of
the Basin Plan; and
(ii) matters referred to
the Committee by the Authority;
(b) to facilitate cooperation and
coordination between the Commonwealth, the Authority and the Basin States in
managing the Basin water resources;
(c) to facilitate agreement between
the Commonwealth and the Basin States about the funding of works, and other
measures, for the equitable, efficient and sustainable use of the Basin water
resources;
(d) to facilitate agreement between
the Commonwealth and the Basin States about the management of natural resources
relevant to the management of the Basin water resources.
Members of the Committee
(3) The Basin Officials Committee consists of
a Chair and 6 other members as the Authority appoints from time to time under
subsection 204(1). The Committee Chair must be an Authority member.
(4) The Authority must nominate the Committee
Chair. The Commonwealth and each Basin State must each nominate one of the
other Committee members.
(5) When an individual (the leaving
member) ceases to be a Committee member, a nomination for the filling
of the vacancy must be made by the entity that nominated the leaving member.
Status of instruments
(6) An instrument under subsection (1)
is not a legislative instrument.
202
Basin Community Committee
(1) The Authority must, by writing, establish
an advisory committee, to be known as the Basin Community Committee.
Committee’s functions
(2) The Basin Community Committee’s function
is to advise the Authority about the performance of the Authority’s functions,
including advising about:
(a) engaging the community in the
preparation of each draft Basin Plan; and
(b) community matters relating to the
Basin water resources; and
(c) matters referred to the Committee
by the Authority.
Subcommittees
(3) The Basin Community Committee must
establish:
(a) an irrigation subcommittee; and
(b) an environmental water
subcommittee;
and may establish other subcommittees.
Membership
(4) The Basin Community Committee consists of
a Chair and up to 16 other members as the Authority appoints from time to time
under subsection 204(1). Any member of the Committee may be the Committee
Chair.
Note: For eligibility for appointment, see
subsection 204(3).
(5) The Basin Community Committee’s
membership must include:
(a) at least one Authority member; and
(b) at least 8 individuals who are
water users or representatives of one or more water users.
(6) The Authority must call for expressions
of interest from the public before appointing a member of the Committee under
subsection 204(1).
Water users etc.
(7) In this section:
water user means a person who:
(a) is engaged in irrigated
agriculture; or
(b) is engaged in environmental water
management; or
(c) uses water for industrial
purposes; or
(d) uses stock and domestic water.
(8) An instrument under subsection (1)
is not a legislative instrument.
203
Other advisory committees
(1) The Authority may, by writing, establish
other advisory committees to assist it in performing any of its functions.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) An advisory committee established under subsection (1)
consists of such individuals as the Authority from time to time appoints under
subsection 204(1).
(3) An instrument under subsection (1)
is not a legislative instrument.
204
Appointments to advisory committees
(1) Each member of an advisory committee is
to be appointed by the Authority by written instrument.
Note: For re‑appointment, see subsection
33(4A) of the Acts Interpretation Act 1901.
(2) To be eligible for appointment as a
member of the Basin Officials Committee, an individual must be nominated in
accordance with subsection 201(4) or (5).
(3) To be eligible for appointment as a
member of the Basin Community Committee, an individual must have a high level
of expertise or interest in:
(a) community, indigenous or local
government matters relevant to the Basin water resources; or
(b) irrigated agriculture; or
(c) environmental water management.
Note: The Authority must have called for expressions
of interest from the public before appointing a member of the Basin Community
Committee (see subsection 202(6)).
(4) An instrument of appointment may
determine the terms and conditions of the appointment, including remuneration
and allowances.
(5) The Authority may, in writing, terminate
the appointment at any time.
(6) An appointee may resign his or her
appointment by giving the Authority a written resignation. The resignation
takes effect on the day it is received by the Authority or, if a later day is
specified in the resignation, on that later day.
205
Procedural matters
(1) The Authority may give an advisory
committee written directions (procedural directions) as to:
(a) the way in which the committee is
to carry out its functions; and
(b) procedures to be followed in
relation to meetings.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) Before giving a procedural direction
about a matter to the Basin Officials Committee or the Basin Community
Committee, the Authority must have regard to any recommendations of that
Committee about the matter.
(3) A procedural direction is not a
legislative instrument.
Division 4—Authority’s staff etc.
206
Staff
(1) The staff of the Authority must be
persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the Authority Chair and the
Authority staff together constitute a Statutory Agency; and
(b) the Authority Chair is the Head of
that Statutory Agency.
207
Persons assisting Authority
The Authority may also be assisted:
(a) by employees of Agencies (within
the meaning of the Public Service Act 1999); or
(b) by officers and employees of a
State; or
(c) by officers and employees of authorities
of the Commonwealth or a State;
whose services are made available to the Authority in
connection with the performance of any of its functions.
Note: The Authority Chair may also engage
consultants on behalf of the Commonwealth for the benefit of the Authority (see
section 44 of the Financial Management and Accountability Act 1997 as
it applies in relation to the Authority as an Agency).
208
Chair not to be directed about certain matters
The Authority Chair is not subject to
direction by the Authority in relation to the Chair’s performance of functions,
or exercise of powers, under:
(a) the Financial Management and
Accountability Act 1997; or
(b) the Public Service Act 1999;
in relation to the Authority.
Division 5—Finance and reporting requirements
Subdivision A—Murray‑Darling Basin Special Account
209
Murray‑Darling Basin Special Account
(1) The Murray‑Darling Basin Special
Account is established by this section.
(2) The Account is a Special Account for the
purposes of the Financial Management and Accountability Act 1997.
210
Credits to the Account
There may be credited to the Account
amounts equal to the following:
(a) all money appropriated by the
Parliament for the purposes of the Account;
(b) amounts that are paid by a Basin
State to the Commonwealth for the purpose of the performance of the
Authority’s functions;
(c) amounts that the Commonwealth
agrees to allocate for that purpose;
(d) fees paid to the Commonwealth in
accordance with section 212;
(e) amounts received by the
Commonwealth in relation to property paid for with amounts debited from the
Account;
(f) amounts of any gifts given or
bequests made for the purposes of the Account.
Note: An Appropriation Act provides for amounts to
be credited to a Special Account if any of the purposes of the Account is a
purpose that is covered by an item in the Appropriation Act.
211
Purposes of the Account
(1) This section sets out the purposes of the
Account.
(2) Amounts standing to the credit of the
Account may be debited for the following purposes:
(a) in payment or discharge of the
costs, expenses and other obligations incurred by the Commonwealth in the
performance of the Authority’s functions;
(b) in payment of any remuneration and
allowances payable to any person under this Act;
(c) meeting the expenses of
administering the Account.
Subdivision B—Authority may charge fees
212
Fees
(1) The Authority may charge fees for
services it provides in performing its functions.
(2) However, the Authority must not charge a
fee specified in regulations made for the purposes of this subsection unless:
(a) the ACCC has advised that the fee
is reasonable; and
(b) the Authority has published the
advice on its website.
Note: For specification by class, see subsection
13(3) of the Legislative Instruments Act 2003.
(3) In giving advice under subsection (2),
the ACCC must take into account the water charging objectives and principles
and any additional matters specified in regulations made for the purposes of
this subsection as matters relevant to the fee concerned.
(4) Subsections (2) and (3) have effect
subject to the water charge rules.
Note: Water charge rules can affect the charging of
fees by the Authority (see section 92).
(5) A fee:
(a) must not be such as to amount to
taxation; and
(b) is payable to the Commonwealth.
Subdivision C—Exemption from taxation and charges etc.
213
Exemption from taxation and charges etc.
(1) To avoid doubt, for the purposes of
section 50‑25 of the Income Tax Assessment Act 1997, the
Authority is taken to be a public authority constituted under an Australian
law.
Note: This means that the Authority is exempt from
income tax.
(2) No rate, tax, charge or fee is payable
under a law of a State in respect of any act or thing done by or on behalf of:
(a) the Authority; or
(b) the Commonwealth for the benefit
of the Authority.
Subdivision D—Reporting requirements
214
Annual report
Annual report to be given to Minister
(1) The Authority Chair must, as soon as
practicable after 30 June in each financial year, prepare and give to the
Minister a report on the Authority’s operations during that year.
Contents of annual report
(2) The Authority Chair must include in the
report the following:
(a) an analysis of the effectiveness
of the Basin Plan;
(b) particulars of all directions
given during the year by the Minister under section 175;
(c) the financial statements required
by section 49 of the Financial Management and Accountability Act 1997;
(d) an audit report on those
statements under section 57 of the Financial Management and
Accountability Act 1997.
Annual report to be tabled in Parliament
(3) The Minister must cause a copy of each
annual report to be tabled in each House of the Parliament within 15 sitting
days of that House after the day on which the Minister receives the report.
Annual report to be given to Basin States
(4) The Minister must cause a copy of each
annual report to be given to the relevant State Minister for each of the Basin States
on or before the day the report is first tabled in a House of the Parliament.
Division 6—Confidentiality
215
Confidentiality
Authority must protect confidential information
(1) The Authority must take all reasonable
measures to protect from unauthorised use or disclosure information:
(a) that is confidential information;
and
(b) that is given to the Authority in,
or in connection with, the performance of its functions or the exercise of its
powers.
Authorised uses and disclosures
(2) Disclosing summaries of information or
statistics derived from information is authorised use and disclosure of the
information provided that information relating to any particular person cannot
be found out from those summaries or statistics.
(3) For the purposes of subsection (1),
the disclosure of information as required or permitted by a law of the
Commonwealth or a prescribed law of a State is taken to be authorised use and
disclosure of the information.
(4) Disclosing information to either of the
following is authorised use and disclosure of the information:
(a) the Minister;
(b) the Secretary of the Department
for the purpose of advising the Minister, or an officer authorised for that
purpose.
(5) For the purposes of subsection (1),
the disclosure of information by a person for the purposes of:
(a) performing the person’s functions
as:
(i) an Authority member;
or
(ii) a member of the
Authority staff; or
(iii) an Authority delegate;
or
(iv) an authorised officer;
or
(v) a person who is acting
as an Authority member or as a member of the Authority staff; or
(vi) a person who is
authorised to perform or exercise a function or power of, or on behalf of, the
Authority; or
(b) the performance of functions or
services by the person by way of assisting an Authority delegate;
is taken to be authorised use and disclosure of the
information.
(6) Regulations made for the purposes of this
subsection may specify uses of information and disclosures of information that
are authorised uses and authorised disclosures for the purposes of this
section.
(7) Nothing in any of subsections (2),
(3), (4) and (5), and in regulations made for the purposes of subsection (6),
limits:
(a) anything else in any of those
subsections or in those regulations; or
(b) what may otherwise constitute, for
the purposes of subsection (1), authorised use or disclosure of
information.
Part 10—Murray‑Darling Basin Authority (special powers)
Division 1—Application of this Part
216
Application of this Part limited to certain legislative powers
(1) This Part has effect to the extent to
which it is a law with respect to one or more of the following:
(a) external affairs (within the
meaning of paragraph 51(xxix) of the Constitution);
(b) meteorological observations
(within the meaning of paragraph 51(viii) of the Constitution);
(c) census and statistics (within the
meaning of paragraph 51(xi) of the Constitution);
(d) weights and measures (within the
meaning of paragraph 51(xv) of the Constitution);
(e) trade and commerce between the
States or between a State and a Territory (within the meaning of paragraph
51(i) of the Constitution);
(f) postal, telegraphic, telephonic
and other like services (within the meaning of paragraph 51(v) of the
Constitution).
(2) This Part has effect to the extent to
which it confers rights or imposes obligations, or relates to the conferral of
rights or the imposition of obligations, on constitutional corporations.
(3) This Part has effect to the extent to
which it relates to premises:
(a) owned or occupied by constitutional
corporations; or
(b) in a Territory or a referring
State.
(4) This Part has effect to the extent to
which it relates to information held:
(a) by constitutional corporations; or
(b) in a Territory or a referring
State.
(5) Subsections (1),
(2), (3) and (4):
(a) have effect independently of each
other; and
(b) do not limit the operation that
this Part validly has apart from this section.
(6) For the purposes of subsection (4),
information is held if it is in a person’s possession, custody or
control (whether held electronically or in any other form).
Division 2—Entry onto land
etc.
Subdivision A—Authorised officers
217
Appointment of authorised officers
(1) The Authority may, by writing, appoint
one or more individuals to be authorised officers for the purposes of
exercising the powers of an authorised officer under this Division.
(2) To be eligible for appointment as an
authorised officer, an individual must:
(a) be any of the following:
(i) an APS employee;
(ii) an individual whose
services are made available to the Authority under section 207;
(iii) an individual who
holds an office or position with a State or an authority of a State;
(iv) an individual whose
services have been acquired by the Authority under contract; and
(b) have a high level of expertise in
one or more fields relevant to the performance of an authorised officer’s
duties under this Division.
(3) The Authority may appoint a person
mentioned in subparagraph (2)(a)(iii) only if the State or authority
agrees to the appointment.
(4) In exercising powers or performing
functions as an authorised officer, an authorised officer must comply with any
written directions of the Authority.
218
Identity cards
(1) The Authority must issue an identity card
to an authorised officer in the form specified in the regulations. The identity
card must contain a recent photograph of the authorised officer.
(2) A person
commits an offence if:
(a) the person has been issued with an
identity card; and
(b) the person ceases to be an
authorised officer; and
(c) the person does not, immediately
after so ceasing, return the identity card to the Authority.
Penalty: 1 penalty unit.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(3) An authorised officer must carry the
identity card at all times when exercising powers or performing functions as an
authorised officer.
Subdivision B—Powers to enter land etc. other than for compliance purposes
219
When authorised officers can enter premises
(1) An authorised officer may enter premises
in accordance with this Subdivision if the officer reasonably believes this is
necessary for the performance of any of the Authority’s functions:
(a) conferred by:
(i) Part 2 (Management
of Basin water resources); or
(ii) paragraph 172(1)(b) or
(c); or
(b) referred to in regulations made
for the purposes of this paragraph.
Note: Entry is not permitted to residential premises
without an occupier’s consent (see paragraph 220(1)(b)).
(2) This Subdivision does not extend to
entering premises for the purposes of:
(a) monitoring compliance with Part 2
or regulations made for the purposes of Part 2; or
(b) searching for evidential material.
Note: Subdivision C deals with entering premises for
compliance purposes.
220
Obligations of authorised officers before entering premises
(1) An authorised officer is not authorised
to enter premises under section 219 unless:
(a) the officer has given reasonable
written notice to the occupiers of the officer’s intention to enter the
premises; and
(b) if the premises is residential
premises—an occupier of the premises has voluntarily consented to the entry;
and
(c) the officer has shown his or her
identity card if required by an occupier; and
(d) the officer has given the occupiers
a written statement of the occupiers’ rights and obligations in relation to the
officer’s proposed entry on to the premises.
Entry in an emergency or with consent
(2) Paragraph (1)(a) does not apply:
(a) in an emergency; or
(b) if an occupier of the premises
voluntarily consents to the authorised officer entering the premises.
Informed consent
(3) Before obtaining the consent of a person
for the purposes of paragraph (1)(b) or (2)(b), the authorised officer
must inform the person that he or she may refuse consent.
Withdrawing consent
(4) If an authorised officer is on premises
by consent in accordance with paragraph (1)(b) or (2)(b), the authorised
officer must leave the premises if any occupier of the premises asks the
authorised officer to do so.
221
Powers of authorised officers while on premises
(1) After entering premises under section 219,
the authorised officer may do anything reasonably necessary to perform the
Authority’s functions described in section 219.
(2) Without limiting subsection (1), the
officer may do any or all of the following things to the extent that the thing
is reasonably necessary for the performance of the Authority’s functions
described in section 219:
(a) inspect a water resource;
(b) affix or place monitoring equipment;
(c) take water from a water resource,
but only to the extent necessary:
(i) to affix or place
monitoring equipment; and
(ii) for the operation of
that equipment;
(d) inspect and operate monitoring
equipment;
(e) conduct meteorological and hydrological
investigations;
(f) inspect water infrastructure;
(g) conduct tests;
(h) collect samples of water, sand,
gravel, soil, minerals, rock, flora or fauna;
(i) take photographs, make video or
audio recordings or make sketches;
(j) take onto the premises such
equipment and materials as is required;
(k) if the premises is an area of land
and the officer entered the land in a vehicle—use the vehicle on the land
(whether or not on existing roads);
(l) clear vegetation.
(3) In this section:
monitoring equipment includes meteorological
and hydrological measuring equipment.
222
Duties of authorised officers
An authorised officer entering premises
under this Subdivision and doing a thing on that premises must:
(a) take all reasonable steps to ensure
that the doing of the thing causes as little detriment and inconvenience, and
does as little damage, as is practicable to the premises and to anything on, or
growing or living on, the premises; and
(b) cooperate as far as practicable
with an occupier of the premises; and
(c) remain on the premises only for
such period as is reasonably necessary; and
(d) leave the premises, as nearly as
practicable, in the condition in which it was immediately before the thing was
done.
Note: Obstructing, hindering, intimidating or
resisting an authorised officer in the performance of his or her functions is
an offence against section 149.1 of the Criminal Code.
Subdivision C—Powers to enter land etc. for compliance purposes
223
Entering premises to monitor compliance
(1) An authorised officer may:
(a) enter premises; and
(b) exercise any or all of the powers
described in subsection (2);
to the extent that this is reasonably necessary to monitor
compliance with provisions of Part 2 or regulations made for the purposes
of Part 2.
(2) The authorised officer’s powers are as
follows:
(a) the powers set out in the
paragraphs of subsection 221(2);
(b) to search the premises and any
thing on the premises;
(c) to require any person in or on the
premises to:
(i) answer any questions;
and
(ii) produce any documents
contained on the premises;
(d) to inspect, examine and make
copies of, or take extracts from, any documents.
(3) An authorised officer is not authorised
to enter premises under subsection (1) unless:
(a) an occupier of the premises has
consented to the entry; or
(b) the entry is made under a warrant
under section 225.
224
Entering premises to search for evidential material
(1) An authorised officer may:
(a) enter premises; and
(b) exercise any or all of the powers
described in subsections (2) and (3);
if the authorised officer has reasonable grounds for
suspecting that there may be evidential material on the premises.
Note: Evidential material is material relating to
certain civil contraventions (see the definition of evidential material
in section 4).
(2) The authorised officer’s powers are as
follows:
(a) the powers set out in the
paragraphs of subsection 221(2);
(b) to search the premises, and any
thing on the premises, for the evidential material;
(c) to inspect, examine and make
copies of, take extracts from, take measurements of, conduct tests on or take
samples of, the evidential material.
(3) If:
(a) in the course of searching for a
particular thing in accordance with a warrant under section 226, an
authorised officer finds another thing that the authorised officer believes on
reasonable grounds to be evidential material; and
(b) the authorised officer believes,
on reasonable grounds, that it is necessary to do any or all of the following
tasks:
(i) inspect the other
thing;
(ii) examine and make
copies of the other thing;
(iii) take extracts from, or
take measurements of, the other thing;
(iv) conduct tests on, or
take samples of, the other thing;
in order to prevent its
concealment, loss or destruction, or its use in committing, continuing or
repeating a contravention of a provision of Part 2 or regulations made for
the purposes of Part 2;
the warrant is taken to authorise the authorised officer
to do that other task or tasks.
(4) An authorised officer is not authorised
to enter premises under subsection (1) unless:
(a) an occupier of the premises has
consented to the entry; or
(b) the entry is made under a warrant
under section 226.
225 Monitoring warrants
(1) An authorised officer may apply to a
magistrate for a warrant under this section in relation to premises.
(2) Subject to subsection (3), the
magistrate may issue the warrant if the magistrate is satisfied, by information
on oath or affirmation, that it is reasonably necessary that one or more
authorised officers should have access to the premises for the purposes of
monitoring compliance with provisions of Part 2 or regulations made for
the purposes of Part 2.
(3) The magistrate must not issue the warrant
unless the authorised officer or some other person has given to the magistrate,
either orally or by affidavit, such further information (if any) as the
magistrate requires concerning the grounds on which the issue of the warrant is
being sought.
(4) The warrant must:
(a) authorise one or more authorised
officers (whether or not named in the warrant), with such assistance as is
necessary and reasonable:
(i) to enter the premises;
and
(ii) to exercise the powers
referred to in subsection 223(2) in relation to the premises; and
(b) state whether the entry is
authorised to be made at any time of the day or night or during specified hours
of the day or night; and
(c) specify the day (not more than 6
months after the issue of the warrant) on which the warrant ceases to have
effect; and
(d) state the purpose for which the
warrant is issued.
226
Contravention‑related warrants
(1) An authorised officer may apply to a
magistrate for a warrant under this section in relation to premises.
(2) Subject to subsection (3), the
magistrate may issue the warrant if the magistrate is satisfied, by information
on oath or affirmation, that there are reasonable grounds for suspecting that
there is, or there may be within the next 72 hours, evidential material in or
on the premises.
(3) The magistrate must not issue the warrant
unless the authorised officer or some other person has given to the magistrate,
either orally or by affidavit, such further information (if any) as the
magistrate requires concerning the grounds on which the issue of the warrant is
being sought.
(4) The warrant must:
(a) name one or more authorised
officers; and
(b) authorise the authorised officers
so named, with such assistance as is necessary and reasonable:
(i) to enter the premises;
and
(ii) to exercise the powers
referred to in subsections 224(2) and (3) in relation to the premises; and
(c) state whether the entry is
authorised to be made at any time of the day or night or during specified hours
of the day or night; and
(d) specify the day (not more than one
week after the issue of the warrant) on which the warrant ceases to have
effect; and
(e) state the purpose for which the
warrant is issued.
227
Contravention‑related warrants by telephone, telex, fax etc.
(1) If, in an urgent case, an authorised
officer considers it necessary to do so, the authorised officer may apply to a
magistrate by telephone, telex, fax or other electronic means for a warrant
under section 226 in relation to premises.
(2) The magistrate may require communication
by voice to the extent that it is practicable in the circumstances.
(3) Before applying for the warrant, the
authorised officer must prepare an information of the kind mentioned in
subsection 226(2) in relation to the premises that sets out the grounds on
which the warrant is sought.
(4) If it is necessary to do so, the
authorised officer may apply for the warrant before the information is sworn or
affirmed.
(5) If the magistrate is satisfied:
(a) after having considered the terms
of the information; and
(b) after having received such further
information (if any) as the magistrate requires concerning the grounds on which
the issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant,
the magistrate may complete and sign the same warrant that the magistrate would
issue under section 226 if the application had been made under that
section.
(6) If the magistrate completes and signs the
warrant:
(a) the magistrate must:
(i) tell the authorised
officer what the terms of the warrant are; and
(ii) tell the authorised
officer the day on which and the time at which the warrant was signed; and
(iii) tell the authorised
officer the day (not more than one week after the magistrate completes and
signs the warrant) on which the warrant ceases to have effect; and
(iv) record on the warrant
the reasons for issuing the warrant; and
(b) the authorised officer must:
(i) complete a form of
warrant in the same terms as the warrant completed and signed by the
magistrate; and
(ii) write on the form the
name of the magistrate and the day on which and the time at which the warrant
was signed.
(7) The
authorised officer must also, not later than the day after the day of expiry or
execution of the warrant, whichever is the earlier, send to the magistrate:
(a) the form of warrant completed by
the authorised officer; and
(b) the information referred to in subsection (3),
which must have been duly sworn or affirmed.
(8) When the magistrate receives those
documents, the magistrate must:
(a) attach them to the warrant that
the magistrate completed and signed; and
(b) deal with them in the way in which
the magistrate would have dealt with the information if the application had
been made under section 226.
(9) A form of warrant duly completed under subsection (6)
is authority for any entry, search, seizure or other exercise of a power that
the warrant signed by the magistrate authorises.
(10) If:
(a) it is material, in any
proceedings, for a court to be satisfied that an exercise of a power was
authorised by this section; and
(b) the warrant signed by the
magistrate authorising the exercise of the power is not produced in evidence;
the court must assume, unless the contrary is proved, that
the exercise of the power was not authorised by such a warrant.
(11) A reference in this Subdivision to a
warrant under section 226 includes a reference to a warrant signed by a
magistrate under this section.
228
Obligations of authorised officers—all cases
(1) An authorised officer is not authorised
to enter premises under section 223 or 224 unless:
(a) the officer has shown his or her
identity card if required by an occupier; and
(b) the officer has given the
occupiers a written statement of the occupiers’ rights and obligations in
relation to the officer’s proposed entry on to the premises.
(2) An authorised officer is not entitled to
exercise any powers under this Subdivision in relation to premises if, after
entering the premises:
(a) an occupier of the premises has
required the officer to produce his or her identity card for inspection by the
occupier; and
(b) the officer fails to comply with
the requirement.
229
Obligations of authorised officers—entry by consent
(1) An authorised officer is not authorised
to enter premises under paragraph 223(3)(a) or 224(4)(a) unless an occupier of
the premises has voluntarily consented to the entry.
(2) Before obtaining the consent of an
occupier for the purposes of subsection (1), the authorised officer must
inform the person that he or she may refuse consent.
(3) If an authorised officer is on premises
by consent in accordance with subsection (1), the authorised officer must
leave the premises if any occupier of the premises asks the authorised officer
to do so.
230
Obligations of authorised officers—entry by warrant
Announcement before entry
(1) An authorised officer must, before
entering premises under a warrant issued under section 225 or 226:
(a) announce that he or she is
authorised to enter the premises; and
(b) give any person at the premises an
opportunity to allow entry to the premises.
(2) An
authorised officer is not required to comply with subsection (1) if he or
she believes on reasonable grounds that immediate entry to the premises is
required:
(a) to ensure the safety of a person;
or
(b) to prevent serious damage to the
environment; or
(c) to ensure that the effective
execution of the warrant is not frustrated.
Details of warrant to be given to occupier etc.
(3) If, when executing the warrant, an
occupier of the premises or another person who apparently represents the
occupier is present at the premises, the authorised officer must make available
to that person a copy of the warrant.
(4) The authorised officer must identify
himself or herself to that person.
(5) The copy of the warrant referred to in subsection (3)
need not include the signature of the magistrate who issued the warrant.
231
Use of equipment at premises
(1) This section applies if:
(a) an authorised officer enters
premises under a warrant issued under this Subdivision; and
(b) the authorised officer believes on
reasonable grounds that the authorised officer can operate equipment at the
premises without damaging the equipment.
(2) The authorised officer may operate the
equipment to:
(a) see whether the following may be
accessible by doing so:
(i) in the case of a
warrant under section 225—information relevant to determining whether
there has been compliance with provisions of Part 2 or regulations made
for the purposes of Part 2;
(ii) in the case of a
warrant under section 226—evidential material; and
(b) put the information or material in
documentary form; and
(c) copy the information or material
to a storage device that the authorised officer has brought to the premises.
The authorised officer may then take the storage device
from the premises.
232
Expert assistance to operate a thing
(1) If an authorised officer enters premises
under a warrant issued under this Subdivision and the officer believes on
reasonable grounds that:
(a) the following may be accessible by
operating a thing at particular premises:
(i) in the case of a
warrant under section 225—information relevant to determining whether
there has been compliance with provisions of Part 2 or regulations made
for the purposes of Part 2;
(ii) in the case of a
warrant under section 226—evidential material; and
(b) expert assistance is required to
operate the thing; and
(c) if he or she does not take action
under this subsection, the information or material may be destroyed, altered or
otherwise interfered with;
he or she may do whatever is necessary to secure the
thing, whether by locking it up, placing a guard or otherwise.
(2) The authorised officer must give notice
to the occupier of the premises of his or her intention to secure the thing and
of the fact that the thing may be secured for up to 24 hours.
(3) The thing may be secured:
(a) for a period not exceeding 24
hours; or
(b) until the thing has been operated
by the expert;
whichever happens first.
(4) If the authorised officer believes on
reasonable grounds that the expert assistance will not be available within 24
hours, he or she may apply to the magistrate for an extension of that period.
(5) The authorised officer must give notice
to the occupier of the premises of his or her intention to apply for an extension,
and the occupier is entitled to be heard in relation to the application.
233
Compensation for damage
(1) The owner of a thing is entitled to
compensation for damage to the thing if:
(a) the damage was caused to the thing
as a result of it being operated (otherwise than by an occupier of the premises
being entered under this Subdivision) as mentioned in this Subdivision; and
(b) the damage was caused as a result
of:
(i) insufficient care
being exercised in selecting the person who was to operate the thing; or
(ii) insufficient care
being exercised by the person operating the thing.
(2) Compensation is payable out of money
appropriated by the Parliament.
(3) In determining the amount of compensation
payable, regard is to be had to whether an occupier of the premises and his or
her employees and agents, if they were available at the time, had provided any
warning or guidance as to the operation of the thing that was appropriate in
the circumstances.
234
Offences relating to warrants
(1) A person commits an offence if:
(a) the person is an authorised
officer; and
(b) the person makes, in an
application for a warrant under section 225 or 226, a statement that the
person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years or 120 penalty units.
(2) A person
commits an offence if the person is an authorised officer and the person:
(a) states in a document that purports
to be a form of warrant under section 227 the name of a magistrate unless
that magistrate issued the warrant; or
(b) states on a form of warrant under
that section a matter that, to the authorised officer’s knowledge, departs in a
material particular from the form authorised by the magistrate; or
(c) purports to execute, or present to
another person, a document that purports to be a form of warrant under that
section that the authorised officer knows:
(i) has not been approved
by a magistrate under that section; or
(ii) departs in a material
particular from the terms authorised by a magistrate under that section; or
(d) gives to a magistrate a form of
warrant under that section that is not the form of warrant that the authorised
officer purported to execute.
Penalty: Imprisonment for 2 years or 120 penalty units.
235
Subdivision does not apply to authorised officers who are contractors
This Subdivision does not extend to
authorised officers covered by subparagraph 217(2)(a)(iv).
Subdivision D—Other matters
236
Division not to abrogate privilege against self‑incrimination
Nothing in this Division affects the
right of a person to refuse to answer a question, give information, or produce
a document, on the ground that the answer to the question, the information or
the production of the document might tend to incriminate the person or make the
person liable to a penalty.
237
Occupier entitled to be present during entry
(1) If:
(a) an authorised officer is entering
premises under Subdivision B or C; and
(b) an occupier of the premises, or
another person who apparently represents the occupier, is present at the
premises;
the person is entitled to observe the activities of the
authorised officer on the premises.
(2) The right to observe the authorised
officer’s activities ceases if the person impedes those activities.
(3) This section does not prevent the
authorised officer, or the authorised officers, from carrying out activities at
2 or more areas of the premises at the same time.
Division 3—Information gathering
238
Power to request information
(1) This section applies to a person if the
Authority has reason to believe that information (the compellable
information) relating to any of the following matters:
(a) the preparation and implementation
of the Basin Plan;
(b) the investigation of a possible
contravention of a provision of Part 2 or regulations made for the
purposes of Part 2;
(c) a matter:
(i) relevant to the
performance of the Authority’s functions; and
(ii) specified in
regulations made for the purposes of this paragraph;
is in the person’s possession, custody or control (whether
held electronically or in any other form).
(2) The Authority may, in writing, require
the person to give specified compellable information to the Authority:
(a) within a specified period of time;
and
(b) in a specified form or manner.
(3) The person must not fail to comply with a
requirement under this section.
Civil penalty: 50 penalty units.
(4) The person must not, in purported
compliance with a requirement under this section, give to the Authority
information that is false or misleading in a material particular.
Civil penalty: 60 penalty units.
(5) Subsection (3) does not apply to the
extent that the person has a reasonable excuse. However, a person does not have
a reasonable excuse merely because the information in question is:
(a) of a commercial nature; or
(b) subject to an obligation of
confidentiality arising from a commercial relationship; or
(c) commercially sensitive.
(6) Subsection (3) does not apply in
relation to compellable information covered by paragraph (1)(b) if giving
the information might tend to incriminate the person or expose the person to a
penalty.
239
Prohibitions on disclosure of information do not apply
This Division has effect despite any law
of the Commonwealth, a State or a Territory prohibiting disclosure of the
information.
Part 11—Transitional
Division 1—Management of Basin water resources (Part 2)
240
Reference to water resource plan area
For the purposes of applying this
Division before the Basin Plan first takes effect, a reference in this Division
to a water resource plan area is taken to be a reference to an
area containing water resources that form part of the Basin water resources.
241
Transitional water resource plans
(1) For the purposes of this Act, a transitional
water resource plan for a water resource plan area is a plan that is:
(a) specified in Schedule 4; or
(b) prescribed by the regulations for
the purposes of this paragraph;
together with any instruments made under or for the
purposes of that plan (whether made before or after Schedule 4 commences).
Note: Without limiting paragraph (b), it is
intended that the transitional water resource plans for water resource plan
areas in Victoria are to be prescribed by regulations made for the purposes of
that paragraph.
(2) Subsection (1) applies to a plan or
other instrument only to the extent to which the plan or instrument relates to:
(a) the water resources of the water
resource plan area; and
(b) matters referred to in subsection 22(1).
(3) A transitional water resource plan for a
water resource plan area ceases to have effect for the purposes of this Act on
the date specified in relation to that plan in:
(a) Schedule 4 if paragraph (1)(a)
applies; or
(b) the regulations made for the
purposes of paragraph (1)(b) if that paragraph applies;
if the transitional water resource plan has not ceased to
have effect before that time.
242
Interim water resource plans
(1) For the purposes of this Act, an interim
water resource plan for a water resource plan area is a plan that:
(a) is a plan for the management of
the water resources of the water resource plan area; and
(b) is made under a State water
management law of a Basin State on or after 25 January 2007 and before the
Basin Plan first takes effect;
to the extent to which the plan relates to:
(c) the water resource plan area; and
(d) the matters referred to in
subsection 22(1).
(2) An interim water resource plan for a
water resource plan area ceases to have effect for the purposes of this Act on
the cessation time for the plan if it has not ceased to have effect before that
time.
(3) The cessation time for the
plan is:
(a) the end of 31 December 2014;
or
(b) the time occurring 5 years after
the plan is made;
whichever is later.
(4) Before making an interim water resource
plan for a water resource plan area, the Basin State in which the water
resource plan area is located must consult the Authority in relation to the
interim water resource plan.
(5) Subsection (4) does not apply if the
Authority has not been established, and the members of the Authority appointed,
before the interim water resource plan is made.
243
Transitional water resource plans taken to have been accredited
(1) A transitional water resource plan for a
water resource plan area, as in force immediately before Part 2 commences,
is taken to have been accredited by the Minister under Subdivision D of
Division 2 of Part 2 on the day on which Part 2 commences.
Note: This subsection has the effect of continuing
the operation of State water use and management plans that were made before 25 January
2007. They are continued in operation until their expiry date or, if they do
not expire, their next major review.
(2) The regulations may provide that minor,
or non‑substantive, amendments of a transitional water resource plan of a
kind specified in the regulations are also taken to have been accredited by the
Minister under Subdivision D of Division 2 of Part 2 on the date
provided for in, or determined in accordance with, the regulations.
(3) To avoid doubt and despite subsection 55(2),
subsections (1) and (2) apply even if the transitional water resource plan
for the water resource plan area (or the amendment) is not consistent with the
Basin Plan.
244
Interim water resource plans taken to have been accredited
(1) An interim water resource plan for a
water resource plan area, as in force immediately before the Basin Plan first
takes effect, is taken to have been accredited by the Minister under
Subdivision D of Division 2 of Part 2 on the later of the following:
(a) the day on which Part 2
commences;
(b) the day on which the interim water
plan is made.
(2) The regulations may provide that minor,
or non‑substantive, amendments of an interim water resource plan of a
kind specified in the regulations are also taken to have been accredited by the
Minister under Subdivision D of Division 2 of Part 2 on the date
provided for in, or determined in accordance with, the regulations.
(3) To avoid doubt and despite subsection 55(2),
subsections (1) and (2) apply even if the interim water resource plan for
the water resource plan area is not consistent with the Basin Plan.
245
Operation of transitional water resource plans and interim water resource plans
(1) This section applies in relation to a
water resource plan area while a transitional water resource plan, or an
interim water resource plan, for the water resource plan area has effect.
(2) The transitional water resource plan, or
the interim water resource plan, prevails over the Basin Plan to the extent to
which:
(a) the transitional water resource
plan, or the interim water resource plan, relates to the water resource plan
area; and
(b) there is an inconsistency between
the provisions of the transitional water resource plan, or the interim water
resource plan, and the Basin Plan.
(3) The obligation that a person or body has under
section 34 or 35 is subject to any inconsistent provisions in the
transitional water resource plan or interim water resource plan.
(4) Subsection (2) has effect subject to
subsection 246(3).
246
Amendment of transitional water resource plans and interim water resource plans
(1) This section applies if a Basin State
gives the Authority a proposed amendment of a transitional water resource plan,
or an interim water resource plan, for a water resource plan area under
subsection 65(2).
(2) Subsection 55(2) does not apply to the
Minister’s decision whether to accredit the amendment under Subdivision D of
Division 2 of Part 2.
(3) The Minister must accredit the amendment
under Subdivision D of Division 2 of Part 2 if the Minister is
satisfied that the amendment would make the transitional water resource plan or
the interim water resource plan no less consistent with the Basin Plan.
247
Authority may provide assistance
The Authority may provide assistance to
a Basin State in relation to the following:
(a) a review of a transitional water
resource plan, or an interim water resource plan, for a water resource plan
area in the Basin State;
(b) amendments of a transitional water
resource plan, or an interim water resource plan, for a water resource plan
area in the Basin State following a review of the plan.
Division 2—Commonwealth Environmental Water Holder
248
The functions of the Commonwealth Environmental Water Holder prior to Basin
Plan taking effect
At any time before the Basin Plan first
takes effect, subsection 105(4) has effect as if paragraph 105(4)(a) did not
apply.
Note: Before the Basin Plan first takes effect, the
Commonwealth Environmental Water Holder must manage the Commonwealth environmental
water holdings relating to water in the Murray‑Darling Basin in a way
that protects or restores the Basin’s environmental assets (see subsection (105(3)).
249
Disposals of water or Commonwealth water holdings prior to Basin Plan taking
effect
At any time before the Basin Plan first
takes effect, section 106 has effect as if references in paragraphs 106(1)(a)
and 106(2)(a) to the objectives of the environmental watering plan were
references to the objective of protecting or restoring the environmental assets
of the Murray‑Darling Basin.
Division 3—Murray‑Darling Basin Authority
250
First annual report for Authority
(1) This section applies if Part 9
commences in April, May or June of a financial year (the first year).
(2) Section 214 does not apply in
relation to the first year.
(3) Section 214 applies in relation to
the next financial year (the next year) as if the next year also
included the period:
(a) starting when Part 9
commences; and
(b) ending at the end of the first
year.
Part 12—Miscellaneous
251
Delegation by Minister
General power to delegate
(1) The Minister may, by writing, delegate
any or all of the Minister’s functions and powers under this Act, the
regulations or the Basin Plan to:
(a) the Secretary of the Department;
or
(b) an SES employee, or acting SES
employee, in the Department.
(2) Subsection (1) does not apply to:
(a) the power to adopt the Basin Plan
under section 44; or
(b) the power to approve an amendment
of the Basin Plan under section 48; or
(c) the power to accredit a water
resource plan under section 63; or
(d) the power to accredit an amendment
of a water resource plan under section 65; or
(e) the power to adopt a water
resource plan under section 69; or
(f) the power to make water charge
rules under section 92; or
(g) the power to make water market
rules under section 97; or
(h) the power to give a consent under
paragraph 172(1)(l); or
(i) the power to give a direction
under section 175; or
(j) the power to make operating rules
under section 109.
Directions
(3) A delegate under subsection (1) must
comply with any written directions of the Minister.
252
Instruments not invalid for failure to publish on website
If a provision of this Act requires an
instrument under this Act to be published on a website, the instrument is not
invalid merely because of a failure to comply with that requirement.
253
Review of operation of Act
(1) Before the end of 2014, the Minister must
cause to be conducted a review of:
(a) the operation of this Act; and
(b) the extent to which the objects of
this Act have been achieved.
(2) The terms of reference for the review
must require the following:
(a) having regard to the extent to
which water resource plans are in transition—an assessment of the extent to
which:
(i) the management
objectives and outcomes of the Basin Plan are being met; and
(ii) long‑term
average sustainable diversion limits are being met; and
(iii) targets in the Basin
Plan are being met; and
(iv) water trading is
occurring effectively and efficiently; and
(v) other key elements of
the Basin Plan are being implemented;
(b) an assessment of:
(i) the level of Basin‑wide
consistency in water charging regimes; and
(ii) the contribution made
by those charging regimes to achieving the Basin water charging objectives;
(c) an assessment of the extent to
which water is being used in higher value uses;
(d) an assessment of the progress in
the implementation of improved water information systems, including the
National Water Account;
and may include any other requirements and matters
determined by the Minister in consultation with the States.
(3) The review must be undertaken in
consultation with the States.
(4) The Minister must cause to be prepared a
written report of the review.
(5) The Minister must cause a copy of the
report to be tabled in each House of the Parliament within 15 sitting days of
that House after its receipt by the Minister.
254
Compensation for acquisition of property
(1) If the operation of this Act would result
in an acquisition of property from a person otherwise than on just terms, the
Commonwealth is liable to pay a reasonable amount of compensation to the
person.
(2) If the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute proceedings
in the Federal Court of Australia for the recovery from the Commonwealth of
such reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
255
Act does not authorise compulsory acquisition of water access rights
To avoid doubt, nothing in:
(a) this Act; or
(b) the regulations; or
(c) any other instrument made under
this Act;
authorises or allows the Commonwealth, the Authority, the
Commonwealth Environmental Water Holder or any other agency of the Commonwealth
to compulsorily acquire a water access right or an interest in a water access
right.
256 Regulations
(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.