Water Act 2007
Act No. 137 of 2007 as amended
This compilation was prepared on 30 March 2011
taking into account amendments up to Act No. 5 of 2011
The text of any of those
amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may
be
affected by application provisions that are set out in the Notes section
Prepared by the Office of
Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
Part 1—Preliminary 1
1............ Short title [see Note 1]........................................................................ 1
2............ Commencement................................................................................... 1
3............ Objects................................................................................................ 2
4............ Definitions.......................................................................................... 3
5............ Application of the Acts Interpretation Act
1901 to Parts 1A, 2A, 4, 4A, 10A and 11A 19
6............ Planned environmental water............................................................ 19
7............ Infrastructure operators etc................................................................ 20
8............ River flow control works.................................................................. 21
9............ Constitutional basis for Act............................................................... 22
9A......... Constitutional basis of Parts 1A, 2A, 4, 4A,
10A and 11A.............. 22
10.......... Basis for Basin water charge, water trading and
water market rules. 24
11.......... Reading down provision in relation to the
operation of sections 99 and 100 of the Constitution 25
12.......... Application to Crown etc.................................................................. 26
12A....... Actions of the Murray‑Darling Basin Ministerial
Council................ 27
13.......... The Native Title Act 1993 not affected............................................... 27
Part 1A—The Murray‑Darling Basin Agreement 28
Division 1—Preliminary 28
18A....... Definitions........................................................................................ 28
18B....... Meaning of referring State................................................................ 29
Division 2—The Murray‑Darling Basin Agreement 33
18C....... Amendment of Schedule 1................................................................ 33
18D....... Protocols made by the Authority....................................................... 33
Division 3—Functions, powers and duties under the
Agreement 34
18E........ Additional functions, powers and duties of the
Authority................. 34
18F........ Additional functions, powers and duties of the
Basin Community Committee 35
18G....... Management of money and assets..................................................... 36
18H....... Managing water access rights etc. for the Living
Murray Initiative... 36
Part 2—Management of Basin water resources 37
Division 1—Basin Plan 37
Subdivision A—Introduction 37
19.......... Simplified outline.............................................................................. 37
Subdivision B—Basin Plan, its purpose and contents 37
20.......... Purpose of Basin Plan....................................................................... 37
21.......... General basis on which Basin Plan to be developed......................... 38
22.......... Content of Basin Plan....................................................................... 41
23.......... Long‑term average sustainable diversion limits................................. 49
24.......... Temporary diversion provision......................................................... 49
25.......... Water quality and salinity management plan...................................... 51
26.......... Water trading and transfer rules........................................................ 51
27.......... Basin Plan to be published on Authority’s website........................... 53
Subdivision C—Environmental management 53
28.......... Environmental watering plan............................................................. 53
29.......... Authority to consult holders and managers of
environmental water in implementing environmental watering plan 54
30.......... Environmental watering schedules.................................................... 54
31.......... Authority to coordinate delivery of environmental
water.................. 55
32.......... Authority to identify and account for held
environmental water........ 55
Subdivision D—Effect of Basin Plan 55
33.......... Basin Plan is a legislative instrument................................................ 55
34.......... Effect of Basin Plan on Authority and other
agencies of the Commonwealth 55
35.......... Effect of Basin Plan on other agencies and
persons.......................... 56
36.......... Constitutional operation of section 35
(general)................................ 56
37.......... Constitutional operation of section 35
(water trading rules).............. 57
38.......... Regulations may provide for exceptions........................................... 58
39.......... Obligations under both Basin Plan and water
resource plans............ 58
40.......... Effect on State laws........................................................................... 59
Subdivision E—Procedure for making Basin Plan 59
41.......... Authority to prepare Basin Plan and give to
Minister for adoption... 59
42.......... Consultations by Authority in preparing Basin
Plan......................... 59
43.......... Authority to seek submissions on proposed Basin
Plan................... 60
43A....... Authority to seek comments from Murray‑Darling
Basin Ministerial Council on proposed Basin Plan 61
44.......... Minister may adopt Basin Plan......................................................... 64
Subdivision F—Amendment of Basin Plan 65
45.......... Authority may prepare amendment of Basin Plan............................. 65
46.......... Consultations by Authority in preparing amendment
of Basin Plan.. 65
47.......... Authority to seek submissions on proposed
amendment of Basin Plan 66
47A....... Authority to seek comments from Murray‑Darling
Basin Ministerial Council on proposed amendment of Basin Plan.......................................................................................................... 68
48.......... Minister may adopt amendment of Basin Plan.................................. 70
49.......... Minor or non‑substantive amendments of Basin Plan....................... 71
Subdivision G—Review of Basin Plan 72
49A....... Authority to advise Murray‑Darling Basin
Ministerial Council on impacts of Basin Plan 72
50.......... Review of Basin Plan—general........................................................ 72
51.......... Authority to prepare discussion paper and seek
submissions........... 73
52.......... Review may lead to amendment of Basin Plan.................................. 75
Division 2—Water resource plans for particular water
resource plan areas 76
Subdivision A—Introduction 76
53.......... Simplified outline.............................................................................. 76
Subdivision B—Water resource plans 76
54.......... Water resource plans for water resource plan
areas........................... 76
55.......... Content of water resource plan.......................................................... 77
56.......... General basis for accrediting and making water
resource plans........ 77
Subdivision C—Effect of a water resource plan 78
57.......... Water resource plan adopted under section 69
is a legislative instrument 78
58.......... Effect of water resource plan on Authority and
other agencies of the Commonwealth 78
59.......... Effect of water resource plan on other agencies
and bodies.............. 78
60.......... Constitutional operation of section 59
(general)................................ 79
61.......... Constitutional operation of section 59 (water
trading rules).............. 80
62.......... Regulations may provide for exceptions........................................... 80
Subdivision D—Accrediting water resource plans prepared by
Basin States 81
63.......... Accrediting water resource plans prepared by
Basin States.............. 81
64.......... Duration of accreditation................................................................... 83
65.......... Accrediting amendments of accredited water
resource plans............. 83
66.......... Accrediting minor or non‑substantive amendments
of accredited water resource plans 85
67.......... Authority may assist Basin State to prepare water
resource plan...... 85
Subdivision E—Water resource plans prepared by Authority and
adopted by Minister 86
68.......... Minister may request Authority to prepare water
resource plan........ 86
69.......... Minister may adopt water resource plan............................................ 88
70.......... Duration of plan adopted under section 69........................................ 89
Subdivision F—Reporting obligations 89
71.......... Reporting obligations of Basin States............................................... 89
Division 3—Procedures to be followed before taking step‑in
action 91
72.......... Scope of Division............................................................................. 91
73.......... Procedure to be followed before exercising step‑in
power................ 91
Division 4—Allocation of risks in relation to reductions
in water availability 96
Subdivision A—Risks arising from reductions in diversion
limits 96
74.......... Simplified outline.............................................................................. 96
74A....... States applying the risk assignment framework................................ 97
75.......... Basin Plan to specify Commonwealth share of
reduction in long‑term average sustainable diversion limit 97
76.......... Commonwealth to manage Commonwealth share of
reduction in diversion limit 100
77.......... Payments to water access entitlement holders................................. 100
78.......... Applying Subdivision when transitional or interim
water resource plan ends 103
79.......... Regulations..................................................................................... 104
Subdivision B—Risks arising from other changes to Basin Plan 105
80.......... Simplified outline............................................................................ 105
81.......... Basin Plan to specify certain matters if Plan
results in change in reliability of water allocations 106
82.......... Commonwealth to manage Commonwealth share of
change in reliability 107
83.......... Payments to water access entitlement holders................................. 107
84.......... Applying Subdivision when transitional or interim
water resource plan ends 111
85.......... Regulations..................................................................................... 111
86.......... Operation of Subdivision................................................................ 112
Part 2A—Critical human water needs 113
86A....... Critical human water needs to be taken into account
in developing Basin Plan 113
86B....... Basin Plan to provide for critical human water
needs...................... 114
86C....... Additional matters relating to monitoring,
assessment and risk management 114
86D....... Additional matters relating to Tier 2 water sharing
arrangements.... 115
86E........ Additional matters relating to Tier 3 water
sharing arrangements.... 117
86F........ Emergency responses to the reaching of trigger
points................... 117
86G....... Effect of this Part on Authority and other agencies
of the Commonwealth 118
86H....... Effect of this Part on other agencies and persons............................ 118
86J........ Additional powers of the Authority................................................ 119
Part 3—Audits by National Water Commission 122
87.......... Power to conduct audits.................................................................. 122
88.......... When audits must be conducted...................................................... 122
89.......... Reports on audits............................................................................ 122
90.......... Tabling reports................................................................................ 122
Part 4—Basin water charge and water market rules 123
Division 1—Water charge rules 123
91.......... Regulated water charges.................................................................. 123
92.......... Water charge rules........................................................................... 124
93.......... Process for making water charge rules............................................ 126
94.......... ACCC to monitor water charges and compliance............................ 127
95.......... Minister may formulate model water charge rules........................... 127
96.......... Transitional provisions relating to water charge
rules..................... 128
Division 2—Water market rules 129
97.......... Water market rules.......................................................................... 129
98.......... Process for making water market rules........................................... 131
99.......... ACCC to monitor transformation arrangements and
compliance.... 132
100........ Transitional provisions relating to water market
rules..................... 132
Division 3—Miscellaneous 133
100A..... Functions and powers of the ACCC............................................... 133
Part 4A—Extended operation of Basin water charge and
water market rules 134
100B..... Extended operation of Basin water charge rules.............................. 134
100C..... Extended operation of Basin water market rules............................. 134
100D..... Functions and powers of the ACCC............................................... 135
Part 5—Murray‑Darling Basin Water Rights Information
Service 136
101........ Registrable water rights................................................................... 136
102........ Registers to which this Part applies................................................. 136
103........ Murray‑Darling Basin Water Rights Information
Service............... 136
Part 6—Commonwealth Environmental Water Holder 138
Division 1—Establishment and functions 138
104........ Establishment.................................................................................. 138
105........ Functions........................................................................................ 138
106........ Limitation on disposal of water and Commonwealth
environmental water holdings 139
107........ Limitation on directions to Commonwealth
Environmental Water Holder 140
108........ Meaning of Commonwealth environmental water
holdings........... 140
109........ Operating rules................................................................................ 141
110........ Application of State laws to the Commonwealth
Environmental Water Holder 142
Division 2—Environmental Water Holdings Special Account 143
111........ Establishment of the Environmental Water Holdings
Special Account 143
112........ Credits of amounts to the Account.................................................. 143
113........ Purpose of the Account................................................................... 144
Division 3—Reporting requirements 145
114........ Annual report.................................................................................. 145
Division 4—Appointment, staff and delegation 146
115........ Appointment................................................................................... 146
116........ Staff................................................................................................ 146
117........ Delegation....................................................................................... 146
Part 7—Water information 147
Division 1—Application of this Part 147
118........ Geographical application of this Part............................................... 147
119........ Application of this Part limited to certain
legislative powers........... 147
Division 2—Functions and powers of the Bureau and
Director of Meteorology 148
120........ Additional functions of the Bureau................................................. 148
121........ Contents of the National Water Account......................................... 148
122........ Publishing water accounts............................................................... 148
123........ Publishing water information.......................................................... 149
Division 3—Water information 150
124........ Object of this Division.................................................................... 150
125........ Meaning of water information etc................................................... 150
126........ Giving of water information to the Bureau...................................... 150
127........ Director of Meteorology may require water
information................. 151
128........ Prohibitions on disclosure of information do not
apply.................. 152
129........ Ownership etc. of information unaffected by its
disclosure............ 152
Division 4—National Water Information Standards 153
130........ National Water Information Standards............................................ 153
131........ Adoption of other standards............................................................ 153
132........ Consultations in preparing National Water
Information Standards. 154
133........ Compliance notices......................................................................... 154
Division 5—Miscellaneous 155
134........ Delegation by Director of Meteorology.......................................... 155
135........ Directions by Minister.................................................................... 155
Part 8—Enforcement 156
Division 1—Preliminary 156
136........ Contraventions to which this Part applies....................................... 156
137........ Appropriate enforcement agency for contraventions
to which this Part applies 156
138........ References to Court......................................................................... 156
139........ Jurisdiction of Federal Magistrates Court....................................... 157
Division 2—Injunctions 158
140........ Injunctions for contravention of the Act,
regulations or rules......... 158
141........ Discharge or variation of injunctions.............................................. 159
142........ Certain considerations for granting injunctions
not relevant............ 159
143........ Powers conferred are in addition to other powers
of the Court....... 160
Division 3—Declarations 161
144........ Declarations of contravention.......................................................... 161
145........ Discharge or variation of declarations............................................. 161
Division 4—Civil penalties 162
Subdivision A—Civil penalty orders 162
146........ Civil penalty provisions.................................................................. 162
147........ Court may order person to pay pecuniary penalty
for contravening civil penalty provision 162
148........ Contravening a civil penalty provision is not an
offence................. 163
149........ Persons involved in contravening civil penalty
provision............... 164
150........ Recovery of a pecuniary penalty..................................................... 164
Subdivision B—Civil penalty proceedings and criminal
proceedings 164
151........ Civil proceedings after criminal proceedings................................... 164
152........ Criminal proceedings during civil proceedings............................... 164
153........ Criminal proceedings after civil proceedings................................... 165
154........ Evidence given in proceedings for penalty not
admissible in criminal proceedings 165
Division 5—Infringement notices 166
155........ Object.............................................................................................. 166
156........ When an infringement notice can be given...................................... 166
157........ Matters to be included in an infringement notice............................. 166
158........ Amount of penalty.......................................................................... 167
159........ Withdrawal of an infringement notice............................................. 167
160........ Paying the penalty in accordance with the notice............................. 168
161........ Effect of this Division on civil proceedings.................................... 168
162........ Regulations..................................................................................... 169
Division 6—Enforceable undertakings 170
163........ Acceptance of undertakings relating to
contraventions to which this Part applies 170
164........ Enforcement of undertakings.......................................................... 171
Division 7—Enforcement notices 172
165........ Authority may issue an enforcement notice..................................... 172
166........ Breach of enforcement notice—civil penalty
provision................... 173
167........ Discharge or variation of enforcement notices................................ 173
Division 8—Liability of executive officers of
corporations 174
168........ Civil penalties for executive officers of bodies
corporate................ 174
169........ Did an executive officer take reasonable steps to
prevent contravention? 174
Division 9—Conduct of directors, employees and agents 176
170........ Conduct of directors, employees and agents................................... 176
Part 9—Murray‑Darling Basin Authority (administrative
provisions) 179
Division 1—Authority’s establishment, functions, powers
and liabilities 179
171........ Establishment.................................................................................. 179
172........ Authority’s functions...................................................................... 179
173........ Authority’s powers......................................................................... 182
174........ Authority’s financial liabilities are Commonwealth
liabilities.......... 183
175........ Minister may give directions to Authority....................................... 183
Division 2—Authority’s constitution and membership 185
Subdivision A—Authority’s constitution 185
176........ Authority’s constitution.................................................................. 185
Subdivision B—Authority’s membership 185
177........ Authority’s membership................................................................. 185
178........ Appointment of Authority members............................................... 185
179........ Period of appointment for Authority members................................ 187
180........ Acting Authority members.............................................................. 187
Subdivision C—Terms and conditions for Authority members 189
181........ Remuneration.................................................................................. 189
182........ Standing obligation to disclose interests.......................................... 189
183........ Obligation to disclose interests before
considering a particular matter 190
184........ Chief Executive must keep Minister informed................................ 191
185........ Outside employment....................................................................... 191
186........ Member of the governing body of a relevant
interest group............ 191
187........ Leave of absence............................................................................. 191
188........ Resignation..................................................................................... 191
189........ Termination of appointment............................................................ 192
190........ Other terms and conditions............................................................. 193
Division 3—Decision‑making and delegation by Authority 194
Subdivision A—Meetings 194
191........ Holding of meetings........................................................................ 194
192........ Presiding at meetings...................................................................... 194
193........ Quorum........................................................................................... 194
194........ Decisions at meetings etc................................................................ 195
195........ Conduct of meetings....................................................................... 195
196........ Minutes........................................................................................... 195
Subdivision B—Decisions without meetings 195
197........ Decisions without meetings............................................................ 195
198........ Record of decisions......................................................................... 196
Subdivision C—Delegation 196
199........ Delegation by Authority.................................................................. 196
200........ Limits on how some functions and powers can be
delegated.......... 197
Subdivision D—Basin Officials Committee 197
201........ Basin Officials Committee.............................................................. 197
201A..... Appointment of Chair of the Basin Officials
Committee................. 197
201B..... Acting Chair of the Basin Officials Committee............................... 198
201C..... Period of appointment for Chair of the Basin
Officials Committee. 199
Subdivision E—Other advisory committees 199
202........ Basin Community Committee......................................................... 199
203........ Other advisory committees.............................................................. 201
204........ Appointments to advisory committees............................................ 201
205........ Procedural matters........................................................................... 202
Division 4—Authority’s staff etc. 203
206........ Staff................................................................................................ 203
207........ Persons assisting Authority............................................................ 203
208........ Chief Executive not to be directed about certain
matters.................. 203
Division 5—Finance and reporting requirements 204
Subdivision A—Murray‑Darling Basin Special Account 204
209........ Murray‑Darling Basin Special Account.......................................... 204
210........ Credits to the Account..................................................................... 204
211........ Purposes of the Account................................................................. 205
Subdivision B—Authority may charge fees 205
212........ Fees................................................................................................. 205
Subdivision C—Exemption from taxation and charges etc. 206
213........ Exemption from taxation and charges etc........................................ 206
Subdivision CA—Corporate plan 206
213A..... Corporate plan................................................................................. 206
213B..... Variation of corporate plan.............................................................. 207
Subdivision D—Reporting requirements 207
214........ Annual report.................................................................................. 207
Division 6—Confidentiality 209
215........ Confidentiality................................................................................. 209
Part 10—Murray‑Darling Basin Authority (special powers) 211
Division 1—Application of this Part 211
216........ Application of this Part limited to certain
legislative powers........... 211
Division 2—Entry onto land etc. 213
Subdivision A—Authorised officers 213
217........ Appointment of authorised officers................................................. 213
218........ Identity cards................................................................................... 213
Subdivision B—Powers to enter land etc. other than for
compliance purposes 214
219........ When authorised officers can enter premises.................................. 214
220........ Obligations of authorised officers before entering
premises........... 214
221........ Powers of authorised officers while on premises............................ 215
222........ Duties of authorised officers........................................................... 216
Subdivision C—Powers to enter land etc. for compliance
purposes 217
223........ Entering premises to monitor compliance........................................ 217
224........ Entering premises to search for evidential
material.......................... 217
225........ Monitoring warrants....................................................................... 218
226........ Contravention‑related warrants....................................................... 219
227........ Contravention‑related warrants by telephone,
telex, fax etc............. 220
228........ Obligations of authorised officers—all cases.................................. 222
229........ Obligations of authorised officers—entry by
consent..................... 222
230........ Obligations of authorised officers—entry by
warrant..................... 223
231........ Use of equipment at premises......................................................... 223
232........ Expert assistance to operate a thing................................................. 224
233........ Compensation for damage............................................................... 225
234........ Offences relating to warrants.......................................................... 225
235........ Subdivision does not apply to authorised officers
who are contractors 226
Subdivision D—Other matters 226
236........ Division not to abrogate privilege against self‑incrimination........... 226
237........ Occupier entitled to be present during entry.................................... 227
Division 3—Information gathering 228
238........ Power to request information.......................................................... 228
239........ Prohibitions on disclosure of information do not
apply.................. 229
Part 10A—Transitional matters relating to the Murray‑Darling
Basin Commission 230
Division 1—Preliminary 230
239A..... Definitions...................................................................................... 230
239B..... Application of this Part................................................................... 230
Division 2—Assets, liabilities and legal proceedings 231
239C..... Vesting of assets of Murray‑Darling Basin Commission............... 231
239D..... River Murray Operations assets unaffected.................................... 231
239E...... Living Murray Initiative assets unaffected...................................... 232
239F...... Vesting of liabilities of Murray‑Darling Basin Commission........... 232
239G..... Certificates relating to vesting of land etc........................................ 233
239H..... Certificates relating to vesting of assets other
than land etc............. 234
239J...... Substitution of Authority as a party to pending
proceedings........... 234
239K..... Rights to sue President or Commissioner become
rights to sue Authority 235
239L...... President’s or Commissioner’s rights to sue become
rights of Authority 235
239M.... Transfer of custody of Murray‑Darling Basin
Commission records 236
Division 3—Effect on instruments and things done 237
239N..... References in certain instruments to Murray‑Darling
Basin Commission etc. 237
239P...... Things done by, or in relation to, the Murray‑Darling
Basin Commission etc. under Acts and instruments 239
239Q..... Things done under the former MDB Agreement............................ 239
239R..... Continuation of committees established by Murray‑Darling
Basin Commission 241
239S...... Continuation of Murray‑Darling Basin Commission’s
corporate plan 241
Division 4—Financial matters 243
239T...... Financial matters............................................................................. 243
Division 5—Miscellaneous 244
239U..... Exemption from stamp duty and other State or
Territory taxes....... 244
239V..... Certificates taken to be authentic..................................................... 244
239W.... Regulations..................................................................................... 245
Part 11—Other transitional matters 246
Division 1—Management of Basin water resources (Part 2) 246
240........ Reference to water resource plan area............................................. 246
241........ Transitional water resource plans.................................................... 246
242........ Interim water resource plans........................................................... 247
243........ Transitional water resource plans taken to have
been accredited..... 247
244........ Interim water resource plans taken to have been
accredited............. 248
245........ Operation of transitional water resource plans and
interim water resource plans 248
246........ Amendment of transitional water resource plans and
interim water resource plans 249
247........ Authority may provide assistance................................................... 249
Division 2—Commonwealth Environmental Water Holder 250
248........ The functions of the Commonwealth Environmental
Water Holder prior to Basin Plan taking effect 250
249........ Disposals of water or Commonwealth water holdings
prior to Basin Plan taking effect 250
Division 3—Murray‑Darling Basin Authority 251
250........ First annual report for Authority..................................................... 251
Part 11A—Interactions with State laws 252
250A..... Meaning of Commonwealth water legislation................................ 252
250B..... Concurrent operation intended........................................................ 252
250C..... Commonwealth water legislation does not apply to
matters declared by law of referring State to be excluded matters........................................................................................................ 252
250D..... Avoiding direct inconsistency arising between the
Commonwealth water legislation and laws of referring States 253
250E...... Regulations may modify operation of the
Commonwealth water legislation to deal with interaction between that
legislation and laws of referring States............................................ 255
Part 12—Miscellaneous 257
251........ Delegation by Minister.................................................................... 257
252........ Instruments not invalid for failure to publish on
website................ 257
252A..... Dataset for Murray‑Darling Basin to be publicly
available............. 258
253........ Review of operation of Act............................................................. 258
254........ Compensation for acquisition of property....................................... 259
255........ Act does not authorise compulsory acquisition of
water access rights 259
255AA.. Mitigation of unintended diversions................................................ 260
255A..... Application of water charge rules in Basin States
that are not referring States 260
255B..... Application of water market rules in Basin States
that are not referring States 261
256........ Regulations..................................................................................... 261
Schedule 1—The Murray‑Darling Basin Agreement 263
Schedule 1A—The Murray‑Darling Basin 507
Schedule 2—Basin water charging objectives and principles 508
Part 1—Preliminary 508
1............ Objectives and principles................................................................ 508
Part 2—Water charging objectives 509
2............ Water charging objectives............................................................... 509
Part 3—Water charging principles 510
3............ Water storage and delivery.............................................................. 510
4............ Cost recovery for planning and management.................................. 511
5............ Environmental externalities............................................................. 511
6............ Benchmarking
and efficiency reviews............................................. 511
Schedule 3—Basin water market and trading objectives and
principles 512
1............ Definitions...................................................................................... 512
2............ Objectives and principles................................................................ 512
3............ Basin water market and trading objectives...................................... 513
4............ Basin water market and trading principles....................................... 513
Schedule 3A—Risk assignment framework 516
Part 1—Clauses 48 to 50 of the National Water
Initiative 516
Part 2—Clause 10.1.3 of the Agreement on Murray‑Darling
Basin Reform of 3 July 2008 517
Schedule 4—Transitional water resource plans 518
Notes 521
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
Part 1—Preliminary
1
Short title [see
Note 1]
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.
Agreement has the meaning given by section 18A.
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 has the meaning given by section 18A.
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 Chief Executive and 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 has the meaning
given by section 18A.
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 website (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 website (www.austlii.edu.au).
Border Rivers water sharing arrangements has
the meaning given by subsection 86F(3).
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 website (www.austlii.edu.au).
Chief Executive means the Chief Executive of
the Authority.
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 website (www.austlii.edu.au).
Commissioner has the meaning given by
subsection 239J(3).
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.
Commonwealth water legislation has the
meaning given by section 250A.
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
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.
conveyance water has the meaning given by
subsection 86A(4).
critical human water needs has the meaning
given by subsection 86A(2).
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 website (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).
former MDB Agreement has the meaning given by
section 239A.
former Murray‑Darling Basin Ministerial Council
has the meaning given by section 239A.
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 website (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.
law of a referring State means a law of, or
in force in, a referring State but does not include a law of the Commonwealth
in force in the referring State.
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.
Living Murray Initiative has the meaning
given by subsection 18H(2).
Living Murray Initiative assets has the meaning
given by subsection 239E(2).
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.
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 has the meaning given by
section 18A.
Murray‑Darling Basin Commission has the
meaning given by section 239A.
Murray‑Darling Basin Ministerial Council has
the meaning given by section 18A.
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.
non‑Basin water access entitlement has the
meaning given by subsection 100C(5).
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)).
President has the meaning given by subsection
239J(2).
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 website (www.austlii.edu.au).
referring State has the meaning given by section 18B.
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.
River Murray Operations assets has the
meaning given by subsection 239D(2).
River Murray System has the meaning given by
subsection 86A(3).
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 website (www.austlii.edu.au).
salinity work means a work to reduce, or
maintain, salinity levels in the Murray‑Darling Basin.
State (except in section 18B) 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 has the
meaning given by subsection 86D(4).
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 asset has the meaning given by
subsection 239C(3).
transitional instrument has the meaning given
by subsection 239N(4).
transitional liability has the meaning given
by subsection 239F(3).
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
Application of the Acts Interpretation Act 1901 to Parts 1A, 2A, 4,
4A, 10A and 11A
(1) The Acts Interpretation Act 1901,
as in force on the day on which Schedule 1 to the Water Amendment Act
2008 commences, applies to Parts 1A, 2A, 4, 4A, 10A and 11A.
(2) Amendments of the Acts Interpretation
Act 1901 made after that day do not apply to those Parts.
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
This Act
(other than Parts 1A, 2A, 4, 4A, 10A and 11A) 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 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.
9A
Constitutional basis of Parts 1A, 2A, 4, 4A, 10A and 11A
Operation in a Basin State
(1) The operation of Parts 1A, 2A, 4,
4A, 10A and 11A in a referring State that is a Basin State is based on:
(a) the legislative powers that the
Commonwealth Parliament has under section 51 of the Constitution (other
than paragraph 51(xxxvii)); and
(b) the legislative powers that the
Commonwealth Parliament has in respect of matters to which those Parts relate
because those matters are referred to it by the Parliament of the referring
State under paragraph 51(xxxvii) of the Constitution.
Note: The State reference fully supplements the
Commonwealth Parliament’s other powers by referring the matters to the
Commonwealth Parliament to the extent to which they are not otherwise included
in the legislative powers of the Commonwealth Parliament.
(2) The operation of Parts 1A, 2A, 4 and
11A in a Basin State (other than the Australian Capital Territory) that is not
a referring State is based on the legislative powers that the Commonwealth
Parliament has under section 51 of the Constitution (other than paragraph
51(xxxvii)).
Operation in a State that is not a Basin State
(3) The operation of Parts 4A and 11A in
a referring State that is not a Basin State is based on:
(a) the legislative powers that the
Commonwealth Parliament has under section 51 of the Constitution (other
than paragraph 51(xxxvii)); and
(b) the legislative powers that the
Commonwealth Parliament has in respect of matters to which those Parts relate
because those matters are referred to it by the Parliament of the referring
State under paragraph 51(xxxvii) of the Constitution.
Note: The State reference fully supplements the
Commonwealth Parliament’s other powers by referring the matters to the
Commonwealth Parliament to the extent to which they are not otherwise included
in the legislative powers of the Commonwealth Parliament.
Operation in the Australian Capital Territory
(4) The operation of Parts 1A, 2A, 4 and
10A in the Australian Capital Territory is based on:
(a) the legislative powers that the
Commonwealth Parliament has under section 122 of the Constitution to make
laws for the government of that Territory; and
(b) the legislative powers that the
Commonwealth Parliament has under section 51 of the Constitution (other
than paragraph 51(xxxvii)).
Operation in the Northern Territory
(5) The operation of Part 4A in the
Northern Territory is based on:
(a) the legislative powers that the
Commonwealth Parliament has under section 122 of the Constitution to make
laws for the government of that Territory; and
(b) the legislative powers that the
Commonwealth Parliament has under section 51 of the Constitution (other
than paragraph 51(xxxvii)).
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
(iia) water service
infrastructure that carries water that has been taken from a Basin water
resource; 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 the 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).
12A
Actions of the Murray‑Darling Basin Ministerial Council
If this Act requires or permits the
Murray‑Darling Basin Ministerial Council to do a thing, the Murray‑Darling
Basin Ministerial Council is required or permitted to do the thing in accordance
with any requirements specified in the Agreement.
13 The
Native Title Act 1993 not affected
Nothing in this Act affects the
operation of the Native Title Act 1993.
Part 1A—The Murray‑Darling Basin Agreement
Division 1—Preliminary
18A
Definitions
In this Act:
Agreement means the Murray‑Darling Basin
Agreement, as amended from time to time in accordance with that agreement and
as set out in Schedule 1.
Note: The Murray‑Darling Basin Agreement operates as
an agreement between the parties. The text of the Agreement is set out in
Schedule 1, and as such it has further effect as provided for by this Act
(for example, see sections 18E and 18F).
Authority means the Murray‑Darling Basin
Authority established by section 171.
Basin Officials Committee means the committee
established under the Agreement.
Murray‑Darling Basin means the area falling
within the boundary described in the dataset that:
(a) is titled Murray‑Darling Basin
Boundary—Water Act 2007; and
(b) has a dataset scale of 1:250,000;
and
(c) specifies the boundary of the
Murray‑Darling drainage division derived from the dataset that is titled
“Australia’s River Basins 1997” and is dated 30 June 1997; and
(d) is held by the Commonwealth.
Note 1: An indicative map of this area is set out in
Schedule 1A.
Note 2: A copy of the dataset can be obtained from the
Department’s website: see section 252A.
Murray‑Darling Basin Ministerial Council has
the same meaning as Ministerial Council in the Agreement.
18B
Meaning of referring State
Reference of matters by State Parliament to
Commonwealth Parliament
(1) A State is a referring State
if the Parliament of the State has referred the matters covered by subsections (3)
and (4) in relation to the State to the Parliament of the Commonwealth for the
purposes of paragraph 51(xxxvii) of the Constitution:
(a) if and to the extent that the
matters are not otherwise included in the legislative powers of the Parliament
of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii)
of the Constitution); and
(b) if and to the extent that the
matters are included in the legislative powers of the Parliament of the State.
This subsection has effect subject to subsections (5)
and (6).
(2) A State is a referring State
even if a law of the State provides that the reference to the Parliament of the
Commonwealth of either or both of the matters covered by subsections (3)
and (4) is to terminate in particular circumstances.
Reference covering initial provisions of this Act
(3) This subsection covers the matters to
which the referred provisions for the State in question relate to the extent of
making laws with respect to those matters by including the referred provisions
in this Act.
Reference covering amendments of this Act
(4) This subsection covers:
(a) if the State in question is a
Basin State—the referred subject matters; and
(b) in any case—the matter of the
application, in relation to water resources that are not Basin water resources,
of provisions of this Act dealing with the subject matters specified in paragraphs (c)
and (d) of the definition of referred subject matters in subsection (9)
(being an application of a kind that is authorised by the law of the State in
question);
to the extent of the making of laws with respect to those
matters by making express amendments of this Act.
Effect of termination of reference
(5) A State ceases to be a referring
State if the State’s initial reference terminates.
(6) Subject to subsections (7) and (8),
a State ceases to be a referring State if the State’s amendment
reference terminates.
(7) A State does not cease to be a referring
State because of the termination of its amendment reference if:
(a) the termination is effected by the
Governor of that State fixing a day by proclamation as the day on which the
reference terminates; and
(b) the day fixed is no earlier than
the first day after the end of the period of 6 months beginning on the day on
which the proclamation is published; and
(c) that State’s amendment reference,
and the amendment reference of every other referring State, terminate on the
same day.
(8) A State does not cease to be a referring
State because of the termination of its amendment reference if:
(a) a Bill is introduced into a House
of the Parliament that includes a proposed amendment of the referred
provisions, or that would, if enacted, have the effect that this Act would no
longer contain:
(i) subsections 22(10),
(11) and (12), or provisions having substantially the same effect; or
(ii) Part 11A, or
provisions having substantially the same effect; and
(b) the Governor of the State, by
proclamation, issues a notice stating that:
(i) the State has not
agreed to the amendment; and
(ii) this subsection will
apply in relation to the State from a day specified in the notice; and
(c) the State Minister of that State
who is a member of the Murray‑Darling Basin Ministerial Council informs the
other members of the Murray‑Darling Basin Ministerial Council that the notice
was issued; and
(d) the Governor does not revoke the
notice before:
(i) the day specified in
the notice passes; or
(ii) the Bill is enacted in
a form that includes that amendment or a substantially similar amendment;
whichever happens later.
Definitions
(9) In this section:
amendment includes the insertion, omission,
repeal, substitution, addition or relocation of words or matter.
amendment reference of a State means the
reference by the Parliament of the State to the Parliament of the Commonwealth
of the matters covered by subsection (4).
express amendment of this Act means the
direct amendment of:
(a) the referred provisions; or
(b) definitions in this Act of terms
used in the referred provisions;
but does not include the enactment by a Commonwealth Act
of a provision that has, or will have, substantive effect otherwise than as
part of the text of the referred provisions or those definitions.
initial reference of a State means the
reference by the Parliament of the State to the Parliament of the Commonwealth
of the matters covered by subsection (3).
referred provisions, for a State, means:
(a) if the State is a Basin State—this
Part and Parts 2A, 4, 4A, 10A and 11A, as originally enacted by the Water
Amendment Act 2008, to the extent to which they deal with matters that are
included in the legislative powers of the Parliament of the State; or
(b) if the State is not a Basin
State—Parts 4A and 11A, as originally enacted by the Water Amendment
Act 2008, to the extent to which they deal with matters that are included
in the legislative powers of the Parliament of the State.
referred subject
matters means any of the following:
(a) the
powers, functions and duties conferred on Commonwealth agencies that:
(i) relate to Basin water
resources; and
(ii) are conferred by or
under the Agreement;
(b) the management of Basin water resources
to meet critical human water needs;
(c) water charging in relation to
Basin water resources (other than for urban water supply after the removal of
the water from a Basin water resource);
(d) the transformation of entitlements
to water from a Basin water resource to enable trading in those water
entitlements;
(e) the transfer of assets, rights and
liabilities of the Murray‑Darling Basin Commission to the Authority, and other
transitional matters relating to the replacement of the Murray‑Darling Basin
Commission.
(10) A reference in this section to a Part of
this Act includes a reference to any Schedule to this Act that contains
provisions enacted for the purposes of that Part.
Division 2—The Murray‑Darling Basin Agreement
18C
Amendment of Schedule 1
(1) The regulations may make amendments to
Schedule 1 by incorporating into the Agreement amendments made to, and in
accordance with, the Murray‑Darling Basin Agreement.
Note 1: The Murray‑Darling Basin Agreement requires the
agreement of the Murray‑Darling Basin Ministerial Council to any amendments of
the Murray‑Darling Basin Agreement.
Note 2: Amendments of the Murray‑Darling Basin
Agreement, made in accordance with that agreement, operate as an agreement
between the parties. The text of the Agreement as set out in Schedule 1
will be amended accordingly, and as such it has further effect as provided for
by this Act (for example, see sections 18E and 18F). The amendment of the
Schedule by itself cannot amend the agreement between the parties.
(2) A reference in subsection (1) to
amendment includes a reference to the insertion, omission, repeal,
substitution, addition or relocation of words or matter.
(3) Part 6 (sunsetting) of the Legislative
Instruments Act 2003 does not apply to regulations made for the purposes of
this section.
18D
Protocols made by the Authority
A protocol made by the Authority under a
Schedule to the Agreement is a legislative instrument, but neither section 42
(disallowance) nor Part 6 (sunsetting) of the Legislative Instruments
Act 2003 applies to the protocol.
Division 3—Functions, powers and duties under the Agreement
18E
Additional functions, powers and duties of the Authority
(1) Without limiting sections 172 and
173, the Authority has, in a referring State or the Australian Capital
Territory, the functions, powers and duties that:
(a) are expressed to be conferred on
it by or under the Agreement; and
(b) relate to the water and other
natural resources of the Murray‑Darling Basin.
(2) In performing these functions and duties
and exercising these powers, the Authority must comply with any requirements
under the Agreement.
(3) The Authority has, in connection with:
(a) the performance of its functions
and duties under this Part; and
(b) the exercise of its powers under
this Part;
such powers in a referring State or the Australian Capital
Territory as it has in connection with the performance of its other functions
under this Act.
(4) However, the application of subsection (3)
to the Authority’s powers under Part 10 is limited to the Authority’s
powers under:
(a) Subdivision A of Division 2
of that Part (Authorised officers); and
(b) Subdivision B of Division 2
of that Part (Powers to enter land etc. other than for compliance purposes);
and
(c) Division 3 of that Part
(Information gathering).
(5) Part 10 so applies as if:
(a) the application of that Part in
relation to premises in, or information held in, a referring State or the
Australian Capital Territory were not limited by section 216 or 219 or by
subsection 238(1); and
(b) references in section 221 to
the Authority’s functions under section 219 included references to the
Authority’s functions under this Part.
(6) However:
(a) an authorised officer must not
enter premises under Subdivision B of Division 2 of that Part as applied
by this section unless he or she reasonably believes this is necessary for the
performance of any of the Authority’s functions under this Part; and
(b) Subdivision B of Division 2
of that Part as applied by this section does not extend to entering premises
for the purposes of:
(i) monitoring compliance
with this Part or regulations made for the purposes of this Part; or
(ii) searching for
evidential material; and
(c) the Authority must not require a
person to give information under Division 3 of that Part as applied by
this section unless the Authority has reason to believe that information
relating to a matter:
(i) relevant to the
performance of the Authority’s functions under this Part; and
(ii) specified in
regulations made for the purposes of this paragraph;
is in the person’s possession,
custody or control (whether held electronically or in any other form).
Note: The conferral of functions, powers and duties
on the Authority by this section does not otherwise give the Agreement any
effect as a law of the Commonwealth.
18F
Additional functions, powers and duties of the Basin Community Committee
(1) Without limiting section 202, the
Basin Community Committee has, in a referring State or the Australian Capital
Territory, the functions, powers and duties that:
(a) are expressed to be conferred on
it by or under the Agreement; and
(b) relate to the water and other
natural resources of the Murray‑Darling Basin.
(2) In performing these functions and duties
and exercising these powers, the Basin Community Committee must comply with any
requirements under the Agreement.
Note: The conferral of functions, powers and duties
on the Basin Community Committee by this section does not otherwise give the
Agreement any effect as a law of the Commonwealth.
18G
Management of money and assets
The Authority must deal with:
(a) any money under the Agreement; and
(b) any assets it acquires with that
money; and
(c) any assets that vest in the
Authority under section 239C;
in a way that is in accordance with the Agreement and
consistent with the purposes of the Agreement.
18H
Managing water access rights etc. for the Living Murray Initiative
(1) The Authority must, if the Living Murray
Initiative so provides, manage the rights and interests that:
(a) are:
(i) water access rights,
water delivery rights, irrigation rights or other similar rights relating to
water; or
(ii) interests in, or in
relation to, such rights; and
(b) are held for the purposes of the
Living Murray Initiative;
in accordance with and in a way that gives effect to the
Living Murray Initiative.
(2) The Living Murray Initiative
is the Intergovernmental Agreement on Addressing Water Overallocation and
Achieving Environmental Objectives in the Murray‑Darling Basin of 25 June
2004 read together with:
(a) the Supplementary
Intergovernmental Agreement on Addressing Water Overallocation and Achieving
Environmental Objectives in the Murray‑Darling Basin of 14 July 2006; and
(b) arrangements referred to in clause 3.9.2
of the Agreement on Murray‑Darling Basin Reform‑Referral.
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 1: See Articles 7 and 8 of the Biodiversity
Convention.
Note 2: The Basin Plan must also be prepared having
regard to critical human water needs (see Part 2A).
(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; and
(c) take account of the ecological
character descriptions of:
(i) all declared Ramsar
wetlands within the Murray‑Darling Basin; and
(ii) all other key
environmental sites within the Murray‑Darling Basin;
prepared in accordance with the
National Framework and Guidance for Describing the Ecological Character of
Australia’s Ramsar Wetlands endorsed by the Natural Resource Management
Ministerial Council.
Note 1: See Article 3 of the Ramsar Convention.
Note 2: A copy of the National Framework and Guidance
for Describing the Ecological Character of Australia’s Ramsar Wetlands may be
found on the Department’s website.
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;
(ix) the State water sharing
arrangements;
(x) any other arrangements
between States for the sharing of water.
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 first 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.
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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.
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7
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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.
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The temporary diversion provision must comply with section 24.
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8
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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.
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The method must include provision for accounting for any
trading, or transfer, of tradeable water rights.
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9
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An environmental watering plan.
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The environmental watering plan must comply with section 28.
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10
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A water quality and salinity management plan.
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The water quality and salinity management plan must comply
with section 25.
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11
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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.
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12
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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.
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13
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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.
|
Note: The Basin Plan must also include matters
relating to critical human water needs (see Part 2A).
(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
former MDB Agreement (other than paragraph 15(3)(c) of that Schedule); or
(ii) the Protocols to the
former MDB Agreement made under Schedule E to the former MDB Agreement (other
than the Protocol on Access and Exit Fees).
(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 of
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.
(1A) Subsection (1) does not apply in
relation to any of the matters included or specified in the Basin Plan under
Part 2A (Critical human water needs).
Note: For the effect of the Basin Plan on the
Authority and other agencies of the Commonwealth in relation to these matters,
see section 86G.
(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 Basin Officials Committee, 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.
(1A) Subsection (1) does not apply in
relation to any of the matters included or specified in the Basin Plan under
Part 2A (Critical human water needs).
Note: For the effect of the Basin Plan on other
agencies and persons in relation to these matters, see section 86H.
(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.
(6) Subsections (1), (2), (3) and (4):
(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 tradeable 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).
(7) Subsections (2), (3), (4) and (5):
(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 250E, 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 250B, 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 together with any document prepared under
paragraph 43(11)(a) or 43A(6)(d).
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
(c) publish a copy of the document on
its website.
43A
Authority to seek comments from Murray‑Darling Basin Ministerial Council on
proposed Basin Plan
(1) This section applies once the Authority
has complied with section 43 in relation to a proposed Basin Plan.
(2) Without limiting subsection 42(1), the
Authority must give each member of the Murray‑Darling Basin Ministerial Council
a copy of the proposed Basin Plan (incorporating any alterations it has made
under paragraph 43(10)(b)).
(3) The copy must be given together with the
Authority’s advice to the Murray‑Darling Basin Ministerial Council on the
likely socio‑economic implications of any reductions in the long‑term average
sustainable diversion limits proposed in the proposed Basin Plan.
(4) The Murray‑Darling Basin Ministerial
Council must, within 6 weeks after the Authority complied with subsection (2),
give the Authority a written notice:
(a) stating that neither the Murray‑Darling
Basin Ministerial Council nor any of its members have any comments on the
proposed Basin Plan; or
(b) stating that the Murray‑Darling
Basin Ministerial Council, or one or more of its members, disagrees with one or
both of the following:
(i) the long‑term average
sustainable diversion limits proposed in the proposed Basin Plan;
(ii) any other aspect of
the proposed Basin Plan in relation to which the Minister may give a direction
under subparagraph 44(3)(b)(ii);
and specifying the nature of the
disagreement.
Note: Subsection 44(5) specifies matters in relation
to which the Minister must not give a direction.
(5) If the Murray‑Darling Basin Ministerial
Council does not give the Authority such a notice within that period of 6
weeks, the Murray‑Darling Basin Ministerial Council and its members are taken
not to have any comments on the proposed Basin Plan.
(6) If the Murray‑Darling Basin Ministerial
Council gives the Authority a notice that states under paragraph (4)(b)
matters with which the Murray‑Darling Basin Ministerial Council, or one or more
of its members, disagrees, the Authority must:
(a) consider the matters; and
(b) undertake such consultations in
relation to the matters as the Authority considers necessary or appropriate;
and
(c) either:
(i) confirm the proposed
Basin Plan, and give each member of the Murray‑Darling Basin Ministerial
Council a copy of the unaltered proposed Basin Plan, together with the
Authority’s views on the matters; or
(ii) alter the proposed
Basin Plan, and give each member of the Murray‑Darling Basin Ministerial
Council a copy of the altered proposed Basin Plan, together with the
Authority’s views on the matters; 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 of the
Plan, or the views, given to the members of the Murray‑Darling Basin
Ministerial Council under paragraph (c); and
(e) publish on its website a copy of
the document prepared under paragraph (d).
(7) The Murray‑Darling Basin Ministerial
Council must, within 3 weeks after the Authority complied with paragraph (6)(c),
give the Minister a written notice:
(a) stating that neither the Murray‑Darling
Basin Ministerial Council nor any of its members express any further views on
the proposed Basin Plan; or
(b) setting out the views of the Murray‑Darling
Basin Ministerial Council, or one or more of its members, on one or both of the
following:
(i) the long‑term average
sustainable diversion limits proposed in the proposed Basin Plan;
(ii) any other aspect of
the proposed Basin Plan in relation to which the Minister may give a direction
under subparagraph 44(3)(b)(ii).
Note: Subsection 44(5) specifies matters in relation
to which the Minister must not give a direction.
(8) If the Murray‑Darling Basin Ministerial
Council does not give the Minister such a notice within that period of 3 weeks,
the Murray‑Darling Basin Ministerial Council and its members are taken not to
express any further views on the proposed Basin Plan.
44
Minister may adopt Basin Plan
(1) Within 12 weeks 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 6 weeks 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).
(5A) To avoid doubt, subsections 43A(5) and (8)
do not affect the Minister’s power to give suggestions or directions to the
Authority under this section.
(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 together with any
document prepared under paragraph 47(11)(a) or 47A(5)(d).
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
(c) publish a copy of the document on
its website.
47A
Authority to seek comments from Murray‑Darling Basin Ministerial Council on
proposed amendment of Basin Plan
(1) This section applies once the Authority
has complied with section 47 in relation to a proposed amendment of the
Basin Plan.
(2) Without limiting subsection 46(1), the
Authority must give each member of the Murray‑Darling Basin Ministerial Council
a copy of the proposed amendment of the Basin Plan (incorporating any
alterations it has made under paragraph 47(10)(b)).
(3) The Murray‑Darling Basin Ministerial
Council must, within 6 weeks after the Authority complied with subsection (2),
give the Authority a written notice:
(a) stating that neither the Murray‑Darling
Basin Ministerial Council nor any of its members have any comments on the
proposed amendment; or
(b) stating that the Murray‑Darling
Basin Ministerial Council, or one or more of its members, disagrees with one or
both of the following:
(i) the long‑term average
sustainable diversion limits proposed in the proposed amendment;
(ii) any other aspect of
the proposed amendment in relation to which the Minister may give a direction
under subparagraph 48(3)(b)(ii);
and specifying the nature of the
disagreement.
Note: Subsection 48(5) specifies matters in relation
to which the Minister must not give a direction.
(4) If the Murray‑Darling Basin Ministerial
Council does not give the Authority such a notice within that period of 6
weeks, the Murray‑Darling Basin Ministerial Council and its members are taken
not to have any comments on the proposed amendment.
(5) If the Murray‑Darling Basin Ministerial
Council gives the Authority a notice that states under paragraph (3)(b)
matters with which the Murray‑Darling Basin Ministerial Council, or one or more
of its members, disagrees, the Authority must:
(a) consider the matters; and
(b) undertake such consultations in
relation to the matters as the Authority considers necessary or appropriate;
and
(c) either:
(i) confirm the proposed
amendment, and give each member of the Murray‑Darling Basin Ministerial Council
a copy of the unaltered proposed amendment, together with the Authority’s views
on the matters; or
(ii) alter the proposed
amendment, and give each member of the Murray‑Darling Basin Ministerial Council
a copy of the altered proposed amendment, together with the Authority’s views
on the matters; 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 of the
Plan, or the views, given to the members of the Murray‑Darling Basin Ministerial
Council under paragraph (c); and
(e) publish on its website a copy of
the document prepared under paragraph (d).
(6) The Murray‑Darling Basin Ministerial
Council must, within 3 weeks after the Authority complied with paragraph (5)(c),
give the Minister a written notice:
(a) stating that neither the Murray‑Darling
Basin Ministerial Council nor any of its members express any further views on
the proposed amendment; or
(b) setting out the views of the
Murray‑Darling Basin Ministerial Council, or one or more of its members, on one
or both of the following:
(i) the long‑term average
sustainable diversion limits proposed in the proposed amendment;
(ii) any other aspect of
the proposed Basin Plan in relation to which the Minister may give a direction
under subparagraph 48(3)(b)(ii).
Note: Subsection 48(5) specifies matters in relation
to which the Minister must not give a direction.
(7) If the Murray‑Darling Basin Ministerial
Council does not give the Minister such a notice within that period of 3 weeks,
the Murray‑Darling Basin Ministerial Council and its members are taken not to
express any further views on the proposed amendment.
48
Minister may adopt amendment of Basin Plan
(1) Within 12 weeks 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).
(5A) To avoid doubt, subsections 47A(4) and (7)
do not affect the Minister’s power to give suggestions or directions to the
Authority under this section.
(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
49A
Authority to advise Murray‑Darling Basin Ministerial Council on impacts of
Basin Plan
(1) The Authority must give advice to the
Murray‑Darling Basin Ministerial Council on the impacts of the Basin Plan as
soon as possible after the end of the first 5 years after the Basin Plan takes
effect.
(2) The Authority must make a copy of the
advice available on the Authority’s website.
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 first 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 first 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.
(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 first 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 Basin Officials Committee, 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.
(6) Subsections (1), (2), (3) and (4):
(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 tradeable 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).
(7) Subsections (2), (3), (4) and (5):
(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 250E, 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 resource 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 resource 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 resource 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 a 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(6)(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 mediation.
(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 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.
74A
States applying the risk assignment framework
(1) The Minister must, in writing, determine
that a Basin State is a State to which this section applies if the Minister is
satisfied that a State water management law of the State:
(a) has applied the risk assignment
framework provided for in clauses 48 to 50 of the National Water
Initiative, read in conjunction with clause 10.1.3 of the Agreement on
Murray‑Darling Basin Reform of 3 July 2008; and
(b) has applied that framework by, and
at all times since:
(i) 30 June 2009; or
(ii) a later day specified
in the regulations.
Note: Clauses 48 to 50 of the National Water
Initiative and clause 10.1.3 of the Agreement on Murray‑Darling Basin
Reform of 3 July 2008 are set out in Schedule 3A.
(2) The day specified in regulations made for
the purposes of subparagraph (1)(b)(ii) must not be later than the day on
which the Basin Plan first takes effect.
(2A) The Minister is taken, on the commencement
of this section, to have made a determination under subsection (1) that
New South Wales is a State to which this section applies.
(3) The Minister must, in writing, revoke a
determination made under subsection (1) if satisfied that there is no
longer a State water management law of the State that gives effect to that
framework.
(4) In considering whether to make a
determination under subsection (1), or revoke it under subsection (3),
the Minister may ask the National Water Commission for advice.
(5) A determination made under subsection (1),
or a revocation under subsection (3), is not a legislative instrument.
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.
(1A) In working out the amount of the
Commonwealth Government policy component or the new knowledge component, any
reduction that is a result of matters referred to in clause 48 of the
National Water Initiative is to be disregarded.
Note: Clause 48 of the National Water
Initiative is set out in Part 1 of Schedule 3A.
(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 Basin State in which the
water resource plan area is located is not a State to which section 74A
applies, and 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); and
(c) if the Basin State in which the
water resource plan area is located is a State to which section 74A
applies—the Commonwealth’s share of the reduction also includes so much of the
new knowledge component (if any) as is worked out under subsection (3A).
(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.
(3A) The amount to be included in the
Commonwealth’s share of the reduction under paragraph (2)(c) is to be
worked out on the basis that, for reductions in the long‑term average
sustainable diversion limit for the water resources, or that part of the water
resources, of the water resource plan area in any 10 year period, the
Commonwealth’s share of the reductions:
(a) does not include so much of new
knowledge components of those reductions as does not exceed (in aggregate) 3% of
the relevant diversion limit; and
(b) includes all of so much of the new
knowledge components of those reductions as exceeds (in aggregate) 3% of the
relevant diversion limit.
(4) For the purposes of applying subsection (3)
or (3A) 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:
(i) if the Basin State in
which the water resource plan area is located is a State to which section 74A
applies, and a transitional water resource plan or an interim water resource
plan has effect for the area—the day on which that plan ceases to have effect;
or
(ii) in any other case—1 January
2015.
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 first 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 first 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 market 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 market 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 market 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 water 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.
(3A) In working out the amount of the
Commonwealth Government policy component or the new knowledge component, any
reduction that is a result of matters referred to in clause 48 of the
National Water Initiative is to be disregarded.
Note: Clause 48 of the National Water
Initiative is set out in Part 1 of Schedule 3A.
(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 first 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 first 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 market 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 market 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 market 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 for 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 2A—Critical human water needs
86A
Critical human water needs to be taken into account in developing Basin Plan
(1) Without limiting section 21, the
Basin Plan must be prepared having regard to the fact that the Commonwealth and
the Basin States have agreed:
(a) that critical human water needs
are the highest priority water use for communities who are dependent on Basin
water resources; and
(b) in particular that, to give effect
to this priority in the River Murray System, conveyance water will receive
first priority from the water available in the system.
(2) Critical human water needs
are the needs for a minimum amount of water, that can only reasonably be
provided from Basin water resources, required to meet:
(a) core human consumption
requirements in urban and rural areas; and
(b) those non‑human consumption
requirements that a failure to meet would cause prohibitively high social,
economic or national security costs.
(3) The River Murray System is
the aggregate of:
(a) the main course of the River
Murray upstream of the eastern boundary of South Australia; and
(b) all tributaries entering that part
of the main course upstream of Doctors Point (near Albury); and
(c) all effluents and anabranches of
that part of the main course; and
(d) the watercourses connecting Lake
Victoria to the main course; and
(e) the Darling River downstream of
the Menindee Lakes Storage; and
(f) the upper River Murray storages,
namely:
(i) Lake Victoria; and
(ii) the Menindee Lakes
Storage; and
(iii) the storages formed by
Dartmouth Dam and Hume Dam; and
(iv) the storages formed by
the weirs, and weirs and locks, described in Schedule A to the Agreement that
are upstream of the eastern boundary of South Australia; and
(g) the River Murray in South
Australia.
(4) Conveyance water is water
in the River Murray System required to deliver water to meet critical human
water needs as far downstream as Wellington in South Australia.
86B
Basin Plan to provide for critical human water needs
(1) The Basin Plan must:
(a) include a statement of the amount
of water required in each Basin State that is a referring State (other than
Queensland) to meet the critical human water needs of the communities in the
State that are dependent on the waters of the River Murray System; and
(b) include a statement of the amount
of conveyance water required to deliver the water referred to in paragraph (a);
and
(c) specify water quality trigger
points and salinity trigger points at which water in the River Murray System
becomes unsuitable for meeting critical human water needs.
(2) The reference in paragraph (1)(a) to
communities in a Basin State who are dependent on the waters of the River
Murray System does not include a reference to communities dependent on the
waters of the Edward‑Wakool System downstream of Stevens Weir.
86C
Additional matters relating to monitoring, assessment and risk management
(1) The Basin Plan must also specify:
(a) arrangements for monitoring
matters relevant to critical human water needs, including monitoring the
quality, quantity and flows of surface water, the health of ecosystems and
social impacts on communities; and
(b) the process for assessing, and
managing risks to critical human water needs associated with, inflow
prediction:
(i) in the River Murray
System; and
(ii) in relation to works
that are under the control of the body that is entitled, under the Snowy
Hydro Corporatisation Act 1997 of New South Wales, to the Snowy water
licence within the meaning of that Act; and
(c) the risk management approach for
inter‑annual planning relating to arrangements for critical human water needs
in future years.
(2) The risk management approach referred to
in paragraph (1)(c) must address the making of decisions about whether
water is:
(a) made available, in a particular
year, for uses other than meeting critical human water needs; or
(b) set aside for critical human water
needs in future years.
86D
Additional matters relating to Tier 2 water sharing arrangements
(1) The Basin Plan must also:
(a) specify the conditions under
which, due to the likelihood that the State water sharing arrangements that
would apply but for this Part (Tier 1 water sharing arrangements)
will not ensure that there is enough water to meet conveyance water needs:
(i) the Tier 1 water
sharing arrangements cease to apply; and
(ii) other State water
sharing arrangements (Tier 2 water sharing arrangements),
provided for in the Agreement, commence; and
(b) specify the conditions under which
Tier 2 water sharing arrangements cease to apply and Tier 1 water sharing
arrangements recommence; and
(c) include a reserves policy that,
for periods during which Tier 2 water sharing arrangements apply:
(i) specifies the annual
volume of water required to be reserved to meet the shortfall in conveyance
water worked out under subsection (2); and
(ii) specifies the extent
to which this volume may vary between years; and
(iii) specifies the
arrangements that are to apply to ensure that the volume of water required to
meet the shortfall in conveyance water will be reserved and provided; and
(iv) takes into account the
potential inputs from the Murrumbidgee, Darling and Goulburn Rivers; and
(d) specify arrangements for carrying
water over in storage from one year to another for New South Wales, Victoria
and South Australia; and
(e) provide for any other matters
necessary to give effect to arrangements for sharing water in the River Murray
System and in the Murrumbidgee, Darling and Goulburn Rivers in order to provide
conveyance water.
(2) The shortfall in conveyance water is
worked out for the purposes of subparagraph (1)(c)(i) by subtracting:
(a) the amount of conveyance water
referred to in paragraph 86B(1)(b); from
(b) the minimum inflow sequence to the
River Murray System from:
(i) natural flows; and
(ii) works that are under
the control of the body that is entitled, under the Snowy Hydro
Corporatisation Act 1997 of New South Wales, to the Snowy water licence within
the meaning of that Act.
(3) The arrangements referred to in paragraph (1)(d)
must:
(a) recognise South Australia’s right,
as provided for in clauses 91 and 130 of the Agreement, to store its
entitlement to water; and
(b) recognise that each of New South
Wales, Victoria and South Australia is responsible for meeting the critical
human water needs of that State, and will decide how water from its share is
used.
(4) State water sharing arrangements
are the provisions of the Agreement that deal with the sharing of surface water
in the River Murray System.
Note: The rules and accounting arrangements in the
Agreement partition the shared surface water resource of the River Murray
System between New South Wales and Victoria, and detail the entitlements to this
water by South Australia. The Agreement includes provisions about the way in
which the shares are defined, transferred and accounted for, access to and
sharing of the storages, access to flows at different times and accounting for
losses and overflows. All these provisions are used to determine the quantity
of water in each State’s share at any given time.
86E
Additional matters relating to Tier 3 water sharing arrangements
(1) The Basin Plan must also:
(a) specify the conditions under
which, due to one or more of the circumstances referred to in subsection (2):
(i) Tier 2 water sharing
arrangements cease to apply; and
(ii) other arrangements (Tier
3 water sharing arrangements), provided for in the Agreement, commence;
and
(b) specify the conditions under which
Tier 3 water sharing arrangements cease to apply and Tier 2 water sharing
arrangements recommence.
(2) For the purposes of paragraph (1)(a),
the circumstances are:
(a) there are extreme and
unprecedented low levels of water availability in the River Murray System; or
(b) there is extreme and unprecedented
poor water quality in the water available in the River Murray System to meet
critical human water needs; or
(c) there is an extremely high risk
that water will not be available in the River Murray System to meet critical
human water needs during the next 12 months.
86F
Emergency responses to the reaching of trigger points
(1) If a water quality trigger point or
salinity trigger point referred to in paragraph 86B(1)(c) is reached, the Authority
must:
(a) in consultation with the Basin
Officials Committee, formulate an emergency response to ensure that water in
the River Murray System that is available to meet critical human water needs is
returned to a state suitable for meeting critical human water needs; and
(b) subject to subsection (2),
take the action necessary to implement the emergency response.
(2) The Authority must not take any action
under paragraph (1)(b) that affects State water sharing arrangements or
Border Rivers water sharing arrangements unless the Murray‑Darling Basin
Ministerial Council has agreed to the action.
(3) Border Rivers water sharing
arrangements are the agreements ratified by:
(a) the New South Wales‑Queensland
Border Rivers Act 1947 of New South Wales; and
(b) the New South Wales‑Queensland
Border Rivers Act 1946 of Queensland;
that deal with the distribution and use of surface water.
86G
Effect of this Part on Authority and other agencies of the Commonwealth
(1) The Authority and other agencies of the
Commonwealth must perform their functions, and exercise their powers,
consistently with, and in a manner that gives effect to, the matters included
or specified in the Basin Plan under this Part.
(2) Subsection (1) does not apply to the
performance of a function, or the exercise of a power, that affects State water
sharing arrangements or Border Rivers water sharing arrangements, unless:
(a) the Murray‑Darling Basin
Ministerial Council has agreed to the Basin Plan applying to the performance of
the function or the exercise of the power; or
(b) the performance of the function or
the exercise of the power takes place at a time when, under clause 135 of
the Agreement, the provisions of the Basin Plan required by this Part are taken
to be a Schedule to the Agreement.
(3) To avoid doubt, subsection (1) does
not apply to the Authority’s functions and powers under this Part.
86H
Effect of this Part on other agencies and persons
(1) The Basin Officials Committee, an agency
of a Basin State that is a referring State or an agency of the Australian
Capital Territory must not:
(a) do an act in relation to Basin
water resources if the act is inconsistent with any of the matters included or
specified in the Basin Plan under this Part; or
(b) fail to do an act in relation to
Basin water resources if the failure to do that act is inconsistent with any of
those matters.
(2) Subsection (1) applies to an act of
the Basin Officials Committee, an agency of a Basin State that is a referring
State or an agency of the Australian Capital Territory only if the act is one
that relates to the use or management of the Basin water resources.
(3) An operating authority, an infrastructure
operator or the holder of a water access right must not, in a Basin State that
is a referring State, or in the Australian Capital Territory:
(a) do an act in relation to Basin
water resources if the act is inconsistent with any of the matters included or
specified in the Basin Plan under this Part; or
(b) fail to do an act in relation to
Basin water resources if the failure to do that act is inconsistent with any of
those matters.
(4) Subsection (1) or (3) does not apply
to an act, or failure to act, that affects State water sharing arrangements or
Border Rivers water sharing arrangements, unless:
(a) the Murray‑Darling Basin
Ministerial Council has agreed to the Basin Plan applying to the act or
failure; or
(b) the act or failure takes place at
a time when, under clause 135 of the Agreement, the provisions of the
Basin Plan required by this Part are taken to be a Schedule to the Agreement.
86J
Additional powers of the Authority
(1) The Authority has, in connection with:
(a) the performance of its functions
and duties under this Part; and
(b) the exercise of its powers under
this Part;
such powers in a Basin State that is a referring State, or
in the Australian Capital Territory, as it has in connection with the
performance of its other functions under this Act.
(2) The application of subsection (1) to
the Authority’s powers under Part 10 in relation to premises in, or
information held in, a referring State or the Australian Capital Territory is
not limited by section 216 or 219 or by subsection 223(1) or 238(1).
(3) Part 10 so applies as if:
(a) references in section 221 to
the Authority’s functions under section 219 included references to the
Authority’s functions under this Part; and
(b) for the purposes of Subdivision C
of Division 2 of that Part, references in the definition of evidential
material in subsection 4(1) to Part 2 included references to this
Part; and
(c) references in subsections 224(3)
and 225(2) to Part 2 included references to this Part.
(4) However:
(a) an authorised officer must not
enter premises under Subdivision B of Division 2 of that Part as applied
by this section unless he or she reasonably believes this is necessary for the
performance of any of the Authority’s functions under this Part; and
(b) Subdivision B of Division 2
of that Part as applied by this section does not extend to entering premises
for the purposes of:
(i) monitoring compliance
with this Part or regulations made for the purposes of this Part; or
(ii) searching for
evidential material; and
(c) an authorised officer must not:
(i) enter premises under
Subdivision C of Division 2 of that Part as applied by this section; or
(ii) exercise any of the
powers described in subsection 223(2);
except to the extent that this
is reasonably necessary to monitor compliance with provisions of this Part or
regulations made for the purposes of this Part; and
(d) the Authority must not require a
person to give information under Division 3 of that Part as applied by
this section unless the Authority has reason to believe that information
relating to either of the following matters:
(i) the preparation and implementation
of the Basin Plan in the way provided for in this Part;
(ii) a matter that is
relevant to the performance of the Authority’s functions under this Part and
that is specified in regulations made for the purposes of this paragraph;
is in the person’s possession,
custody or control (whether held electronically or in any other form).
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) charges for water planning and
water management activities;
(d) a fee or charge (however
described) that relates to:
(i) access to water
service infrastructure; or
(ii) services provided in
relation to access to water service infrastructure; or
(iii) services provided
through the operation of water service infrastructure; or
(iv) the taking of water
from a water resource;
and is of a kind prescribed by
the regulations for the purposes of this paragraph.
(2) This Division applies to a charge of the
kind referred to in subsection (1) only to the extent to which the charge
relates to:
(a) Basin water resources; or
(b) water service infrastructure that
carries Basin water resources; or
(c) water service infrastructure that
carries water that has been taken from a Basin water resource; or
(d) water access rights, irrigation
rights or water delivery rights in relation to Basin water resources.
(3) However, this Division does not apply to
charges in respect of urban water supply activities beyond the point at which
the water has been removed from a Basin water resource.
(4) Charges to which this Division applies
are regulated water charges for the purposes of this Act.
92
Water charge rules
(1) The Minister may make rules (to be called
water charge rules), applying in Basin States that are referring
States and in the Australian Capital Territory, that:
(a) relate to regulated water charges;
and
(b) deal with one or more of the
matters referred to in subsection (3); and
(c) contribute to achieving the Basin
water charging objectives and principles set out in Schedule 2.
(2) Water charge rules are legislative
instruments.
(3) Water charge rules may deal with the
following matters:
(a) the rules that must be applied in
determining the amount of:
(i) regulated water
charges generally; or
(ii) regulated water
charges of a particular kind;
(b) the terms and conditions that may,
or must not, be imposed in relation to:
(i) regulated water
charges generally; or
(ii) regulated water
charges of a particular kind;
(c) the determination, or approval, by
the ACCC of regulated water charges;
(d) the process to be followed in
applying for, and making or giving, determinations or approvals of the kind
referred to in paragraph (c);
(e) the accreditation by the ACCC of
arrangements under which regulated water charges are determined or approved by
agencies of the States (instead of by the ACCC);
(f) the process to be followed in
applying for, and making or giving, accreditation of the kind referred to in paragraph (e);
(g) the terms and conditions on which
arrangements are accredited under rules made for the purposes of paragraph (e)
(including the determination of some or all of those terms and conditions by
the ACCC);
(h) the obligations to be imposed in
relation to the accreditation of arrangements under rules made for the purposes
of paragraph (e) (including the determination of some or all of those
obligations by the ACCC);
(i) the prohibition of regulated
water charges of a particular kind in the circumstances specified in the rules;
(j) the imposition of a requirement
on the person determining the amount of regulated water charges to publish:
(i) the details of the
charges; and
(ii) the process for
determining the amount of the charges;
(k) transitional arrangements for the
introduction of, or changes to, water charge rules;
(l) any matter that was dealt with
in:
(i) paragraph 15(3)(c) of
Schedule E to the former MDB Agreement; or
(ii) the Access and Exit
Fees Protocol to the former MDB Agreement made under paragraph 6(1)(f) of
Schedule E to the former MDB Agreement.
(4) Without limiting paragraph (3)(c),
water charge rules may specify the effect, and duration, of a determination or
approval of the kind referred to in that paragraph.
(5) Without limiting paragraph (3)(d),
water charge rules may specify:
(a) the information that an applicant
for a determination or approval of the kind referred to in paragraph (3)(c)
must give the ACCC in relation to the application; and
(b) the timing of the steps in the
process in which:
(i) the application is
made; and
(ii) the determination is
made or the approval is given.
(6) Without limiting paragraph (3)(e),
the rules made for the purposes of that paragraph may provide for the
circumstances in which:
(a) an accreditation may be revoked;
or
(b) the terms and conditions on which
an accreditation is given may be varied.
(7) Without limiting subsection (3),
particular water charge rules may be limited to either or both of the
following:
(a) particular kinds of regulated
water charges;
(b) regulated water charges in
relation to particular water resources.
(8) Without limiting subsection (3),
water charge rules may provide that a particular provision of the rules is a
civil penalty provision.
(9) The civil penalty for a contravention of
a provision specified under subsection (8) is 200 penalty units.
(10) Without limiting subsection (3),
water charge rules may provide that a person who suffers loss or damage as a
result of conduct, or an omission, of another person that contravenes the water
charge rules may recover the amount of the loss or damage by action against
that other person or against any person involved in the contravention.
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, or about proposed
amendments or revocations of rules.
(2) The ACCC must give the Minister advice
about the proposed water charge rules, or proposed amendments or revocations.
(3) In giving advice to the Minister about
proposed water charge rules, or proposed amendments or revocations, in relation
to regulated water charges payable to infrastructure operators, the ACCC must
have regard to:
(a) the governance arrangements of
those operators; and
(b) the current charging arrangements
of those operators; and
(c) the history of the charging
arrangements of those operators.
(4) The Minister must have regard to the
ACCC’s advice in making, amending or revoking the water charge rules.
(5) The regulations must provide for the
process that the Minister is to follow in making, amending or revoking water
charge rules.
(6) Without
limiting subsection (5), the regulations must provide for:
(a) consultations
with the Basin States and with infrastructure operators; and
(b) public consultations;
as part of the process of making, amending or revoking
water charge rules.
(7) If:
(a) the Minister makes, amends or
revokes water charge rules; and
(b) the rules do not reflect the
advice that the ACCC gave the Minister under subsection (2) in relation to
the rules, or the amendments or revocations;
the Minister must, when the rules, amendments or revocations
are laid before a House of the Parliament under the Legislative Instruments
Act 2003, also lay before that House a document that sets out:
(c) the respects in which the rules,
amendments or revocations do not reflect the advice given by the ACCC; and
(d) the Minister’s reasons for
departing from that advice.
94
ACCC to monitor water charges and compliance
(1) The ACCC is to monitor:
(a) regulated water charges; and
(b) compliance with the water charge
rules.
(2) The ACCC must give the Minister a report
on the results of such monitoring.
(3) The reports under subsection (2)
must be given to the Minister in accordance with an agreement between the
Minister and the ACCC.
95
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.
96
Transitional provisions relating to water charge rules
(1) A request that the Minister made to the
ACCC before the commencement of this section, under subsection 93(1) as in
force before that commencement, is taken after that commencement to be a
request that the Minister made under that subsection as in force after that
commencement.
(2) Regulations made before the commencement
of this section for the purposes of subsection 93(5) or (6) as in force before
that commencement continue in force after that commencement as if they were
made for the purposes of that subsection as in force after that commencement.
Division 2—Water market rules
97
Water market rules
(1) The Minister may make rules (to be called
water market rules), applying in Basin States that are referring
States and in the Australian Capital Territory, that:
(a) relate to an act that an
irrigation infrastructure operator does, or fails to do, in a way that prevents
or unreasonably delays arrangements being made that would reduce the share
component of a water access entitlement of the operator to allow:
(i) a person’s entitlement
to water under an irrigation right against the operator; or
(ii) a part of that
entitlement;
to be permanently transformed
into a water access entitlement that is held by someone other than the
operator; and
(b) contribute to achieving the Basin
water market and trading objectives and principles set out in Schedule 3.
Arrangements of the kind referred to in paragraph (a)
are referred to in this section as transformation arrangements.
(2) Water market rules are legislative
instruments.
(3) Without limiting subsection (1),
water market rules may deal with the restrictions that an irrigation
infrastructure operator may, or may not, impose in relation to:
(a) transformation arrangements; or
(b) the trading or transferring, by a
person who had an irrigation right against the operator, of a water access
entitlement, or part of such an entitlement, obtained as a result of
transformation arrangements.
(4) Without limiting subsection (3), the
restrictions referred to in that subsection include:
(a) restrictions imposed by including
provisions in a contract, arrangement or understanding between an irrigation
infrastructure operator and:
(i) a person who has an
irrigation right against the operator; or
(ii) a person who has a
water access entitlement, or part of such an entitlement, that the person
obtained as a result of transformation arrangements in relation to an
irrigation right the person had against the operator; and
(b) restrictions imposed by the way in
which an irrigation infrastructure operator conducts its operations.
(5) Without limiting subsection (1),
water market rules may:
(a) permit an irrigation infrastructure
operator to require security before allowing:
(i) a person who holds an
irrigation right against the operator to obtain a water access entitlement, or
part of such an entitlement, through transformation arrangements in relation to
the irrigation right; or
(ii) a person who has
obtained a water access entitlement, or part of such an entitlement, as a
result of transformation arrangements in relation to an irrigation right the
person had against the operator to trade or transfer the water access
entitlement, or part, obtained; and
(b) provide for transitional
arrangements in relation to contracts that have been entered into between an
irrigation infrastructure operator and another person before water market rules
are made or amended.
(6) Water market rules must not prevent an
irrigation infrastructure operator from:
(a) imposing, or requiring the payment
of, a regulated water charge; or
(b) requiring the approval of a person
who holds a legal or equitable interest in an irrigation right that a person
has against the operator before allowing transformation arrangements in
relation to that irrigation right.
(7) Without limiting subsection (1),
water market rules may provide that a particular provision of the rules is a
civil penalty provision.
(8) The civil penalty for a contravention of
a provision specified under subsection (7) is 200 penalty units.
(9) Without limiting subsection (1),
water market rules may provide that a person who suffers loss or damage as a
result of conduct, or an omission, of another person that contravenes the water
market rules may recover the amount of the loss or damage by action against
that other person or against any person involved in the contravention.
(10) No claim, action or demand may be made,
asserted or taken against an irrigation infrastructure operator for anything
done by the operator solely for the purpose of complying with water market
rules.
(11) Before the Basin Plan first takes effect,
this section applies in relation to any entitlement that is a perpetual or
ongoing entitlement, by or under a law of a State or Territory, to exclusive
access to a share of the Basin water resources as if the entitlement were a
water access entitlement.
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, or about proposed
amendments or revocations of rules.
(2) The ACCC must give the Minister advice
about the proposed water market rules, or proposed amendments or revocations.
(3) The Minister must have regard to the
ACCC’s advice in making, amending or revoking the water market rules.
(4) The regulations must provide for the
process that the Minister is to follow in making, amending or revoking water
market rules.
(5) Without limiting subsection (4), the
regulations must provide for:
(a) consultations with the Basin
States and with infrastructure operators; and
(b) public consultations;
as part of the process of making, amending or revoking
water market rules.
(6) If:
(a) the Minister makes, amends or
revokes water market rules; and
(b) the rules do not reflect the
advice that the ACCC gave the Minister under subsection (2) in relation to
the rules, or the amendments or revocations;
the Minister must, when the rules, amendments or
revocations are laid before a House of the Parliament under the Legislative
Instruments Act 2003, also lay before that House a document that sets out:
(c) the respects in which the rules,
amendments or revocations do not reflect the advice given by the ACCC; and
(d) the Minister’s reasons for
departing from that advice.
99
ACCC to monitor transformation arrangements and compliance
(1) The ACCC is to monitor:
(a) transformation arrangements; and
(b) compliance with the water market
rules.
(2) The ACCC must give the Minister a report
on the results of such monitoring.
(3) The reports under subsection (2)
must be given to the Minister in accordance with an agreement between the
Minister and the ACCC.
100
Transitional provisions relating to water market rules
(1) A request that the Minister made to the
ACCC before the commencement of this section, under subsection 98(1) as in
force before that commencement, is taken after that commencement to be a
request that the Minister made under that subsection as in force after that
commencement.
(2) Regulations made before the commencement
of this section for the purposes of subsection 98(4) or (5) as in force before
that commencement continue in force after that commencement as if they were
made for the purposes of that subsection as in force after that commencement.
Division 3—Miscellaneous
100A
Functions and powers of the ACCC
The ACCC has, for the purposes of this
Part:
(a) the functions and powers conferred
on it under Part 8 as an appropriate enforcement agency; and
(b) the functions and powers conferred
on it under section 155 of the Competition and Consumer Act 2010.
Part 4A—Extended operation of Basin water charge and water market
rules
100B
Extended operation of Basin water charge rules
(1) Water charge rules, and Division 1
of Part 4, apply in relation to all of the water resources in a referring
State, or part of a referring State, that are not Basin water resources if:
(a) a law of the State provides that
this section applies to the State, or that part of the State; and
(b) the regulations provide that this
section applies to the State, or that part of the State.
(2) Water charge rules, and Division 1
of Part 4, apply in relation to all of the water resources in the Northern
Territory, or part of the Territory, if:
(a) a law of the Northern Territory
provides that this section applies to the Territory, or that part of the
Territory; and
(b) the regulations provide that this
section applies to the Northern Territory, or that part of the Territory.
(3) However, water charge rules, and Division 1
of Part 4, do not apply in relation to:
(a) water resources that are
prescribed by the regulations for the purposes of this paragraph; and
(b) urban water supply activities
beyond the point at which the water has been removed from a water resource in
the referring State, or the Northern Territory.
(4) This section has effect despite
subsection 91(2).
(5) This section does not affect the
operation of Part 4 in relation to Basin water resources.
100C
Extended operation of Basin water market rules
(1) Water market rules, and Division 2
of Part 4, apply in relation to all the non‑Basin water access
entitlements in a referring State, or in a particular area of a referring
State, if:
(a) a law of the State provides that
this section applies in relation to the non‑Basin water access entitlements in
the State, or in that area of the State; and
(b) the regulations provide that this
section applies in relation to the non‑Basin water access entitlements in the
State, or in that area of the State.
(2) Water market rules, and Division 2
of Part 4, apply in relation to all the non‑Basin water access
entitlements in the Northern Territory, or in a particular area of the Northern
Territory if:
(a) a law of the Northern Territory
provides that this section applies in relation to the non‑Basin water access
entitlements in the Territory, or in that area of the Territory; and
(b) the regulations provide that this
section applies in relation to the non‑Basin water access entitlements in the
Territory, or in that area of the Territory.
(3) However, water market rules, and Division 2
of Part 4, do not apply in relation to non‑Basin water access entitlements
that are prescribed by the regulations for the purposes of this subsection.
(4) Water market rules, and Division 2
of Part 4, apply for the purposes of this section as if non‑Basin water
access entitlements were water access entitlements.
(5) A non‑Basin water access
entitlement is a perpetual or ongoing entitlement, by or under a law of
a State or Territory, to exclusive access to a share of the water resources of
an area in the State or Territory that are not Basin water resources.
(6) This section does not affect the
operation of Part 4 in relation to Basin water resources.
100D
Functions and powers of the ACCC
The ACCC has, for the purposes of this
Part:
(a) the functions and powers conferred
on it under Part 8 as an appropriate enforcement agency; and
(b) the functions and powers conferred
on it under section 155 of the Competition and Consumer Act 2010.
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.
(5) Paragraph (4)(a) does not prevent
the Commonwealth Environmental Water Holder making available water from the
Commonwealth environmental water holdings for the purposes of protecting or
restoring the environmental assets of an area outside the Murray‑Darling Basin
so as to:
(a) give effect to an agreement
between the Commonwealth and one or more States; and
(b) return water to the Snowy River.
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:
(c) the Commonwealth (including any
agency of the Commonwealth) holds for the purpose of the use of water by the
Commonwealth (including any agency of the Commonwealth) in the performance of
functions that are not related to its functions of water management under this
Act; or
(d) the Commonwealth (including any
agency of the Commonwealth) holds for the purposes of the Living Murray
Initiative (including rights or interests that vested in the Authority under
section 239C having been held for that purpose by the Murray‑Darling Basin
Commission before the commencement of Part 10A).
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 an individual’s water use, unless the water
information:
(i) is already published;
or
(ii) is otherwise publicly
available in a form that expressly identifies the individual’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:
(a) any raw data, or any value added
information product, that relates to:
(i) the availability, distribution,
quantity, quality, use, trading or cost of water; or
(ii) water access rights,
water delivery rights or irrigation rights; or
(b) any metadata relating to data of a
kind referred to in paragraph (a);
and includes contextual information relating to water
(such as land use information, geological information and ecological
information).
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 or 4A, regulations made for the purposes
of Part 4 or 4A, 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) 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, the water charge rules and the water market 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, the water charge rules and the water market 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 Basin State records, and
request the 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 Basin State records, and request the 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);
(ea) to develop, in consultation with
the Basin States, an integrated water model for the Murray‑Darling Basin;
(f) to implement, or coordinate the
implementation of, measures developed in accordance with paragraph (e);
(g) to make recommendations to:
(i) the Commonwealth; or
(ii) a Basin State; or
(iii) an agency of the
Commonwealth or a Basin State;
about any matter (including the
carrying out of any works or other measures by the Commonwealth, State or
agency) that the Authority considers could in any way affect the quality or
quantity of the Basin water resources;
(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.
Note: The Authority also has the functions conferred
on it by Part 1A (The Murray‑Darling Basin Agreement) and Part 2A
(Critical human water needs).
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 a Basin State or an agency of a Basin State; 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 other members of the Murray‑Darling
Basin Ministerial Council, and inform 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 power to do anything
that is necessary or convenient to be done for or in connection with the
performance of its functions.
Note 1: The Authority’s functions are set out in
section 172, and in Part 1A (The Murray‑Darling Basin Agreement) and
Part 2A (Critical human water needs).
Note 2: The Authority also has the powers conferred on
it by Parts 1A and 2A.
(2) The Authority’s powers include, but are
not limited to, the following powers:
(a) the power to acquire, hold and
dispose of real and personal property;
(b) the power to enter into contracts.
Note 1: Under paragraph 176(1)(c), the Authority may
also sue and be sued in its corporate name.
Note 2: Acquisitions of interests in land will be done
in accordance with the Lands Acquisition Act 1989 and the Financial
Management and Accountability Act 1997.
Note 3: The Chief Executive of the Authority may also
enter into contracts on behalf of the Commonwealth. See section 44 of the Financial
Management and Accountability Act 1997.
(3) Any real or personal property held by the
Authority is held for and on behalf of the Commonwealth.
Note: This subsection does not have the effect of
transferring property to the Authority.
(4) Any money received by the Authority is
received for and on behalf of the Commonwealth.
Note: This subsection does not have the effect of
transferring money to the Authority.
(5) To avoid doubt, a right to sue is taken
not to be personal property for the purposes of subsection (3).
174 Authority’s
financial liabilities are Commonwealth liabilities
(1) Any financial liabilities of the
Authority are taken to be liabilities of the Commonwealth.
Note: Clause 145 of the Agreement provides for
the Commonwealth to recover from the Basin States a proportion of any payment
made by the Commonwealth in respect of any act or omission of the Authority in
the execution in good faith of the powers vested in the Authority by or under
the Agreement.
(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, which
must be consistent with the objects of this Act, 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);
(e) the performance of a function that
is conferred under Part 1A or 2A.
(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:
(aa) a Chief Executive;
(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 Chief Executive must be appointed on
a full‑time basis.
(6) An Authority member (other than the Chief
Executive) 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.
(8) An act of the Authority is not invalid
because of a defect or irregularity in connection with the appointment of the
Chief Executive, Authority Chair or any other member of the Authority.
179
Period of appointment for Authority members
(1) An Authority member holds office for the
period specified in his or her instrument of appointment. The period must not
exceed 4 years.
(2) The sum of an Authority member’s first
appointment period and any period or periods of re‑appointment must not exceed
8 years (not including any periods of acting appointment).
Note: For re‑appointment, see subsection 33(4A) of
the Acts Interpretation Act 1901.
180
Acting Authority members
Acting Chief Executive
(1A) The Minister may appoint a member of the
Authority staff who is an SES employee to act as the Chief Executive:
(a) during a vacancy in the office of
the Chief Executive, whether or not an appointment has previously been made to
the office; or
(b) during any period, or during all
periods, when the Chief Executive:
(i) is absent from duty or
Australia; or
(ii) is, for any reason,
unable to perform the duties of the office.
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 Chief Executive or Authority Chair)
(2) The Minister may appoint an individual to
act as an Authority member (other than the Chief Executive or the Authority
Chair):
(a) during a vacancy in the office of
an Authority member (other than the Chief Executive or 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 Chief Executive or 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 Chief
Executive must keep Minister informed
(1) The Chief Executive 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 Chief Executive must comply with
requirements under paragraph (1)(b) within the time limits set by the
Minister.
185
Outside employment
The Chief Executive 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 Chief Executive has the recreation
leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Chief
Executive leave of absence, other than recreation leave, on the terms and
conditions as to remuneration or otherwise that the Minister determines.
(3) The Chief Executive may grant leave of
absence to any other Authority member on the terms and conditions that the Chief
Executive 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 Chief
Executive—the member is absent, except on leave of absence, for 14 consecutive
days or for 28 days in any 12 consecutive months; or
(d) the member is absent, except on
leave of absence, from 3 consecutive meetings of the Authority; or
(e) if the member is the Chief
Executive—the member engages, except with the Minister’s approval, in paid
employment outside the duties of his or her office; or
(ea) if the member is not the Chief
Executive—the member engages, except with the Minister’s approval, in paid
employment that conflicts or could conflict with the proper performance of the
duties of his or her office; or
(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—Basin Officials Committee
201
Basin Officials Committee
In addition to the functions that the
Agreement confers on the Basin Officials Committee, 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.
201A
Appointment of Chair of the Basin Officials Committee
(1) The Chair of the Basin Officials
Committee is to be appointed by the Minister by written instrument.
Note: For re‑appointment, see subsection 33(4A) of
the Acts Interpretation Act 1901.
(2) To be eligible for appointment as the
Chair of the Basin Officials Committee, an individual must be the Secretary of
the Department or an SES employee.
(3) The appointment of the Chair of the Basin
Officials Committee is not invalidated merely because of a defect or
irregularity in connection with the appointment.
201B
Acting Chair of the Basin Officials Committee
(1) The Minister may, by written instrument,
appoint an individual to act as the Chair of the Basin Officials Committee.
(2) To be eligible for appointment to act as
the Chair of the Basin Officials Committee, an individual must be the Secretary
of the Department or an SES employee.
(3) An individual’s appointment to act as the
Chair of the Basin Officials Committee:
(a) does not cease to have effect
merely because the Chair’s appointment ceases to have effect; and
(b) if the Chair is replaced by the
appointment of another Chair—continues in effect in relation to the new Chair.
(4) An individual appointed to act as the
Chair of the Basin Officials Committee may act as, and perform the functions
and exercise the powers of, the Chair:
(a) during a vacancy in the office of
the Chair, whether or not an appointment has previously been made to the
office; or
(b) during any period, or during all
periods, when the Chair:
(i) is absent from duty or
Australia; or
(ii) is, for any reason,
unable to attend a meeting of the Basin Officials Committee; or
(iii) is, for any reason,
unable to perform the duties of the office.
(5) Anything done by or in relation to an
individual purporting to act under an appointment is not invalid merely
because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
201C
Period of appointment for Chair of the Basin Officials Committee
(1) The Chair of the Basin Officials
Committee (including an acting Chair) holds office for the period specified in
his or her instrument of appointment.
(2) This section does not affect the
operation of section 33A of the Acts Interpretation Act 1901.
Subdivision E—Other advisory committees
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.
Note: The Basin Community Committee also has the
functions conferred on it by the Agreement (see section 18F).
Subcommittees
(3) The Basin Community Committee must
establish:
(a) an irrigation subcommittee; and
(b) an environmental water
subcommittee; and
(c) an
Indigenous water subcommittee, to guide the consideration of Indigenous matters
relevant to the Basin’s water resources;
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; and
(c) an individual with expertise in
Indigenous matters relevant to the Basin’s water resources.
(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; or
(e) is engaged in interception
activities with a significant impact (whether on an activity‑by‑activity basis
or cumulatively) on water resources.
(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 (other
than the Basin Officials 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.
(3) To be eligible for appointment as a
member of the Basin Community Committee, an individual must be nominated by the
Murray‑Darling Basin Ministerial Council and 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 (other than the Basin Officials 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.
(1A) However, the Basin Community Committee is
not subject to direction under subsection (1) in relation to its
functions, powers and duties under section 18F.
(2) Before giving a procedural direction
about a matter to 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 Chief Executive and the
Authority staff together constitute a Statutory Agency; and
(b) the Chief Executive 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 Chief Executive 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 Chief
Executive not to be directed about certain matters
The Chief Executive is not subject to
direction by the Authority in relation to the Chief Executive’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 Authority for the purpose of the performance of the
Authority’s functions;
(d) fees paid to the Authority in
accordance with section 212;
(da) interest received by the
Commonwealth from the investment of an amount standing to the credit of the
Account;
(e) amounts received by the Authority
in relation to property paid for with amounts debited from the Account;
(ea) amounts received by the Authority
in relation to assets that vest in the Authority under section 239C;
(eb) amounts received by the Authority
as refunds or repayments of the whole or part of amounts paid by the Murray‑Darling
Basin Commission before the commencement of Schedule 1 to the Water
Amendment Act 2008;
(f) amounts of any gifts given or
bequests made for the purposes of the Account;
(g) amounts
not otherwise covered by this section that are received by the Authority in
connection with the performance of the Authority’s functions under this Act or
the regulations.
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 Authority 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 must not be such as to amount to
taxation.
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 CA—Corporate plan
213A
Corporate plan
(1) The Authority must prepare a corporate
plan at least once a financial year and give it to the Minister.
(2) The corporate plan must cover a period of
4 financial years.
(3) The corporate plan for a financial year
must:
(a) include the corporate plan
approved by the Murray‑Darling Basin Ministerial Council under the Agreement in
relation to that year; and
(b) set out:
(i) the objectives of the
Authority; and
(ii) the planned activities
of the Authority for the 4 financial years relating to its functions under this
Act (other than Part 1A); and
(iii) the budget for those
planned activities.
(4) The Authority must keep the Minister
informed about matters that might significantly affect the achievement of the
objectives set out in the corporate plan.
213B
Variation of corporate plan
(1) The Authority may at any time vary the
corporate plan on its own initiative.
(2) The Authority must not vary the part of
the plan that is the corporate plan approved by the Murray‑Darling Basin Ministerial
Council under the Agreement, unless the variation has been approved in
accordance with the Agreement.
(3) The Authority must give a copy of the
variation to the Minister.
Subdivision D—Reporting requirements
214
Annual report
Annual report to be given to Minister
(1) The Chief Executive must, as soon as
practicable after 30 June in each financial year, prepare and give to the
Minister, and to each other member of the Murray‑Darling Basin Ministerial
Council, a report on the Authority’s operations during that year.
Contents of annual report
(2) The Chief Executive 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;
(e) information about the Authority’s
activities during the year, including information about:
(i) implementation of the
Authority’s corporate plan; and
(ii) any other matters on
which the Authority is required to report under the Agreement.
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.
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.
(4) This Part has effect to the extent to
which it relates to information held:
(a) by constitutional corporations; or
(b) in a Territory.
(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 10A—Transitional matters relating to the Murray‑Darling Basin
Commission
Division 1—Preliminary
239A
Definitions
In this Act:
former MDB Agreement has the same meaning as Agreement
had in the Murray‑Darling Basin Act 1993 immediately before the
commencement of Schedule 2 to the Water Amendment Act 2008,
including all of the changes to that agreement that the former Murray‑Darling
Basin Ministerial Council had agreed to before the commencement of that
Schedule.
former Murray‑Darling Basin Ministerial Council
has the same meaning as Murray‑Darling Basin Ministerial Council
had in this Act immediately before the commencement of Schedule 2 to the Water
Amendment Act 2008.
Murray‑Darling Basin Commission has the same
meaning as Commission had in the Murray‑Darling Basin Act 1993
immediately before the commencement of Schedule 2 to the Water
Amendment Act 2008.
239B
Application of this Part
This Part applies if each of the Basin
States (other than the Australian Capital Territory) is a referring State.
Division 2—Assets, liabilities and legal proceedings
239C
Vesting of assets of Murray‑Darling Basin Commission
(1) On the commencement of this Part, the transitional
assets of the Murray‑Darling Basin Commission immediately before that
commencement:
(a) cease to be assets of the Murray‑Darling
Basin Commission; and
(b) become assets of the Authority
without any conveyance, transfer or assignment.
(2) The Authority becomes the successor in
law in relation to the transitional assets.
(3) A transitional asset is:
(a) any legal or equitable estate or
interest in real or personal property, whether actual, contingent or
prospective; or
(b) any right, power, privilege or
immunity, whether actual, contingent or prospective;
but does not include a right, power, privilege or immunity
conferred by:
(c) an Act; or
(d) regulations or other subordinate
legislation made under an Act; or
(e) the Murray‑Darling Basin Act
1992 of New South Wales; or
(f) the Murray‑Darling Basin Act
1993 of Victoria; or
(g) the Murray‑Darling Basin Act
1996 of Queensland; or
(h) the Murray‑Darling Basin Act
1993 of South Australia; or
(i) the former MDB Agreement.
239D
River Murray Operations assets unaffected
(1) This Part does not affect:
(a) the ownership or control of River
Murray Operations assets; or
(b) the application of the Agreement
in relation to River Murray Operations assets.
(2) River Murray Operations assets
are:
(a) the works set out in Schedule A to
the former MDB Agreement; and
(b) any other works the construction
of which was authorised under subclause 50(1) of the former MDB Agreement
(including any works authorised under Schedule C to the former MDB Agreement);
and
(c) any
other assets purchased with amounts paid by the Murray‑Darling Basin Commission
under subclause 73(1) of the former MDB Agreement.
Note: The Agreement
provides for how these assets are to be dealt with (including in accordance
with directions given by the Authority).
239E
Living Murray Initiative assets unaffected
(1) This Part does not affect:
(a) the ownership or control of Living
Murray Initiative assets; or
(b) the application of the Living
Murray Initiative in relation to Living Murray Initiative assets.
(2) Living Murray Initiative assets
are:
(a) water access rights, water
delivery rights, irrigation rights or other similar rights relating to water;
or
(b) interests in, or in relation to,
such rights;
that are held by a person for the purposes of the Living
Murray Initiative, but do not include the legal title to such rights or
interests if the legal title was held by the Murray‑Darling Basin Commission in
its own name immediately before the commencement of this Part.
239F
Vesting of liabilities of Murray‑Darling Basin Commission
(1) On the commencement of this Part, the
transitional liabilities of the Murray‑Darling Basin Commission immediately
before that commencement:
(a) cease to be liabilities of the
Murray‑Darling Basin Commission; and
(b) become liabilities of the
Authority without any conveyance, transfer or assignment.
(2) The Authority becomes the successor in
law in relation to the transitional liabilities.
(3) A transitional liability is
any liability, duty or obligation, whether actual, contingent or prospective,
but does not include a liability, duty or obligation imposed by:
(a) an Act; or
(b) regulations or other subordinate
legislation made under an Act; or
(c) the Murray‑Darling Basin Act
1992 of New South Wales; or
(d) the Murray‑Darling Basin Act
1993 of Victoria; or
(e) the Murray‑Darling Basin Act
1996 of Queensland; or
(f) the Murray‑Darling Basin Act
1993 of South Australia; or
(g) the former MDB Agreement.
(4) To avoid doubt, this section does not
apply to liabilities that relate to River Murray Operations assets or Living
Murray Initiative assets, except to the extent that they are liabilities of the
Murray‑Darling Basin Commission immediately before the commencement of this
Part.
Note: The Agreement provides for the Basin States to
indemnify the Authority for liabilities that were, before the commencement of
this Part, liabilities of the Murray‑Darling Basin Commission relating to River
Murray Operations assets.
239G
Certificates relating to vesting of land etc.
(1) This section applies if:
(a) any legal or equitable estate or
interest in real property, whether actual, contingent or prospective (a real
property asset), vests in the Authority under this Part; and
(b) there is lodged, with the
Registrar of Titles or other proper officer of the State or Territory in which
the real property asset is situated, a certificate that:
(i) is signed by the
Minister; and
(ii) identifies the real
property asset, whether by reference to a map or otherwise; and
(iii) states that the real
property asset has become vested in the Authority under this Part.
(2) The
Registrar of Titles or other officer may:
(a) register the matter in a way that
is the same as, or similar to, the way in which dealings in real property
assets of that kind are registered; and
(b) deal with, and give effect to, the
certificate.
(3) A certificate made under paragraph (1)(b)
is not a legislative instrument.
239H
Certificates relating to vesting of assets other than land etc.
(1) This section applies if:
(a) any transitional asset other than
a real property asset vests in the Authority under this Part; and
(b) there is lodged, with the person
or authority who, under a law of the Commonwealth, a State or a Territory,
under a trust instrument or otherwise, has responsibility for keeping a
register in relation to assets of the kind concerned, a certificate that:
(i) is signed by the
Minister; and
(ii) identifies the
transitional asset; and
(iii) states that the
transitional asset has become vested in the Authority under this Part.
(2) The person or authority may:
(a) deal with, and give effect to, the
certificate as if it were a proper and appropriate instrument for transactions
in relation to assets of that kind; and
(b) make such entries in the register
as are necessary having regard to the effect of this Part.
(3) A certificate made under paragraph (1)(b)
is not a legislative instrument.
239J
Substitution of Authority as a party to pending proceedings
(1) If any proceedings to which:
(a) the Murray‑Darling Basin
Commission; or
(b) a person in the person’s capacity
as the President or a Commissioner;
was a party were pending in any court or tribunal
immediately before the commencement of this Part, from that commencement the
Authority is substituted for the Murray‑Darling Basin Commission or the person
as a party to the proceedings.
(2) The President is the person
appointed in accordance with subclause 20(1) of the former MDB Agreement, and
includes a Deputy President appointed under subclause 20(3) (in the capacity of
Deputy President or acting President).
(3) A Commissioner is a person
appointed in accordance with subclause 20(2) of the former MDB Agreement, and
includes a Deputy Commissioner appointed under that subclause.
Note: The Agreement provides for the Basin States to
indemnify the Authority for a share of the costs associated with, or arising
from, proceedings covered by this section.
239K
Rights to sue President or Commissioner become rights to sue Authority
If a right to sue a person, in the
person’s capacity as the President or a Commissioner, existed immediately
before the commencement of this Part, but had not been exercised, from that
commencement the right to sue:
(a) ceases to be a right to sue the person;
and
(b) becomes a right to sue the
Authority.
Note: The Agreement provides for the Basin States to
indemnify the Authority for a share of the costs associated with rights covered
by this section.
239L
President’s or Commissioner’s rights to sue become rights of Authority
If a person’s right to sue, in the
person’s capacity as the President or a Commissioner, existed immediately
before the commencement of this Part, but had not been exercised, from that
commencement the right to sue:
(a) ceases to be a right of the
person; and
(b) becomes a right of the Authority.
239M
Transfer of custody of Murray‑Darling Basin Commission records
(1) On the commencement of this Part, each
record or document that was in the custody of the Murray‑Darling Basin Commission
immediately before that commencement is to be transferred into the custody of
the Authority.
(2) If, immediately before the commencement
of this Part, the Murray‑Darling Basin Commission owed a duty of confidence to
a person in relation to a record or document transferred under this section,
the Authority owes the same duty of confidence to the person after the
transfer.
Division 3—Effect on instruments and things done
239N
References in certain instruments to Murray‑Darling Basin Commission etc.
(1) If a transitional instrument is one or
more of the following:
(a) an instrument that was made by the
Murray‑Darling Basin Commission;
(b) an instrument to which the Murray‑Darling
Basin Commission was a party;
(c) an instrument that was given to,
or in favour of, the Murray‑Darling Basin Commission;
(d) an instrument under which any
right or liability accrues or may accrue to the Murray‑Darling Basin
Commission;
(e) any other instrument in which a
reference is made to the Murray‑Darling Basin Commission;
it continues to have effect from the commencement of this
Part as if:
(f) references in the transitional
instrument to the Murray‑Darling Basin Commission (however described) were
references to the Authority; and
(g) references in the transitional
instrument to the former Murray‑Darling Basin Ministerial Council (however
described) were references to the Murray‑Darling Basin Ministerial Council; and
(h) references in the transitional
instrument to the contracting governments under the former MDB Agreement
(however described) were references to the contracting governments under the
Agreement; and
(i) in the case of a protocol made
under a Schedule to the former MDB Agreement:
(i) references in the
protocol to the former MDB Agreement were references to the Agreement; and
(ii) references in the
protocol to provisions of, or Schedules to, the former MDB Agreement were
references to the corresponding provisions of, or Schedules to, the Agreement;
and
(iii) references in the
protocol to other protocols made under Schedules to the former MDB Agreement
were references to the corresponding protocols made under Schedules to the
Agreement.
(2) However, subsection (1) does not
apply to a transitional instrument specified in the regulations.
(3) If the regulations specify a transitional
instrument for the purposes of subsection (2), the regulations may also
provide one or more of the following:
(a) that the transitional instrument
has effect as if references in the transitional instrument to the Murray‑Darling
Basin Commission (however described) were references as specified in the
regulations;
(b) that the transitional instrument
has effect as if references in the transitional instrument to the former Murray‑Darling
Basin Ministerial Council (however described) were references as specified in
the regulations;
(c) that the transitional instrument
has effect as if references in the transitional instrument to the contracting
governments (however described) were references as specified in the
regulations;
(d) in the case of a protocol made
under a Schedule to the former MDB Agreement—that the transitional instrument
has effect as if references to one or more of the following:
(i) the former MDB
Agreement;
(ii) provisions of, or
Schedules to, the former MDB Agreement;
(iii) other
protocols made under Schedules to the former MDB Agreement;
were
references as specified in the regulations.
(4) A transitional instrument
is:
(a) an instrument of a legislative
character; or
(b) an instrument of an administrative
character (including a resolution made by the Murray‑Darling Basin Commission);
or
(c) a contract, arrangement or
understanding;
that was in force immediately before the commencement of
this Part, but does not include an Act, a State Act or an Act of a Territory.
239P
Things done by, or in relation to, the Murray‑Darling Basin Commission etc.
under Acts and instruments
(1) If, before the commencement of this Part,
a thing was done by or in relation to the Murray‑Darling Basin Commission, or a
committee of the Murray‑Darling Basin Commission, under:
(a) a provision (the authorising
provision) of an Act, other than a provision of the MDB Act; or
(b) a provision (the authorising
provision) of an instrument made under a provision of an Act, other than
a provision of the MDB Act;
then the thing done has effect from that commencement as
if it had been done by or in relation to the Authority, or the corresponding
committee of the Authority, under the authorising provision as in force from
that commencement.
(2) However, if the thing done is included in
a class of things specified in the regulations, it has effect from that
commencement as if it had been done by or in relation to the person or body
specified in the regulations under the authorising provision as in force from
that commencement.
(3) This section does not change the time at
which the thing was actually done.
(4) The regulations may:
(a) provide that this section does not
apply to a specified class of things done; or
(b) clarify how a thing has effect as
mentioned in subsection (1) or (2).
239Q
Things done under the former MDB Agreement
(1) If:
(a) a thing was done before the
commencement of this Part under a provision of the former MDB Agreement, by or
in relation to, or pursuant to a resolution of, a body or person; and
(b) the thing still had effect
immediately before that commencement; and
(c) the regulations specify:
(i) a provision of the
Agreement to be the corresponding provision to the provision referred to in paragraph (a);
and
(ii) in relation to that
corresponding provision, a body or person to be the corresponding body or
person to the body or person referred to in that paragraph;
the thing done has effect from that commencement as if it
had been done under the corresponding provision by or in relation to, or
pursuant to a resolution of, the corresponding body or person.
(2) Regulations made for the purposes of paragraph (1)(c):
(a) may specify:
(i) a part of a provision
of the Agreement to be the corresponding provision to a provision referred to
in paragraph (1)(a); or
(ii) a provision of the
Agreement, or a part of a provision of the Agreement, to be the corresponding
provision to a part of a provision referred to in paragraph (1)(a); and
(b) may specify different corresponding
bodies or persons in relation to different parts of a provision of the
Agreement.
This subsection may be applied in relation to the
different ways in which a provision can operate as if each of those ways were a
different part of the provision.
(3) If:
(a) a thing was done before the
commencement of this Part under a provision of the former MDB Agreement, by or
in relation to, or pursuant to a resolution of, the Murray‑Darling Basin
Commission; and
(b) the thing still had effect
immediately before that commencement; and
(c) the provision has a corresponding
provision in the Agreement; and
(d) subsection (1) does not
apply;
the thing done has effect from that commencement as if it
had been done under the corresponding provision by or in relation to, or
pursuant to a resolution of, the Authority.
(4) However, subsection (3) does not
apply to a thing specified in the regulations.
(5) The application of subsection (1),
(2) or (3) to the making of an instrument is not taken, for the purposes of the
Legislative Instruments Act 2003, to constitute the making of a
legislative instrument by:
(a) in the case of subsection (1)
or (2)—the corresponding body or person referred to in that subsection; or
(b) in the case of subsection (3)—the
Authority.
(6) This section applies to protocols to the
former MDB Agreement as if they were provisions of the former MDB Agreement,
and applies to protocols to the Agreement as if they were provisions of the
Agreement.
239R
Continuation of committees established by Murray‑Darling Basin Commission
If:
(a) the Murray‑Darling Basin
Commission established a committee before the commencement of this Part; and
(b) the committee was in existence
immediately before that commencement;
the committee continues in existence after that
commencement as if the Authority had, on that commencement, established it
under section 203 and appointed its members under section 204.
239S
Continuation of Murray‑Darling Basin Commission’s corporate plan
(1) For the purposes of this Act and the
Agreement, the corporate plan of the Murray‑Darling Basin Commission in force
immediately before the commencement of this Part (the Commission’s
corporate plan) is taken, from that commencement:
(a) to be a corporate plan approved by
the Murray‑Darling Basin Ministerial Council under clause 34 of the
Agreement; and
(b) to be included, under paragraph
213A(3)(a), in any corporate plan of the Authority that was in force
immediately before that commencement.
(2) The Authority must, as soon as practicable
after that commencement:
(a) review the Commission’s corporate
plan; and
(b) if the Authority considers it
necessary or desirable for there to be a significant variation to the
plan—prepare a draft amendment, and provide it to the Basin Officials Committee,
in accordance with the Agreement.
Division 4—Financial matters
239T
Financial matters
(1) The following amounts (the transitional
amounts) must be credited to the Murray‑Darling Basin Special Account:
(a) amounts that, immediately before
the commencement of this Part, are in bank accounts referred to in subclause
79(1) of the former MDB Agreement;
(b) all other amounts in the Murray‑Darling
Basin Commission’s possession, custody or control immediately before that
commencement.
(2) If:
(a) under an arrangement (other than
the former MDB Agreement), a State paid the Murray‑Darling Basin Commission an
amount for the purposes of the performance of the Murray‑Darling Basin
Commission’s functions; and
(b) all or part of that amount is a
transitional amount;
then:
(c) for the purposes of spending the
transitional amount, the functions of the Authority include those functions of
the Murray‑Darling Basin Commission; and
(d) the Authority must spend the
transitional amount in accordance with that arrangement and not otherwise.
(3) Sections 210 and 211 have effect
subject to this section.
Division 5—Miscellaneous
239U
Exemption from stamp duty and other State or Territory taxes
(1) No stamp duty or other tax is payable
under a law of a State or a Territory in respect of either of the following
matters (exempt matters):
(a) the vesting of a transitional
asset or transitional liability under this Part;
(b) the operation of this Part in any
other respect;
or anything connected with an exempt matter.
(2) The Minister may certify in writing:
(a) that a specified matter is an
exempt matter; or
(b) that a specified thing is
connected with a specified exempt matter.
(3) A certificate made under subsection (2)
is not a legislative instrument.
(4) The Minister may, by legislative
instrument, certify in writing:
(a) that matters included in a
specified class are exempt matters; or
(b) that things included in a
specified class are connected with exempt matters included in a specified
class.
(5) In all courts, and for all purposes
(other than for the purposes of criminal proceedings), a certificate under subsection (2)
or (4) is prima facie evidence of the matters stated in the certificate.
239V
Certificates taken to be authentic
A document that appears to be a
certificate made or issued under a particular provision of this Part:
(a) is taken to be such a certificate;
and
(b) is taken to have been properly
made or issued;
unless the contrary is established.
239W
Regulations
(1) The regulations may provide for other
transitional measures relating to the replacement of:
(a) the Murray‑Darling Basin
Commission; or
(b) the former MDB Agreement; or
(c) the former Murray‑Darling Basin
Ministerial Council.
(2) Without limiting subsection (1),
regulations under that subsection may provide for powers of the Murray‑Darling
Basin Commission or the former Murray‑Darling Basin Ministerial Council:
(a) that were exercisable under the
former MDB Agreement; and
(b) that are not otherwise provided
for in this Act;
to be exercised by the Authority, the Basin Officials
Committee or the Murray‑Darling Basin Ministerial Council.
(3) Without limiting subsection (1),
regulations under that subsection may provide for the ownership or control of
weir no.5 Redbank and weir no.7 Maude.
(4) Regulations made for the purposes of subsection (3)
have effect despite section 239D.
Part 11—Other transitional matters
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
resource 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 65(6) 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 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 11A—Interactions with State laws
250A
Meaning of Commonwealth water legislation
In this Act:
Commonwealth water legislation means this
Act, the regulations or any other instrument made under this Act.
250B
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 250D avoids direct inconsistency
arising in some cases by limiting the operation of the Commonwealth water
legislation.
250C
Commonwealth water legislation does not apply to matters declared by law of
referring State to be excluded matters
(1) Subsection (2) applies if a
provision of a law of a referring State declares a matter to be an excluded
matter for the purposes of this section in relation to:
(a) the whole of the Commonwealth
water legislation; or
(b) a specified provision of the
Commonwealth water legislation; or
(c) the Commonwealth water legislation
other than a specified provision; or
(d) the Commonwealth water legislation
otherwise than to a specified extent.
(2) By force of this subsection:
(a) none of the provisions of the
Commonwealth water legislation (other than this section) applies in or in
relation to the State with respect to the matter if the declaration is one to
which paragraph (1)(a) applies; and
(b) the specified provision of the
Commonwealth water legislation does not apply in or in relation to the State
with respect to the matter if the declaration is one to which paragraph (1)(b)
applies; and
(c) the provisions of the Commonwealth
water legislation (other than this section and the specified provisions) do not
apply in or in relation to the State with respect to the matter if the
declaration is one to which paragraph (1)(c) applies; and
(d) the provisions of the Commonwealth
water legislation (other than this section and otherwise than to the specified
extent) do not apply in or in relation to the State with respect to the matter
if the declaration is one to which paragraph (1)(d) applies.
(3) Subsection (2) does not apply to the
declaration to the extent to which the regulations provide that that subsection
does not apply to that declaration.
(4) In this section:
matter includes act, omission, body, person
or thing.
250D Avoiding
direct inconsistency arising between the Commonwealth water legislation and
laws of referring States
Section overrides other provisions of the Commonwealth
water legislation
(1) This section has effect despite anything
else in the Commonwealth water legislation.
Section does not deal with provisions capable of
concurrent operation
(2) This section does not apply to a
provision of a law of a referring State that is capable of concurrent operation
with the Commonwealth water legislation.
Note: This kind of provision is dealt with by
section 250B.
When this section applies to a provision of a State law
(3) This section applies to the interaction
between a provision (the State provision) of a law of a referring
State and a provision (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 250B to the extent to which it can operate
concurrently with the Commonwealth provision.
(6) Subsections (4) and (5) do not apply
in relation to the State provision to the extent to which the regulations
provide that those subsections do not apply in relation to the State provision.
250E
Regulations may modify operation of the Commonwealth water legislation to deal
with interaction between that legislation and laws of referring States
(1) The regulations may modify the operation
of the Commonwealth water legislation so that:
(a) provisions of the Commonwealth
water legislation do not apply to a matter that is dealt with by a law of a
referring State specified in the regulations; or
(b) no inconsistency arises between
the operation of a provision of the Commonwealth water legislation and the
operation of a provision of a law of a referring State specified in the
regulations.
(2) Without limiting subsection (1),
regulations made for the purposes of that subsection may provide that a
provision of the Commonwealth water legislation:
(a) does not apply to:
(i) a person specified in
the regulations; or
(ii) a body specified in
the regulations; or
(iii) circumstances
specified in the regulations; or
(iv) a person or body
specified in the regulations in the circumstances specified in the regulations;
or
(b) does not prohibit an act to the
extent to which the prohibition would otherwise give rise to an inconsistency
with a law of a referring State; or
(c) does not require a person to do an
act to the extent to which the requirement would otherwise give rise to an
inconsistency with a law of a referring State; or
(d) does not authorise a person to do
an act to the extent to which the conferral of that authority on the person
would otherwise give rise to an inconsistency with a law of a referring State;
or
(e) does not impose an obligation on a
person to the extent to which complying with that obligation would require the
person not to comply with an obligation imposed on the person under a law of a
referring State; or
(f) authorises a person to do
something for the purposes of the Commonwealth water legislation that the
person:
(i) is authorised to do
under a law of a referring State; and
(ii) would not otherwise be
authorised to do under the Commonwealth water legislation; or
(g) will be taken to be satisfied if a
law of a referring State is satisfied.
(3) In this section:
matter includes act, omission, body, person
or thing.
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.
252A
Dataset for Murray‑Darling Basin to be publicly available
The Commonwealth must make a copy of the
dataset referred to in the definition of Murray‑Darling Basin in
section 18A available on the Department’s website.
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.
255AA Mitigation
of unintended diversions
Prior to licences being granted for
subsidence mining operations on floodplains that have underlying groundwater
systems forming part of the Murray‑Darling system inflows, an independent
expert study must be undertaken to determine the impacts of the proposed mining
operations on the connectivity of groundwater systems, surface water and
groundwater flows and water quality.
255A
Application of water charge rules in Basin States that are not referring States
(1) If a Basin State is not a referring
State, water charge rules apply in the State to a regulated water charge if one
or more of the paragraphs in subsection (2) are satisfied.
(2) This subsection applies if:
(a) the person imposing the charge, or
making the demand, is a constitutional corporation; or
(b) the person on whom the charge is
imposed, or from whom the charge is demanded, is a constitutional corporation;
or
(c) the charge is imposed, or payment
of the charge is demanded, in the course of trade and commerce between the
States or between a State and a Territory; or
(d) the person who imposes, or demands
payment of, the charge does so in a Territory; or
(e) the charge relates to:
(i) a water resource in a
Territory; or
(ii) water service
infrastructure in a Territory; or
(iii) tradeable water rights
in relation to a water resource in a Territory; or
(f) the charge is imposed, or payment
of the charge is demanded, using a postal, telegraphic, telephonic or other
like service (within the meaning of paragraph 51(v) of the Constitution).
(3) Subsection (2), and the paragraphs
of that subsection, do not limit the operation (if any) that the water charge
rules validly have apart from this section.
255B
Application of water market rules in Basin States that are not referring States
(1) If a Basin State is not a referring
State, water market rules apply in the State to an act, or a failure to do an
act, by an infrastructure operator that has an effect on:
(a) the ability of a person who holds
an irrigation right against the operator to obtain a water access entitlement;
or
(b) the ability of a person who held
an irrigation right against the operator to trade or transfer a water access
entitlement;
if one or more of the paragraphs in subsection (2)
are satisfied.
(2) This subsection applies if:
(a) the infrastructure operator or the
person who holds, or held, the irrigation right is a constitutional
corporation; or
(b) the act is done, or the failure to
do the act occurs, in the course of trade and commerce between the States or
between a State and a Territory; or
(c) the act is done, or the failure to
do the act occurs, in a Territory; or
(d) the water access right, or the
irrigation right, relates to a water resource in a Territory; or
(e) the act is done, or the failure to
do the act occurs, using a postal, telegraphic, telephonic or other like
service (within the meaning of paragraph 51(v) of the Constitution).
(3) Subsection (2), and the paragraphs
of that subsection, do not limit the operation (if any) that the water market
rules validly have apart from this section.
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.
(3) Regulations made for the purposes of Part 7 may
make provision for or in relation to a matter by applying, adopting or
incorporating, with or without modification (including any omission, addition
or substitution), any matter contained in a written instrument or other
document:
(a) as in force or existing at a
particular time; or
(b) as in force or existing from time
to time;
even if the written instrument or other document does not
yet exist when the regulations are made.
(4) Subsection (3) has effect despite
subsection 14(2) of the Legislative Instruments Act 2003.
(5) If regulations made for the purposes of
Part 7 make provision in relation to a matter by applying, adopting or
incorporating a matter contained in a written instrument or other document, the
Director of Meteorology must ensure that:
(a) the text of the matter applied,
adopted or incorporated is made publicly available on the Bureau’s website,
unless that text is set out in the regulations; and
(b) if the text of the matter is
applied, adopted or incorporated as in force or existing from time to time—any
subsequent amendments of that text are made publicly available on that website.
Schedule 1—The Murray‑Darling Basin Agreement
Note: See section 18A.
MURRAY‑DARLING BASIN
AGREEMENT
Table of Contents
PART I — INTERPRETATION
1. Purpose
2. Definitions
3. Interpretation
PART II — APPROVAL, AMENDMENT AND
ENFORCEMENT
4. Revocation of Former
Agreement
5. Commencement of
Agreement and Amendments to Agreement
6. Parties to Provide for
Enforcement of Agreement
PART III — THE MINISTERIAL COUNCIL
7. Establishment of
Ministerial Council
8. Membership of the
Ministerial Council
9. Functions of the
Ministerial Council
10. Ministerial Council May
Direct Committee
11. Conferral of functions
by Ministerial Council
12. Ministerial Council May
Require Committee and Authority to Report
13. Proceedings of the
Ministerial Council
14. Resolutions Other than
at Meetings
15. Appointment of
Committees
16. Basin Community
Committee to Advise Ministerial Council
PART IV — THE COMMITTEE
DIVISION 1 — ESTABLISHMENT AND MEMBERSHIP OF THE
COMMITTEE
17. Establishment of Basin
Officials Committee
18. Membership of the
Committee
19. Appointment of Chair of
the Committee
20. Appointment of Other
Members of the Committee
21. Acting Members of the
Committee
22. Period of Appointment
23. Standing Obligation to
Disclose Interests
24. Obligation to Disclose
Interests Before Considering a Particular Matter
25. Chief Executive and
Authority Chair May Attend Meetings
DIVISION 2 — FUNCTIONS AND POWERS OF THE COMMITTEE
26. Functions and Powers of
the Committee
DIVISION 3 — DECISION MAKING BY THE COMMITTEE
27. Proceedings of the
Committee
28. Resolutions Other than
at Meetings
PART V — THE AUTHORITY
29. Functions, Powers and
Duties of the Authority
30. Authority’s Functions
in Relation to River Operations
31. Objectives and outcomes
for river operations
32. Continuation of
Resolutions, Practices and Procedures Relating to River Operations
33. Referrals and
Determinations in Relation to River Operations
34. Annual Corporate Plan
35. Amendment of Annual
Corporate Plan
PART VI —
APPLICATION OF AGREEMENT TO QUEENSLAND AND THE AUSTRALIAN CAPITAL TERRITORY
36. Application of
Agreement to Queensland and the Australian Capital
37. Provisions Not Applying
to Queensland
38. Provisions not applying
to the Australian Capital Territory
39. Powers of Ministerial
Council and Committee to make determinations
40. Factors to be
Considered by Ministerial Council or Committee
41. Application of Previous
Ministerial Council Decisions to Queensland
42. Application of previous
Ministerial Council decisions to the Australian Capital Territory
PART VII — INVESTIGATION,
MEASUREMENT AND MONITORING
43. Investigations and
Studies
44. Monitoring
45. Measurements of Water
Quantity and Quality
46. Need for Approval in
Certain Cases
47. Power to Arrange Data
in Lieu
48. Water Quality
Objectives
49. Authority to be
Informed of New Proposals
50. Environmental
Assessment
51. Protection of Catchment
of Hume Reservoir
PART VIII — CONSTRUCTION,
OPERATION AND MAINTENANCE OF WORKS
52. Works and Measures
Subject to the Agreement
53. Asset Management Plan
54. Control and Management
of RMO assets
55. Asset Agreement
56. Authorisation of
Further Works or Measures
57. Ancillary, Preventative
and Remedial Works
58. Preparation and
Submission of Designs etc of Works for Authority Approval.
59. Submission of Details
of Measures for Authority Approval
60. Authority Approval of
Certain Tenders
61. Directions for the
Efficient Construction etc of Works
62. States to Facilitate
Construction and Operation Within Their Territories
63. Works for Benefit of
State Contracting Governments
64. Declaration that Works
or Measures are Effective
65. Maintenance of Works
66. Procedures
for Operation of Works
67. Dredging and Snagging
68. Operation of Works
69. Performance of Joint
Duties
70. Ineffective Works
PART IX — FINANCE
71. Definitions
72. Apportionment of Costs
73. Annuity Contributions
74. Annual and forward
estimates
75. Payments by Contracting
Governments
76. Authority to Account
77. Application of Moneys
by Authority
78. Payments by Authority
to Constructing Authorities
79. Contracting Governments
to Account
80. Unexpended Balances
81. List of Assets
82. Disposal of Surplus
Assets
83. Revenue
84. Compensation for Damage
by Works
PART X — REPORTS
85. Preparation of Reports
PART XI — PROCEEDINGS IN DEFAULT
86. Failure to Perform
Works or Contribute Cost
PART XII — DISTRIBUTION OF WATERS
DIVISION 1 — TIER 1
DISTRIBUTION OF WATERS
SUBDIVISION
A — APPLICATION OF DIVISION 1
87. Application of Division 1
SUBDIVISION
B — STATE ENTITLEMENTS TO WATER
88. South Australia’s
Monthly Entitlement
89. Measurement of South
Australia’s Entitlement
90. Variation of South
Australia’s Entitlements
91. South Australia’s
Storage Right
92. Use of Lake Victoria
93. Surplus Flow to South
Australia
94. Entitlements of New
South Wales and Victoria
95. New South Wales’
Entitlement to Water from Menindee Lakes
96. New South Wales’ and
Victoria’s Supply to South Australia
97. Limitations on Use by
New South Wales and Victoria
SUBDIVISION
C — CONTROL BY AUTHORITY
98. Authority’s Role in
Operation of Storages
99. Limitation on Menindee
Lakes Operation
100. Procedures for Dartmouth
Dam Operation
101. Water Estimated to be
Under the Control of the Authority
102. Available Water
103. Minimum Reserve
104. Use of State Works to
Convey Murray Water
SUBDIVISION
D — WATER ACCOUNTING
105. General
106. Allocation of Water to
New South Wales and Victoria
107. Allocation of Water in
Menindee Lake Storage
108. Tributary Inflows
109. Use by New South Wales
and Victoria of Allocated Water
110. Losses
111. New South Wales’ and
Victoria’s Supply to South Australia
112. Commencement of
Continuous Accounting of Carryover of Stored Water
113. Reallocation of Water
Between New South Wales and Victoria
114. Efficient Regulation of
the River Murray
115. Accounting Procedures
116. Internal Spills
117. Accounting for Spill
from Storages
118. Accounting for Releases
from Dartmouth Reservoir
119. Accounting for Releases
from Hume Reservoir
120. Accounting for Releases
from Menindee Lakes Storage
121. Reallocation of Water in
Menindee Lakes Storage
122. Accounting for Dilution
Flows
SUBDIVISION E — PERIODS OF SPECIAL ACCOUNTING
123. Declaration of Periods
of Special Accounting
124. Variation of Navigation
Depths During Restrictions
125. Special Accounts to be
Kept
126. Imbalance in Use
127. Limits on Imbalance in
Use
128. Restrictions on South
Australia’s Entitlement
129. Termination of Periods
of Special Accounting
SUBDIVISION F — ACCOUNTING FOR SOUTH AUSTRALIA’S
STORAGE RIGHT
130. Accounting for South
Australia’s Storage Rights
DIVISION 2 — TIER 2 DISTRIBUTION OF WATERS TO
ENSURE CRITICAL HUMAN WATER NEEDS
131. Application of Division 2
132. Distribution of Waters
Subject to Schedule and Determinations of Ministerial Council
DIVISION 3 — TIER 3 DISTRIBUTION OF WATERS IN
EXTREME OR UNPRECEDENTED CIRCUMSTANCES
133. Application of Division 3
134. Distribution of Waters
Subject to Schedule and Determinations of Ministerial Council1
DIVISION 4
— SCHEDULE FOR WATER SHARING
135. Schedule for Water
Sharing
PART XIII — MENINDEE LAKES STORAGE
136. Maintenance of Menindee
Lakes Storage
137. Full Supply Levels
138. Financial Contributions
of Authority
PART XIV — EFFECT OF SNOWY SCHEME
139. Effect of Snowy Scheme
PART XV — MISCELLANEOUS
140. Resolution of Disputes
141. Resolution of
operational management and delivery inconsistencies
142. Proposals to Amend
Agreement
143. Giving Information to
the Authority
144. Authorities to Observe
Agreement
PART XVI — INDEMNITIES
IN RESPECT OF COMMITTEE AND AUTHORITY
145. Indemnity in Respect of
Payments Made by Commonwealth
146. Indemnity in Respect of
Payments Relating to Former Commissioners
147. Commonwealth to consult
other Contracting Governments
148. Liability for Acts of
Committee Members
PART XVII — TRANSITIONAL
PROVISIONS AND REVIEW OF SCHEDULES, RESOLUTIONS AND ACTIVITIES
149. Definitions
150. Transitional Provisions
151. Review of resolutions,
directions, procedures and measures and other activities
152. Review of Schedules
SCHEDULE A —
WORKS
SCHEDULE B — BASIN SALINITY MANAGEMENT
PART I
— PRELIMINARY
1. Purpose
2. Definitions
3. Application to
Queensland and Australian Capital Territory
PART
II — ACCOUNTABILITY FOR SALINITY IMPACTS
4. Accountability for
Salinity Impacts
5. Determining Baseline
Conditions
6. Meeting End‑of‑Valley
Targets
PART
III — SALINITY TARGETS
7. Basin Salinity Target
8. End‑of‑Valley Targets
for the Australian Capital Territory
9. Reviewing and amending
End‑of‑Valley Targets
PART
IV — JOINT WORKS AND MEASURES
10. Joint program
11. Attribution of salinity
credits or salinity debits for Joint works or measures
12. Authorised Joint works
and measures
13. Participation by
Queensland and Australian Capital Territory
14. Co‑ordinating Joint
Works and Measures
PART V
— THE REGISTERS
15. Establishing the
Registers
16. Obligations of State
Contracting Governments
17. Operating Registers
18. Determining whether a
Proposal has a Significant Effect
19. Assessing Salinity
Impacts
20. Estimating Salinity
Credits and Salinity Debits
21. Attributing Salinity
Credits or Salinity Debits
22. When Salinity Credits
and Salinity Debits must be entered on a Register
23. Trading and Transfers
between Registers
24. Review and amendment of
Register entries
PART
VI — MONITORING
25. Monitoring obligations
26. End‑of‑Valley Targets
27. Program to monitor
Accountable Actions
28. Monitoring Accountable
Actions
PART
VII — REPORTING, AUDIT AND REVIEW
29. State Contracting
Governments
30. Valley Reports
31. Commonwealth
32. Authority
33. Rolling Five‑Year
Reviews
34. Audit
35. Review of Schedule
PART
VIII — MODELS
36. Models to be developed
by the Authority
37. Models developed by
State Contracting Governments
38. Assessment and Approval
of Certain Models
39. Review of Models
PART IX
— PROTOCOLS
40. Authority’s
power to make protocols
41. Examples of possible
protocols
PART X — DEFAULT
42. Relationship with Part XI
of the Agreement
43. Default by a State
Contracting Government
44. Exception Reports
45. Proposal for remedial
action
46. Action by a State
Contracting Government
PART
XI — FINANCE
47. State Actions
48. Joint works or measures
PART
XII — TRANSITIONAL PROVISIONS
49. Former salinity and
drainage works
SCHEDULE B —
APPENDIX 1 — End of Valley Targets
SCHEDULE B — APPENDIX 2 — Authorised Joint Works and
Measures
SCHEDULE
C — APPLICATION OF AGREEMENT TO QUEENSLAND
SCHEDULE D — TRANSFERRING WATER ENTITLEMENTS AND
ALLOCATIONS
PART I
— PRELIMINARY
1. Purposes
2. Application
3. Definitions and
interpretation
PART
II — GENERAL PRINCIPLES
4. Power to alter
entitlements and allocations to which Schedule applies
5. Suspension of Schedule
6. Power to make
protocols
PART III — MATTERS RELATING TO ADMINISTRATION OF THE
AGREEMENT
7. Adjustment of delivery
of State entitlements
8. Adjustment of cap on
diversions
9. Adjustment of State
financial contributions
10. Accounting for salinity
impacts
PART IV — OPERATIONAL PRINCIPLES AND ADMINISTRATION
11. Delivery of water and
valley accounts
12. Conversion factors and
exchange rates
13. Restrictions on
transfers
14. Environmental and
supply considerations
15. Procedures and
principles for transfers
16. Transfer Register
17. Monitoring and
reporting
18. Review of interstate
transfers
19. Dispute resolution
SCHEDULE D — APPENDIX 1 — Entitlements and Allocations
SCHEDULE D — APPENDIX 2 — Adjusting
Delivery of State Entitlements under Part XII of the Agreement
PART I — RULES WHICH APPLY AT ALL TIMES
1. Interstate
transfers of entitlements
2. Interstate
transfers of allocations
PART II — RULES WHICH ONLY APPLY IN PERIODS WHEN THERE
IS SPECIAL ACCOUNTING
3. Accounting under
clause 125 of the Agreement
SCHEDULE
D — APPENDIX 3 — Adjusting Cap on Diversions
1. Definitions
PART I — ADJUSTING FOR TRANSFERRED ALLOCATIONS
2. Adjusting cap for
transferred allocations
PART II — ADJUSTING FOR ENTITLEMENTS TRANSFERRED BY
TAGGED TRADE
3. Cap adjustment for
tagged trade
PART III — ADJUSTING FOR ENTITLEMENTS TRANSFERRED
BETWEEN 1 JULY 1994 AND THE EFFECTIVE DATE, USING EXCHANGE RATES
4. Interim register
5. Adjusting annual diversion
targets
PART IV — ADJUSTING FOR ENTITLEMENTS TRANSFERRED OR
CONVERTED AFTER THE EFFECTIVE DATE, USING EXCHANGE RATES
6. Object of Part
7. Operation of Part
8. Calculating
increases in cap required
9. Adjusting annual
diversion targets
SCHEDULE E — CAP ON DIVERSIONS
1. Purposes
2. Definitions
3. River Valleys and
Designated River Valleys
4. Diversion Formula
Register
5. Long‑term diversion
cap for New South Wales
6. Long‑term diversion
cap for Victoria
7. Long‑term diversion
cap for South Australia
8. Long‑term diversion
cap for Queensland
9. Long‑term diversion
cap for the Australian Capital Territory
10. Power of Authority to
alter long‑term diversion caps
11. Developing Analytical
Models
12. Calculation of annual
diversion targets
13. Monitoring and
Reporting
14. Appointment of
Independent Audit Group
15. Annual audit by the
Independent Audit Group
16. Power to require a
special audit of a designated river valley
17. Special audit by
Independent Audit Group
18. Declaration that
diversion cap has been exceeded
19. Advice to Ministerial
Council on remedial actions
SCHEDULE
E — APPENDIX 1 — Designated River Valleys
1. New South Wales
2. Queensland
3. Victoria
4. South Australia
5. Australian Capital
Territory
SCHEDULE
E — APPENDIX 2 — River Valleys
1. New
South Wales
2. Queensland
3. Victoria
4. South Australia
5. Australian Capital
Territory
SCHEDULE F — EFFECT OF THE SNOWY SCHEME
PART I — PRELIMINARY
1. Purpose
2. Definitions
PART II — CALCULATING WATER VOLUMES
3. The Snowy Scheme And
The River Murray
4. The Snowy Scheme And
The Murrumbidgee River
5. Excess Snowy River
Releases
6. Snowy River Release
Shortfalls
7. Accounting For Water
Releases
PART III — WATER ACCOUNTING
8. Entitlements Of New
South Wales And Victoria To Use Water
9. Water Estimated To Be
Under The Control Of The Authority
10. Allocation of Water to
New South Wales and Victoria
11. Tributary Inflows
12. Use By New South Wales
And Victoria Of Allocated Water
13. Required Annual Release
Shortfalls
14. Other Water Accounting
Provisions
PART IV — SNOWY‑MURRAY DEVELOPMENT (RIVER MURRAY)
ENVIRONMENTAL ENTITLEMENTS
15. Translation Factors
16. Apportionment Of
Environmental Entitlements
17. Valley Accounts
18. Long Term Diversion
Caps
PART V — RIVER MURRAY INCREASED FLOWS
19. Obligation
Of Authority To Make River Murray Increased Flows
20. Environmental
Objectives And Strategy For River Murray Increased Flows
21. Authority To Maintain
River Murray Increased Flows Accounts
22. Binding Effect of
Strategy
PART VI — NOTIFICATION AND CONSULTATION PROVISIONS
23. Authority To Be
Informed Of New Proposals
24. Snowy Scheme Annual
Water Operating Plan
25. Notifications Required
PART VII — ANALYTICAL MODELS
26. Developing Analytical
Models
PART VIII — OTHER PROVISIONS
27. Inter‑Valley Water
Transfers
MURRAY‑DARLING BASIN
AGREEMENT
THIS
AGREEMENT IS ENTERED INTO ON 2008 BY:
THE COMMONWEALTH OF AUSTRALIA (the “Commonwealth”),
THE STATE OF NEW SOUTH WALES (“New South Wales”),
THE STATE OF VICTORIA (“Victoria”),
THE STATE OF QUEENSLAND (“Queensland”),
THE STATE OF SOUTH AUSTRALIA (“South Australia”), and
THE AUSTRALIAN CAPITAL TERRITORY (“Australian Capital Territory”).
THE PARTIES AGREE AS FOLLOWS:
PART
I — INTERPRETATION
1. Purpose
The purpose of this Agreement is to promote and co‑ordinate
effective planning and management for the equitable, efficient and sustainable
use of the water and other natural resources of the Murray‑Darling Basin,
including by implementing arrangements agreed between the Contracting
Governments to give effect to the Basin Plan, the Water Act and State water
entitlements.
2. Definitions
In this Agreement save where inconsistent with the
context:
“annual estimates” means estimates prepared under
paragraph 74(1)(a).
“asset agreement” means the asset agreement, including
any amendment to it, made under clause 55.
“asset management plan” means the asset management
plan, including any amendment to it, approved under clause 53.
“Authority” means the Murray‑Darling Basin
Authority established by the Water Act.
“Authority Chair” has the meaning given by the
Water Act.
“Basin Community Committee” has the meaning given
by the Water Act.
“Basin Plan” has the meaning given by the Water
Act.
“Chief Executive” means the Chief Executive of the
Authority.
“Commission” has the same meaning as “Murray‑Darling
Basin Commission” under the Water Act.
“Committee” means the Basin Officials Committee
established by Part IV.
“Committee member” means a Committee member for a
State or for the Commonwealth, appointed in accordance with this Agreement.
“Constructing Authority” means:
(a) the Contracting Government by which:
(i) any
works authorised by this Agreement or the former Agreement have been, or are
being, or are to be constructed;
(ii) any
measures authorised under this Agreement or the former Agreement have been, or
are being, or are to be executed; or
(b) any public authority or any Minister constituted or
appointed for the purpose of constructing such works or executing such
measures.
“Contracting Government” means any of the Governments
of the Commonwealth, New South Wales, Victoria, South Australia, Queensland and
the Australian Capital Territory.
“conveyance water” has the meaning given by the
Water Act.
“corporate plan” means a corporate plan approved
under clause 34 and includes any amendment to that plan approved under
clause 35.
“critical human water needs” has the meaning given
by the Water Act.
“diversions” includes abstractions, impoundings and
appropriations of water that reduce the flow of a river.
“Doctors Point” means the location of the Doctors
Point stream gauging station.
“E.C.” means a unit of electro‑conductivity of
water, measured in micro‑siemens per centimetre at 25 degrees Celsius.
“financial year” means the twelve months beginning
on 1 July.
“former Agreement” has the same meaning as “former
MDB Agreement” in the Water Act.
“former Ministerial Council” means the Ministerial
Council under the former Agreement;
“Full Supply Level” means the full supply water
level:
(a) defined by reference to Australian Height Datum
specified by the design drawings for any structure subject to this Agreement;
or
(b) in the case of Menindee Lakes Storage, as defined
under clause 137.
“land” includes:
(a) Crown lands;
(b) buildings; and
(c) any interest, right or privilege in, over or affecting
any land.
“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:
(a) its original completion; or
(b) the completion of any improvement thereto or
replacement thereof,
but does not include ‑
(i) the
execution of any improvement to the design or function of that work; or
(ii) the
replacement of the whole of that work; or
(iii) work
to remedy the extraordinary failure of part or all of that work.
“major storages” means Lake Victoria, the Menindee
Lakes Storage and the storages formed by Dartmouth Dam and Hume Dam.
“measures” includes strategies, plans and programs
(including any activities for the purpose of conserving or enhancing the
environment) but does not include any river operations.
“minimum operating level” means the water level in
a storage, as determined from time to time by the Ministerial Council, below
which water must not be released.
“Minister” means a Minister of a Contracting
Government who has been appointed to the Ministerial Council by that
Contracting Government under clause 8.
“Ministerial Council” means the Ministerial Council
established by Part III.
“Murray‑Darling Basin” has the meaning given by the
Water Act.
“Murray‑Darling Basin Special Account” means the
special account of the Authority established under Part 9 Division 5
of the Water Act.
“natural flow” means the quantity of water that
would have flowed in a river past a particular point in a particular period but
for the effect during that period of diversions to or from, and impoundments
on, the river upstream of that point.
“officer” means a person who is a member of the
staff of the Authority within the meaning of the Water Act.
“period of special accounting” means a period of
special accounting declared under clause 123(1).
“prescribed rate” means either:
(a) a rate of 2% per annum above the maximum overdraft
rate fixed by the Reserve Bank of Australia for amounts of $100,000 or less
which is applicable at the time a payment becomes due, or, if no such rate is
fixed;
(b) a rate of 4% per annum above the rate payable on
Commonwealth securities of the longest term offered for public subscription in
Australia for the Commonwealth cash loan opened next before the time a payment
becomes due.
“public authority” means a body, whether
incorporated or not, established for a public purpose by or under a law of the
Commonwealth or a State and includes any local government body.
“regulated flow” is the flow resulting from the
release of stored water at the direction of the Authority other than during, or
in anticipation of, floods.
“reserve” means water available for release from
major storages at the direction of the Authority.
“river” and “tributary” respectively include
any affluent, effluent creek, anabranch or extension of, and any lake or lagoon
connected with, the river or tributary.
“river operations” means activities under this
Agreement relating to:
(a) the construction, operation, maintenance and renewal
of works on, adjacent to, or connected to the upper River Murray or the River
Murray in South Australia; and
(b) the execution of the provisions of this Agreement
concerning sharing water between State Contracting Governments; and
(c) the provision of other services relating to water, to
State Contracting Governments and other persons.
“RMO assets” means River Murray operations assets,
being:
(a) transitional RMO assets; and
(b) —
(i) works
constructed under clause 56 including works constructed for the purposes
of Schedule B; and
(ii) assets
purchased with amounts paid to a Constructing Authority by the Authority under
clause 78,
that are, or relate to:
(iii) works
on, adjacent to or connected to the upper River Murray or the River Murray in
South Australia; or
(iv) the
execution of provisions of this Agreement concerning sharing water between
South Australia, New South Wales and Victoria.
“State” means the State of New South Wales, the
State of Victoria, the State of South Australia, the State of Queensland or the
Australian Capital Territory.
“State Contracting Government” means any of the
Governments of New South Wales, Victoria, South Australia, Queensland or the
Australian Capital Territory.
“State MDB Act” means any of the following Acts: the
Murray‑Darling Basin Act 1992 (New South Wales); the Murray‑Darling
Basin Act 1993 (Victoria); the Water (Commonwealth Powers) Act 2008 (Queensland);
the Murray‑Darling Basin Act 1993 (South Australia); and the
Murray‑Darling Basin Agreement Act 2007 (Australian Capital Territory).
“State water entitlement” means the entitlement of
a State to water, determined in accordance with Part XII of this
Agreement.
“stored water” means water stored in or by:
(a) any of the works described in Schedule A; and
(b) subject to sub‑clause 95(1), the Menindee Lakes
Storage; and
(c) any of the works for storing water authorised under
clause 56.
“transitional RMO assets” means transitional River
Murray operations assets, being:
(a) the works set out in Schedule A to the former
Agreement (other than Weir No. 5 Redbank and Weir No. 7 Maude); and
(b) any other works the construction of which was
authorised under sub‑clause 50(1) of the former Agreement including works
authorised for the purposes of Schedule C of the former Agreement; and
(c) any other assets purchased with amounts paid by the
Commission under sub‑clause 73(1) of the former Agreement.
“upper River Murray”
means the aggregate of:
(a) the main course of the
River Murray upstream of the eastern boundary of the State of South Australia;
(b) all tributaries entering that part of the main course
upstream of Doctors Point;
(c) all effluents and anabranches of that part of the main
course, other than those excepted by the Ministerial Council;
(d) the watercourses connecting Lake Victoria to that main
course;
(e) the Darling River downstream of the Menindee Lakes
Storage; and
(f) the upper River Murray storages.
“upper River Murray storages” means Lake Victoria,
the Menindee Lakes Storage, the storages formed by Dartmouth Dam and Hume Dam
and by those weirs, and weirs and locks, described in Schedule A which are
upstream of the eastern boundary of South Australia.
“Water Act” means the Water Act 2007,
amended by the Water Amendment Act 2008 of the Commonwealth, and
otherwise as amended from time to time.
“water available for release at the direction of the
Authority” means water which can physically be released from a storage if
the Authority so directs, other than water which must not be released because
of sub‑clause 99(1).
“water resource plan” has the meaning given by the
Water Act.
“weir” includes:
(a) a weir and lock; and
(b) a barrage in any of the channels at or near the mouth
of the River Murray.
3. Interpretation
(1) In this
Agreement, unless the contrary intention appears:
(a) a reference to any Act
includes any Act amending, or in substitution for, that Act;
(b) a reference to this Agreement includes a reference to ‑
(i) the
Schedules to this Agreement, and
(ii) any
amendment of or addition to this Agreement or the Schedules hereto;
(c) words importing the singular include the plural and
vice versa;
(d) words importing any gender include any other gender;
(e) a reference to a Committee member for the Commonwealth
or a State includes a person who is acting as a Committee member for the
Commonwealth or that State pursuant to an appointment under clause 21;
(f) a reference to a power, function or duty of the
Authority is a reference to a power, function or duty of the Authority:
(i) under
this Agreement; or
(ii) under
the Water Act for the purposes of this Agreement,
but does not include any other
power, function or duty conferred on it by the Water Act;
(g) a reference to a power, function or duty of the
Ministerial Council or the Committee is a reference to a power, function or
duty of that body:
(i) under
this Agreement; or
(ii) for
the purposes of the Agreement because of the operation of Part 10A of the
Water Act,
but does not include any other
power, function or duty conferred on it by the Water Act.
(2) No
explanatory note or heading to a clause is part of this Agreement.
(3) In
interpreting a provision of this Agreement, a construction that would promote
the purpose or object underlying the Agreement (whether or not that purpose or
object is expressly stated in the Agreement) shall be preferred to a
construction that would not promote that purpose or object.
PART
II — APPROVAL, AMENDMENT AND ENFORCEMENT
4. Revocation
of Former Agreement
The former Agreement is hereby revoked.
5. Commencement
of Agreement and Amendments to Agreement
(1) This Agreement comes into
effect upon commencement of Schedule 1 of the Water Amendment Act 2008
of the Commonwealth, which amends the Water Act so as to set out the text of
the Agreement as a schedule to the Water Act.
(2) An amendment to this
Agreement will take effect upon the registration of a legislative instrument,
in accordance with the Legislative Instruments Act 2003 (Commonwealth),
that amends the schedule referred to in sub‑clause (1) by incorporating into
the Agreement amendments that have been agreed by the Ministerial Council.
(3) For the purposes of sub‑clause
(2), the Commonwealth Government:
(a) may only register an instrument that incorporates into
the Agreement amendments that have been agreed by the Ministerial Council; and
(b) will register an instrument that incorporates such
amendments as soon as practicable after they have been agreed by the
Ministerial Council.
(4) A reference in sub‑clause
(2) to an amendment includes a reference to the insertion, omission, repeal,
substitution, addition or relocation of words or matter.
6. Parties
to Provide for Enforcement of Agreement
Each of the Contracting Governments so far as its
jurisdiction extends and so far as it may be necessary shall provide for or
secure the execution and enforcement of the provisions of this Agreement.
PART
III —THE MINISTERIAL COUNCIL
7. Establishment
of Ministerial Council
(1) The Ministerial Council
is established.
(2) The Ministerial Council
shall have such status and such powers and duties and enjoy such privileges and
immunities as may be conferred upon it by this Agreement or the Water Act.
8. Membership
of the Ministerial Council
(1) The Council consists of a
Minister of each of the Contracting Governments who is appointed in writing by
that Contracting Government.
(2) Whenever a member of the
Ministerial Council representing a Contracting Government is:
(a) absent from Australia or from duty;
(b) unable for any reason to attend a meeting of the
Ministerial Council; or
(c) otherwise unable to perform the duties of a member of
the Ministerial Council,
that
Contracting Government may appoint another Minister to act in the place of that
member, and while so acting that other Minister shall have all the powers and perform
all the duties of that member.
(3) A member of the
Ministerial Council ceases to be a member if:
(a) the member ceases to be a Minister; or
(b) another Minister of the Contracting Government is
appointed in substitution for the member.
(4) Anything done by or in
relation to a person purporting to act under an appointment under this clause
is not invalid merely because there was a defect or irregularity in connection
with the appointment.
9. Functions
of the Ministerial Council
The functions of the Ministerial Council are:
(a) to consider and determine outcomes and objectives on
major policy issues of common interest to the Contracting Governments in
relation to the management of the water and other natural resources of the
Murray‑Darling Basin, including in relation to its role in the provision of
critical human water needs, but otherwise only in so far as those issues are
not provided for in the Basin Plan;
(b) to make determinations about the matters specified in
this Agreement;
(c) to approve the annual corporate plan and budget, and
asset management plan, prepared by the Authority for the purposes of this
Agreement;
(d) to agree upon amendments to this Agreement including
amendments to, or removal or addition of, Schedules to this Agreement as the
Ministerial Council considers desirable from time to time;
(e) to exercise such other functions as may be conferred
on the Council by or under this Agreement or the Water Act.
10. Ministerial
Council May Direct Committee
The Ministerial Council may give directions to the
Committee concerning the performance of the Committee’s functions and powers
and the Committee shall comply with those directions.
11. Conferral
of functions by Ministerial Council
(1) The Ministerial Council
may confer any of its functions and powers on the Committee or the Authority.
(2) The conferral of a
function or power under this clause:
(a) may be subject to such conditions or limitations as
the Ministerial Council may specify; and
(b) may be varied or revoked by the Ministerial Council
(whether or not constituted by the persons constituting the Ministerial Council
at the time when the power or function was conferred); and
(c) does not derogate from the ability of the Ministerial
Council to act in any matter.
12. Ministerial
Council May Require Committee and Authority to Report
The Ministerial Council may require a report from the
Committee or the Authority on any of the Committee’s or Authority’s functions.
13. Proceedings
of the Ministerial Council
(1) The Ministerial Council
shall meet at least once in each year but otherwise at such times as it sees
fit and shall, subject to this Agreement, determine its own procedure.
(2) Subject to sub‑clauses
(3) and (4), the quorum for a meeting of the Ministerial Council shall be a Minister
for each Contracting Government, appointed under clause 8.
(3) The quorum of the
Ministerial Council for debating any issue, or considering or making any
resolution on an issue related to any provision of the Agreement, or to any
policy, determination or decision of the Ministerial Council, which does not
apply, in whole or in part, to either or both of Queensland and the Australian
Capital Territory by virtue of Part VI, does not include the Minister
appointed by the Government of Queensland or the Minister appointed by the
Australian Capital Territory or both of those Ministers (as the case requires).
(4) The quorum of the
Ministerial Council for debating any issue, or considering or making any
resolution on an issue in respect of its functions under the Water Act:
(a) includes the Minister appointed by the Government of
Queensland, unless the matter relates to Part 2A of the Water Act, in
which case the quorum includes that Minister only if the issue relates to
critical human water needs in a way that affects Queensland, or affects the
sharing of Basin water resources between Queensland and New South Wales; and
(b) includes the Minister appointed by the Australian
Capital Territory, unless the matter relates to Part 2A of the Water Act,
in which case the quorum includes that Minister only if the issue relates to
critical human water needs in a way that affects the Australian Capital
Territory.
(5) A person who is not
included in a quorum may not vote on any resolution referred to in sub‑clause
(3) or (4).
(6) A resolution before the
Ministerial Council will be carried only by a unanimous vote of all Ministers
present who constitute a quorum.
(7) The Chair of the
Ministerial Council shall be the Commonwealth Minister appointed under clause 8.
14. Resolutions
Other than at Meetings
(1) A decision of the
Ministerial Council may be made other than at a meeting of the Ministerial
Council if made in accordance with this clause.
(2) If:
(a) the text of a proposed resolution is sent or given in
writing by facsimile or other transmission by an officer authorised by the
Authority to a Minister appointed under clause 8 or if that Minister is
unavailable a Minister for the same Contracting Government authorised for the
purpose by that Government; and
(b) such Minister approves the proposed resolution and
notifies that officer in writing sent or given by facsimile or other
transmission,
the
proposed resolution is deemed to have been approved by the Minister appointed under
clause 8.
(3) When a Minister from each
Contracting Government has approved a resolution in accordance with sub‑clause
(2) the resolution shall be deemed to have become a decision of the Ministerial
Council at the date and time the last of those Ministers has approved the
resolution.
(4) Any decision of the
Ministerial Council made in accordance with this clause, must be recorded by an
officer authorised by the Authority and a copy of the decision sent to each
member of the Ministerial Council within 21 days after the decision is made.
(5) The record made pursuant
to sub‑clause (4) shall be confirmed at the next meeting of the Ministerial
Council.
(6) The text of a resolution
for which approval is sought under this clause, relating to any provision of
this Agreement, or to any issue in respect of the Ministerial Council’s
functions under the Water Act, which does not apply to either or both of
Queensland and the Australian Capital Territory by virtue of the provisions of
Part VI or sub‑clause 13(4), need not be referred to or approved by
any Minister from the Government of Queensland or the Australian Capital
Territory or both (as the case requires).
15. Appointment
of Committees
(1) The Ministerial Council
may from time to time appoint such temporary or standing committees as it sees
fit.
(2) A committee shall have
such members, terms of reference, powers and functions as the Ministerial
Council determines.
(3) A member of a committee
shall hold office on such terms as the Ministerial Council may determine.
(4) A member of a committee
shall receive such allowances and expenses as the Authority may from time to
time determine.
16. Basin
Community Committee to Advise Ministerial Council
(1) The Basin Community
Committee is to provide advice to the Ministerial Council on any matter
relating to the Ministerial Council’s functions, at the request of the
Ministerial Council.
(2) The Ministerial Council
may invite the Chair of the Basin Community Committee to attend a meeting of
the Ministerial Council as an observer.
PART
IV — THE COMMITTEE
DIVISION 1 — ESTABLISHMENT AND MEMBERSHIP OF THE
COMMITTEE
17. Establishment
of Basin Officials Committee
(1) The Basin Officials
Committee (the Committee) is established.
(2) The Committee shall have
such status and such powers and duties and enjoy such privileges and immunities
as may be conferred upon it by this Agreement or the Water Act.
18. Membership
of the Committee
The Committee consists of:
(a) a Chair; and
(b) five other members, each of whom represents a
different State Contracting Government.
19. Appointment
of Chair of the Committee
(1) The Chair of the
Committee is to be appointed by the Commonwealth Minister by written
instrument.
(2) The appointment of the
Chair of the Committee is not invalidated merely because of a defect or
irregularity in connection with the appointment.
20. Appointment
of Other Members of the Committee
(1) Any other member of the
Committee is to be appointed, by written instrument, by the Minister for the
State Contracting Government that the member is to represent.
(2) The member’s appointment
is not invalidated merely because of a defect or irregularity in connection
with the appointment.
21. Acting
Members of the Committee
(1) The Commonwealth Minister
may, by written instrument, appoint an individual to act as the Chair of the
Committee.
(2) The Minister of a State
Contracting Government may, by written instrument, appoint an individual to act
as the Committee member for that Contracting Government.
(3) An individual’s
appointment under sub‑clause (1) or (2) to act as a Committee member:
(a) does not cease to have effect merely because the
Committee member’s appointment ceases to have effect; and
(b) if that Committee member is replaced by the
appointment of another Committee member—continues in effect in relation to the
new Committee member.
(4) An individual appointed
to act as a Committee member may act as, and perform the functions and exercise
the powers of, the Committee member:
(a) during a vacancy in the office of the Committee
member, whether or not an appointment has previously been made to the office;
or
(b) during any period, or during all periods, when the
Committee member:
(i) is
absent from duty or Australia; or
(ii) is,
for any reason, unable to attend a meeting of the Committee; or
(iii) is,
for any reason, unable to perform the duties of the office.
(5) Anything done by or in
relation to an individual purporting to act under an appointment is not invalid
merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with
the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
22. Period
of Appointment
A member of the Committee (including an acting member)
holds office for the period specified in his or her instrument of appointment,
and is eligible for re‑appointment.
23. Standing
Obligation to Disclose Interests
(1) A member of the Committee
(including an acting 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.
Note: The
member must also disclose the interest under clause 24 if the interest is
in a matter being considered or about to be considered by the Committee.
(2) Disclosure is required
whether or not there is any particular matter under consideration that gives
rise to an actual conflict of interest.
(3) The disclosure must be by
written notice given:
(a) if the member is the Chair of the Committee—to the
Chair of the Ministerial Council; or
(b) if the member is not the Chair of the Committee—to the
Chair of the Committee.
The
notice must be given as soon as practicable after the member becomes aware of the potential for
conflict of interest.
(4) Sub‑clause (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.
24. Obligation
to Disclose Interests Before Considering a Particular Matter
(1) If:
(a) a member of the Committee (including an acting member)
has an interest in a matter being considered or about to be considered by the
Committee; 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 the matter;
the
member must disclose the nature of the interest to a meeting of the Committee.
(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 Committee.
(4) Sub‑clause (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.
25. Chief
Executive and Authority Chair May Attend Meetings
(1) The Chief Executive and
Authority Chair:
(a) may attend, and participate in, any meeting of the
Committee; and
(b) are entitled to access to any documents of the
Committee that are relevant to such a meeting.
(2) However, the Chief
Executive and the Authority Chair are not entitled to vote on a matter to be
decided in the meeting.
(3) If:
(a) the Chief Executive or Authority Chair has an interest
in a matter being considered or about to be considered by the Committee; and
(b) the interest is an interest that could conflict with
the proper performance of the functions of his or her office, as those
functions relate to his or her attendance at, or participation in, a meeting of
the Committee,
he or
she must disclose the nature of the interest to the meeting of the Committee.
(4) The disclosure must be
made as soon as possible after the relevant facts have come to his or her
knowledge.
(5) The disclosure must be
recorded in the minutes of the meeting of the Committee.
(6) Sub‑clause (3) applies to
interests:
(a) whether direct or indirect, and whether or not
pecuniary; and
(b) whether acquired before or after the appointment of
the Chief Executive or Authority Chair.
DIVISION 2 — FUNCTIONS AND POWERS OF THE COMMITTEE
26. Functions
and Powers of the Committee
(1) The functions of the
Committee are:
(a) to advise the Ministerial Council in relation to
outcomes and objectives on major policy issues of common interest to the
Contracting Governments in relation to the management of the water and other
natural resources of the Murray‑Darling Basin, including in relation to the
Ministerial Council’s role in the provision of critical human water needs, but
otherwise only in so far as those issues are not provided for in the Basin
Plan;
(b) to give effect to any policy or decision of the
Ministerial Council, as required by the Ministerial Council;
(c) to exercise responsibility for high level decision
making in relation to river operations, including by setting objectives and
outcomes to be achieved by the Authority in relation to river operations;
(d) to exercise the powers and discharge the duties
conferred on it by or under this Agreement or the Water Act.
(2) Paragraphs (1)(b)
and (c) do not operate:
(a) to confer any powers on the Committee in addition to
powers conferred by other provisions of this Agreement or the Water Act;
(b) to enable the Committee to —
(i) do
anything; or
(ii) require
the Authority to do anything,
for which Part VII and subsequent Parts provide,
otherwise than as provided for by those Parts as amended from time to time.
(3) The advice referred to in
paragraph (1)(a) shall be determined by majority vote of the Committee
members who constitute a quorum. In the event of a unanimous decision not
being reached, each Committee member may tender separate advice to the
Ministerial Council.
DIVISION 3 — DECISION MAKING BY THE COMMITTEE
27. Proceedings
of the Committee
(1) The Committee members may
meet together for the transaction of the Committee’s business and may adjourn
any meeting.
(2) Any Committee member may
at any time call a meeting of the Committee.
(3) Each Committee member
shall have one vote.
(4) Subject to sub‑clauses
(5) and (6), one Committee member for each Contracting Government shall
constitute a quorum.
(5) The quorum of the
Committee for debating any issue, or considering or making any resolution on an
issue, related to any provision of the Agreement, or to any policy,
determination or decision of the Ministerial Council or the Committee, which
does not apply, in whole or in part, to either or both of Queensland and the
Australian Capital Territory by virtue of Part VI, does not include the
Committee member for Queensland or the Committee member for the Australian
Capital Territory, or both (as the case requires).
(6) The quorum of the
Committee for debating any issue, or considering or making any resolution on an
issue in respect of its functions under the Water Act:
(a) includes the Committee member for Queensland unless
the matter relates to Part 2A of the Water Act, in which case the quorum
includes that member only if the issue relates to critical human water needs in
a way that affects Queensland, or affects the sharing of Basin water resources
between Queensland and New South Wales;
(b) includes the Committee member for the Australian
Capital Territory unless the matter relates to Part 2A of the Water Act,
in which case the quorum includes that member only if the issue relates to
critical human water needs in a way that affects the Australian Capital
Territory.
(7) A person who is not
included in a quorum may not vote on any resolution referred to in sub‑clause
(5) or (6).
(8) Except as provided in sub‑clauses 26(3)
and 99(2) a resolution before the Committee will be carried only:
(a) by a unanimous vote of all Committee members present
who constitute a quorum; or
(b) by majority vote of the Committee members present who
constitute a quorum, if those members by a unanimous vote agree that the
resolution will be carried in that way.
(9) The Committee must,
subject to this Agreement, determine its own procedure.
(10) The Committee must keep
proper minutes of its proceedings.
28. Resolutions
Other than at Meetings
(1) The Committee may make a
resolution other than at a duly convened meeting.
(2) Before a resolution is
made pursuant to sub‑clause (1):
(a) subject to sub‑clause (4), the text of the proposed
resolution must be referred to the Committee member appointed by each
Contracting Government; and
(b) that Committee member must approve the text of the
proposed resolution.
(3) Subject to sub‑clause
(4), a resolution under this clause shall be made at the time when each
Committee member referred to in sub‑clause (2) has signified approval of the
resolution to an officer authorised by the Authority.
(4) The text of a resolution
for which approval is sought under this clause, relating to any provision of
this Agreement, or to any issue in respect of the Committee’s functions under
the Water Act, which does not apply to either or both of Queensland and the
Australian Capital Territory by virtue of the provisions of Part VI or sub‑clause 27(6),
need not be referred to or approved by either or both the Committee member for
Queensland or the Committee member for the Australian Capital Territory (as the
case requires).
(5) A Committee member may
signify approval of a resolution by any means, provided that:
(a) approval by telephone must be signified in person by
the Committee member; and
(b) approval in writing must be by letter or facsimile
transmission which has been dated and signed by the Committee member.
(6) A resolution made under
this clause must be duly recorded and a copy sent to each Committee member
within 21 days of the resolution being made.
PART
V — THE AUTHORITY
29. Functions,
Powers and Duties of the Authority
(1) The functions of the
Authority are:
(a) to give effect to any decision of the Ministerial
Council, including any decision made under sub‑clause (3);
(b) to give effect to any high level decision of the
Committee in relation to river operations;
(c) to provide advice to the Ministerial Council and the
Committee as required to fulfil their functions;
(d) to provide administrative support to the Ministerial
Council and the Committee; and
(e) to exercise the powers and discharge the duties
conferred on it by or under this Agreement.
(2) Subject to a decision of
the Ministerial Council made under sub‑clause (3), in carrying out its
functions the Authority is to act in accordance with:
(a) the provisions of this Agreement;
(b) the corporate plan;
(c) the asset management plan;
(d) the asset agreement; and
(e) in relation to river operations, the requirements
of clause 30.
(3) The Ministerial Council
may, if it agrees that an emergency exists, decide that the Authority should
carry out functions or exercise powers for the purposes of this Agreement:
(a) that are in addition to functions or powers conferred
by the other provisions of this Agreement; or
(b) otherwise than as required by sub‑clause (2).
30. Authority’s
Functions in Relation to River Operations
(1) The Authority must not
exercise any of its functions in relation to river operations in a manner that
has the potential to have a material effect on State water entitlements unless
it does so in accordance with a decision of the Committee made under this
Agreement, or a provision of the document approved under clause 31.
(2) Subject to sub‑clause
(3), the Authority must carry out its functions in relation to river operations
in accordance with objectives and outcomes specified in the document approved
under clause 31 or, during the period before that document has been
approved, clause 32.
(3) If clause 33
requires the Authority to refer to the Committee a matter relating to the
Authority’s functions in relation to river operations, the Authority must act
in accordance with a determination made under that clause.
31. Objectives
and outcomes for river operations
(1) The Committee must each
year, unless the Committee determines otherwise, approve, and may from time to
time amend, a document which specifies the objectives and outcomes to be
achieved by the Authority in carrying out the Authority’s functions in relation
to river operations.
(2) A document (including an
amended document) approved under this clause remains in effect until the
Committee resolves to approve a new document.
(3) A document approved under
this clause may require the Authority to refer to the Committee for the
purposes of a determination under clause 33 any specified matter relating
to the carrying out of the Authority’s functions in relation to river
operations, including any decision that the Authority proposes to make in
relation to river operations, that has the potential to have a material effect
on State water entitlements.
(4) If a document approved
under this clause includes a requirement to refer, the document must specify
the criteria to be applied to determine whether a matter has the potential to
have a material effect on State water entitlements and thus needs to be
referred.
32. Continuation
of Resolutions, Practices and Procedures Relating to River Operations
(1) From the commencing day,
and until the Committee approves a document under clause 31 the Authority
must, subject to a determination under clause 33, carry out the Authority’s
functions in relation to river operations in accordance with such of the
resolutions, practices and procedures in relation to the Commission’s water
business as are in effect immediately before the commencing day.
(2) In this clause
“Commission’s water business” has the same meaning as under the former
Agreement.
33. Referrals
and Determinations in Relation to River Operations
(1) The Authority must refer
to the Committee any matter relating to carrying out river operations:
(a) that the document approved under clause 31
requires the Authority to refer; or
(b) that two or more members of the Committee have
notified the Authority and the Committee in writing is a matter that should be
referred to the Committee because the document approved under clause 31
has not made relevant specifications about the matter, and the matter has the
potential to have a material effect on State water entitlements.
(2) A
notification made under paragraph (1)(b) may be withdrawn at any time
before a determination is made under this clause, by notice in writing given to
the Authority and the Committee by the members of the Committee who made the
notification.
(3) The Authority must refer
to the Committee any decision that the Authority proposes to make in relation
to river operations that has the potential to have a material effect on State
water entitlements, unless the decision is authorised by the document approved
under clause 31 or a previous determination made under this clause.
(4) The Authority may, before
the Committee has approved a document under clause 31, refer to the
Committee a proposal by the Authority to carry out its functions in relation to
river operations in a manner other than in accordance with the resolutions,
practices and procedures referred to in clause 32.
(5) If the Authority refers a
matter to the Committee under this clause, the Committee must consider the
matter and may make a determination in relation to it.
(6) A determination under sub‑clause
(5) will be made:
(a) by a unanimous vote of all Committee members present
who constitute a quorum; or
(b) by majority vote of the Committee members present who
constitute a quorum, if those members by a unanimous vote agree that the
resolution will be carried in that way.
(7) If the Committee cannot
make a determination in relation to a referred matter, the matter must be
referred to the Ministerial Council as if it were a motion submitted by a
Committee member for the purposes of clause 140.
(8) After a matter has been
referred to the Committee under this clause, the Authority must:
(a) continue to carry out its functions in relation to
river operations in accordance with resolutions, practices and procedures that
were in effect before the matter was referred; and
(b) in the case of a proposed decision, must not make the
decision, until such time as the Committee makes a determination under this
clause.
34. Annual
Corporate Plan
(1) The Authority must, each
year and by the date determined by the Ministerial Council, prepare a draft
corporate plan.
(2) The draft corporate plan
must:
(a) set out the activities of the Authority for the next
ensuing four years, including the activities through which the Authority
intends to achieve the outcomes and objectives —
(i) set
by the Ministerial Council; and
(ii) in respect
of river operations, set by the Committee;
(b) set out new capital works and operational and
maintenance programs to be undertaken or required under Part VIII of this
Agreement, including as may be required to implement the asset management plan;
and
(c) include the budget for the activities, works and
programs, which must be developed in accordance with clause 74.
(3) The draft corporate plan
may include any other matters relevant to the Authority’s functions as the
Authority sees fit.
(4) The Authority must
provide the draft corporate plan to the Committee.
(5) After considering the
draft corporate plan, the Committee must submit the draft plan and the
Committee’s advice in relation to it, to the Ministerial Council.
(6) After receiving the plan
and the advice of the Committee, the Ministerial Council may:
(a) approve the plan with or without amendment; or
(b) refer the plan back to the Authority for further
consideration.
35. Amendment
of Annual Corporate Plan
(1) If the Authority
considers that it is necessary or desirable for there to be a significant
variation to the corporate plan, the Authority must prepare a draft amendment
to the corporate plan and provide it to the Committee.
(2) After considering the
draft amendment, the Committee must submit the draft amendment and the
Committee’s advice in relation to it, to the Ministerial Council.
(3) After receiving the draft
amendment and the advice of the Committee, the Ministerial Council may:
(a) approve the amendment of the corporate plan with or without
further amendment; or
(b) refer the draft amendment back to the Authority for
further consideration.
PART
VI — APPLICATION OF AGREEMENT TO QUEENSLAND AND THE AUSTRALIAN CAPITAL
TERRITORY
36. Application
of Agreement to Queensland and the Australian Capital
The provisions of the Agreement apply to the State of
Queensland and the Australian Capital Territory except:
(a) for those provisions declared not to apply by this
Part; and
(b) to the extent that provisions are modified by this
Part; and
(c) where the Ministerial Council or the Committee
determines that a provision does not apply pursuant to clause 39.
37. Provisions
Not Applying to Queensland
(1) Parts XII, XIII and XIV
of the Agreement do not apply to the State of Queensland.
(2) Clause 145 of the
Agreement only applies to the State of Queensland in respect of an act,
omission or loss incurred, in relation to the bona fide execution of powers:
(a) in or related to the State of Queensland; or
(b) under a provision of the Agreement as it applies to
the State of Queensland.
(3) Insofar as any provision
of the Agreement bears on a matter set out in sub‑clause (4), that provision
does not apply to the State of Queensland.
(4) Sub‑clause (3) applies
to:
(a) any issue concerning the design, execution,
construction, funding, operation, maintenance, alteration or replacement of any
works, measures, policies or strategies solely associated with the management
of the upper River Murray and the River Murray in South Australia;
(b) any liability of the Committee or Authority, any
Contracting Government or any Constructing Authority in respect of ‑
(i) any
matter referred to in paragraph (4)(a); or
(ii) any
matter arising under a provision of the Agreement which the Ministerial Council
or Committee has determined does not apply to the State of Queensland under
clause 39.
(5) Nothing in the Agreement
requires the State of Queensland:
(a) to contribute to the costs of, or associated with,
remedying any actual or anticipated damage referred to in paragraph 57(c) of
the Agreement; or
(b) to meet any compensation for damage paid under clause 84
of the Agreement,
except where the State of Queensland
has contributed to the construction, maintenance or operation expenses of the
works to which the costs or compensation relate.
38. Provisions
not applying to the Australian Capital Territory
(1) Parts XII, XIII and XIV
of the Agreement do not apply to the Australian Capital Territory.
(2) Clause 145 of the
Agreement only applies to the Australian Capital Territory in respect of an
act, omission or loss incurred in relation to the bona fide execution of
powers:
(a) in or related to the Australian Capital Territory; or
(b) under a provision of the Agreement as it applies to
the Australian Capital Territory.
(3) Insofar as any provision
of the Agreement bears on any of the following matters, it does not apply to
the Australian Capital Territory:
(a) any matter concerning the design, execution,
construction, funding, operation, maintenance, alteration or replacement of any
works, measures, policies or strategies solely associated with the management
of the upper River Murray and River Murray in South Australia;
(b) any liability of the Committee or Authority, any
Contracting Government or any Constructing Authority in respect of:
(i) any
matter referred to in paragraph (3)(a); or
(ii) any
matter arising under a provision of the Agreement which the Ministerial Council
or Committee has determined does not apply to the Australian Capital Territory
under clause 39.
(4) Nothing in the Agreement
requires the Australian Capital Territory:
(a) to contribute to the costs of or associated with
remedying, any actual or anticipated damage referred to in paragraph 57(c) of
the Agreement; or
(b) to meet any compensation for damage paid under clause 84
of the Agreement,
except where the Australian Capital
Territory has contributed to the construction, maintenance or operation
expenses of the works to which the costs or compensation relate.
39. Powers
of Ministerial Council and Committee to make determinations
(1) The Ministerial Council
or the Committee, as the case may be, may:
(a) determine that a provision of the Agreement does not
apply to the State of Queensland or the Australian Capital Territory, or both,
either generally or in relation to a particular matter or class of matters; and
(b) revoke any such determination made by it, or any
similar such determination made by the former Ministerial Council under the
former Agreement.
(2) The Ministerial Council
may, at any time, direct that any determination made:
(a) by the Committee under sub‑clause (1); or
(b) by the Commission or the former Ministerial Council
under clause 4 of Schedule D or clause 6 of Schedule H of the former
Agreement,
is to be deemed to have been either
revoked, or altered in any way directed by the Ministerial Council.
(3) The Committee and, if the
case requires, the Authority, must give effect to any determination made by the
Ministerial Council under sub‑clause (1).
40. Factors
to be Considered by Ministerial Council or Committee
(1) In making a determination
under clause 39, the Ministerial Council or the Committee must apply the
guidelines set out in this clause, unless the Ministerial Council or the
Committee, as the case may be, determines otherwise.
(2) A provision should apply
to the State of Queensland if:
(a) issues arising under that provision are likely to
cause a significant benefit or a significant detriment to Queensland;
(b) any decisions or actions taken within Queensland
without reference to that provision might cause significant benefit or
significant detriment to any part of the Murray‑Darling Basin within
Queensland;
(c) the Government of Queensland has incurred or may incur
any financial obligation as a result of that provision.
(3) A provision should not
apply to the State of Queensland if issues arising under that provision are
only likely to concern that portion of the Murray‑Darling Basin delineated in
the plan comprising Schedule C to this Agreement.
(4) A provision should not
apply to the Australian Capital Territory unless:
(a) issues arising under that provision are likely to
cause a significant benefit or a significant detriment to the Australian
Capital Territory; or
(b) any decisions or actions taken within the Australian
Capital Territory without reference to that provision might cause significant
benefit or significant detriment to any part of the Murray‑Darling Basin within
the Australian Capital Territory; or
(c) the Government of the Australian Capital Territory has
incurred or may incur any financial obligation as a result of that provision.
41. Application
of Previous Ministerial Council Decisions to Queensland
(1) The Ministerial Council
may affirm that a policy, determination or decision of the former Ministerial
Council applies to the State of Queensland.
(2) Any such policy,
determination or decision shall apply to the State of Queensland in whole or in
part, or with such modification, as the Ministerial Council decides.
(3) This clause applies only
to policies, determinations or decisions made by the former Ministerial Council
between 27 August 1986 and the first meeting of the former Ministerial
Council after Schedule D of the former Agreement came into force.
(4) Any policy, determination
or decision referred to in sub‑clause (3) which is not affirmed by the
Ministerial Council under sub‑clause (1) does not apply to Queensland.
42. Application
of previous Ministerial Council decisions to the Australian Capital Territory
(1) Except as provided in
this clause, every policy, determination or decision made by the former
Ministerial Council before it approved Schedule H of the former Agreement, in
relation to any provision or matter which, by virtue of this Part, applies in
whole or in part to the Australian Capital Territory, applies to the Australian
Capital Territory.
(2) If the Ministerial
Council allows, the Australian Capital Territory may propose to the Committee
that a policy, determination or decision of the former Ministerial Council
referred to in sub‑clause (1):
(a) should apply to the Australian Capital Territory; or
(b) should only apply to the Australian Capital Territory
with modifications; or
(c) should not apply to the Australian Capital Territory.
(3) The Committee shall
consider any proposal made under sub‑clause (2) and may make such
recommendations to the Ministerial Council about the proposal, as it thinks
fit.
(4) The Ministerial Council,
after considering any recommendations made by the Committee, may either:
(a) adopt the proposal, with or without amendments; or
(b) reject the proposal.
(5) Any policy, determination
or decision referred to in sub‑clause (1), which is not mentioned in a proposal
as adopted by the Ministerial Council under sub‑clause (4), ceases to apply to
the Australian Capital Territory on the day on which that proposal is adopted
by the Ministerial Council.
PART
VII— INVESTIGATION, MEASUREMENT AND MONITORING
43. Investigations
and Studies
(1) The Authority may co‑ordinate,
carry out or cause to be carried out surveys, investigations and studies
regarding the desirability and practicability of works or measures for the
equitable, efficient and sustainable use of water and other natural resources
of the Murray‑Darling Basin, including but not limited to works or measures
for:
(a) the conservation and regulation of river water;
(b) the protection and improvement of the quality of river
water;
(c) the conservation, protection and management of aquatic
and riverine environments; and
(d) the control and management of groundwater which may
affect the quality or quantity of river water.
(2) The Authority may,
without further approval of any Contracting Government, carry out, or cause to
be carried out surveys, investigations or studies pursuant to sub‑clause (1) on
or adjacent to:
(a) the upper River Murray; and
(b) the River Murray in South Australia.
(3) Except as provided in sub‑clause
(2) or as authorised under the Water Act, the Authority must not carry out or
cause to be carried out surveys, investigations or studies within the territory
of any State without obtaining the consent of that State Contracting
Government.
44. Monitoring
The Authority, subject to clause 46, may establish,
maintain and operate effective means for monitoring the quality, extent, diversity
and representativeness of water and other natural resources of the Murray‑Darling
Basin, including but not limited to:
(a) aquatic and riverine environments; and
(b) the effect of groundwater on water and other natural
resources.
45. Measurements
of Water Quantity and Quality
The Authority must establish, maintain and operate an
effective and uniform system:
(a) for making and recording continuous measurements of ‑
(i) the
flow of the River Murray, and tributaries of the River Murray within the
boundaries of each State; and
(ii) the
volume of stored water,
at such locations as the Authority deems necessary to
determine the volume of the intake from the several portions of the drainage
area of the River Murray, the flow at selected locations along the River Murray
and the losses from selected reaches of the River Murray, with their positions
and modes of occurrence;
(b) for making and recording continuous measurements of
all diversions, whether natural or artificial, or partly natural and partly
artificial, from the River Murray and its tributaries; and
(c) for measuring and
monitoring the quality of ‑
(i) River
Murray water;
(ii) water
in tributaries of the River Murray at such locations at or near the confluence
of each of those tributaries with the River Murray as the Authority, after
consultation with the appropriate authorities of each of the Contracting
Governments, deems necessary; and
(iii) stored
water.
46. Need
for Approval in Certain Cases
(1) The Authority may,
without further approval of any Contracting Government, establish, maintain and
operate any system or means referred to in clauses 44 and 45 on or
adjacent to:
(a) the upper River Murray; and
(b) the River Murray in South Australia.
(2) Except as provided in sub‑clause
(1) or as authorised under the Water Act, the Authority must not establish,
maintain or operate any system or means referred to in clauses 44 and 45
within the territory of any State without:
(a) informing the Committee of the proposed system or
means; and
(b) obtaining the consent of that State Contracting
Government.
47. Power
to Arrange Data in Lieu
Instead of establishing, maintaining or operating systems
and means referred to in clauses 44 and 45, the Authority may:
(a) adopt the results of any measurements or monitoring
made by any Contracting Government; or
(b) request a State Contracting Government to carry out
any monitoring or measurement within its territory in such manner as the
Authority considers necessary.
48. Water
Quality Objectives
(1) The Authority must
formulate water quality objectives for the River Murray and make
recommendations with respect thereto to the Ministerial Council.
(2) This clause ceases to
have effect after the Basin Plan first takes effect.
49. Authority
to be Informed of New Proposals
(1) Whenever a Contracting
Government or a public authority is considering any proposal which may
significantly affect the flow, use, control or quality of any water in the
upper River Murray and in the River Murray in South Australia, that Contracting
Government must, or must ensure that the public authority shall:
(a) inform the Authority of the proposal; and
(b) provide the Authority with all necessary information
and data to permit it to assess the anticipated effect of the proposal on the
flow, use, control or quality of the water.
(2) The necessary information
and data must be provided in sufficient time to allow the Authority:
(a) to assess the possible effect of the proposal on the
flow, use, control or quality of that water; and
(b) to make representations thereon to that Contracting
Government or public authority,
before the Contracting Government or
public authority decides if the proposal will proceed.
(3) The Authority shall
consult with each Contracting Government, and with any public authority
responsible to a Contracting Government which that Contracting Government or
the Authority considers is likely to consider a proposal of the type referred
to in sub‑clause (1), with a view to reaching agreement with that Contracting
Government, or that public authority, as to:
(a) the types of proposals to which sub‑clause (1) shall
apply; and
(b) the criteria to be used in assessing those proposals
to which sub‑clause (1) applies.
(4) Despite sub‑clause (3), sub‑clauses
(1) and (2) apply to any proposal referred to in clause 23 of Schedule F.
50. Environmental
Assessment
The Authority must, in exercising its powers or functions,
or in implementing works or measures under this Agreement, examine and take
into account any possible effects which the exercise of those powers or
functions or those works or measures may have on water and other natural
resources within the Murray‑Darling Basin.
51. Protection
of Catchment of Hume Reservoir
(1) The State Contracting
Governments of New South Wales and Victoria must take effective measures to
protect the portions of the catchment of the Hume Reservoir within their
respective States from erosion.
(2) Each of those Contracting
Governments must, before the end of June in each year, forward a report to the
Authority on:
(a) the condition of the portion of the catchment of the
Hume Reservoir within its territory;
(b) the measures taken and work carried out during the
twelve months to the end of March immediately preceding; and
(c) particulars of the measures and works proposed for the
next twelve months.
(3) The Authority must, from
time to time, inspect or cause to be inspected such portions of the catchment
of the Hume Reservoir as it thinks fit and may indicate at any time whether in
its opinion the measures taken and works carried out are effective. If, on any
inspection, the Authority considers that any of those measures or works are
ineffective, it must notify the Contracting Government concerned which must, to
the extent that it may be practicable, take action to make those measures and
works effective.
(4) Measures, works and
action taken or carried out by a Contracting Government pursuant to sub‑clause
(1) or (3) shall be paid for by that Contracting Government.
(5) If at any time the
Authority considers that there is need for special action to protect the
catchment of the Hume Reservoir from erosion, other than, or in addition to,
the measures, works and action taken or carried out under sub‑clauses (1) and
(3), the Authority may, in consultation with the Committee, require the
Contracting Government, in whose territory the special action is to be carried
out, to investigate the position and to take such special action as may be
required by the Authority.
PART
VIII— CONSTRUCTION, OPERATION AND MAINTENANCE OF WORKS
52. Works
and Measures Subject to the Agreement
(1) Works or measures from
time to time included in a Schedule to this Agreement or authorised pursuant to
clause 56 must be constructed, operated, maintained or implemented (as the
case may require):
(a) in accordance with ‑
(i) the
provisions of this Agreement and any State MDB Act;
(ii) the
corporate plan; and
(iii) in
respect of works —
(A) the
asset management plan; and
(B) the
asset agreement that relates to those works,
unless determined otherwise by the Ministerial Council;
(b) by the Contracting Government from time to time
nominated under sub‑clause 56(5) for the purpose.
(2) A Contracting Government:
(a) described as a ‘Nominated Government’ in Schedule A with
respect to a work; or
(b) nominated under the former Agreement with respect to a
work,
is deemed to have been nominated
under paragraph (1)(b) to construct, operate, maintain and renew that
work, until the corporate plan nominates another Contracting Government for one
or more of those purposes, with respect to that work.
53. Asset
Management Plan
(1) The Authority must, as
soon as practicable after this Agreement comes into effect, prepare a draft
asset management plan.
(2) The draft asset
management plan must set out, for each work referred to in sub‑clause 52(1),
the way in which the work will be managed, maintained, repaired, renewed or
replaced.
(3) The Authority must
provide the draft asset management plan to the Committee.
(4) After considering the
draft asset management plan, the Committee must submit the draft plan and the
Committee’s advice in relation to it, to the Ministerial Council.
(5) After receiving the draft
plan and the advice of the Committee, the Ministerial Council may:
(a) approve the plan with or without amendment; or
(b) refer the plan back to the Authority for further
consideration.
(6) The Committee must monitor
the implementation of the asset management plan and may advise the Ministerial
Council or the Authority in respect of that plan as the Committee thinks fit.
(7) The Authority must review
the asset management plan annually.
(8) The Authority:
(a) may prepare a draft amendment to the asset management
plan as a consequence of the annual review or at any other time; and
(b) must prepare a draft amendment to the asset management
plan —
(i) in
respect of each new work authorised under clause 56; and
(ii) if
the Committee recommends an amendment to the plan.
(9) Sub‑clauses (3), (4) and
(5) apply to a draft amendment as if it were a draft asset management plan.
54. Control
and Management of RMO assets
(1) RMO assets are not under
the ownership or control of the Authority; however, the Authority manages the
assets in accordance with sub‑clause (3).
(2) RMO assets are controlled
jointly by the Commonwealth Government and the Governments of South Australia,
New South Wales and Victoria (“the asset controlling governments”) for the
purposes of this Agreement, in the manner described in the asset agreement.
(3) The asset controlling governments
agree that the Authority is to manage the RMO assets on behalf of the asset
controlling governments for the purposes of this Agreement, as required by
clause 29 of this Agreement.
(4) For the purposes of this
clause, the Authority must maintain books of account and records in relation to
the RMO assets that comply with applicable statutory requirements and are
consistent with standard accounting and auditing requirements.
(5) Without limiting sub‑clause
(4), books of account maintained by the Authority for the purposes of this
clause must:
(a) be maintained separately from the accounts required to
be kept by the Authority for the purposes of the Murray‑Darling Basin Special
Account;
(b) include an asset register and asset revaluations;
(c) be made available to an asset controlling government
upon request.
(6) The Authority must report
on the books of account in the manner and at the times specified in the asset
agreement.
(7) The books of account
maintained by the Authority for purposes of sub‑clause (4) will be audited by
the Australian National Audit Office or other such body as agreed from time to
time by the Ministerial Council.
55. Asset
Agreement
(1) The Authority must as
soon as practicable after this Agreement comes into effect make an asset agreement
with the asset controlling governments referred to in clause 54 regarding
the management by the Authority of the RMO assets, which is to reflect asset
controlling governments’ requirements for accounting for the assets, recording,
reporting and audit as well as specific high level requirements in relation to
construction, maintenance and operation of assets.
(2) The asset agreement must
include provisions about accounting for, reporting on and managing the RMO
assets.
(3) The asset agreement must not
be inconsistent with any provision of this Agreement.
(4) The asset agreement may
be reviewed and amended by agreement between the parties.
Note — The Authority may also enter an agreement or an
understanding with a Contracting Government or Constructing Authority in
relation to operating, maintaining and ensuring the required performance of an
asset.
56. Authorisation
of Further Works or Measures
(1) The Ministerial Council
and, subject to sub‑clause (3), the Authority, may, to promote the equitable, efficient
and sustainable use of the water and other natural resources of the Murray‑Darling
Basin, authorise:
(a) the construction of any works in addition to works set
out in Schedule A;
(b) the improvement of any works constructed under this
Agreement;
(c) the replacement of any works constructed under this
Agreement;
(d) work to remedy the extraordinary failure of part or
all of any work constructed under this Agreement; and
(e) the implementation of any measures.
(2) Unless the Ministerial
Council decides that a work or measure is required to address an emergency, a
work or measure authorised by the Ministerial Council is authorised by a
corporate plan that includes such a work or measure.
(3) The Authority may
authorise the execution of any work or the implementation of any measure
pursuant to this clause which is estimated to cost not more than $2,000,000 or
such other amount determined by the Ministerial Council from time to time.
(4) All provisions of this
Agreement apply mutatis mutandis to any work or measure approved under this
clause.
(5) When any
work or measure is authorised pursuant to this clause the Ministerial Council,
the Authority or the corporate plan, as the case may be, must nominate which of
the Contracting Governments shall be responsible for:
(a) the construction, operation and maintenance of such
work; or
(b) the implementation of such measure,
in whole or in part.
(6) The Ministerial Council
may:
(a) resolve to include any works or measures authorised
pursuant to sub‑clause (1) in a Schedule to the Agreement; and
(b) approve any Schedule prepared or amended pursuant to paragraph (a).
(7) When a Schedule is
approved by the Ministerial Council under paragraph (6)(b) it:
(a) becomes part of the Agreement; and
(b) takes effect as provided for in sub‑clause 5(2).
57. Ancillary,
Preventative and Remedial Works
On the application of a Committee member and subject to
the corporate plan, the Authority may meet, or contribute to the costs of, or
associated with:
(a) the construction, operation or maintenance of‑
(i) any
works of a Contracting Government ancillary to the works constructed pursuant
to this Agreement or the former Agreement; and
(ii) any
preventative or remedial works of a Contracting Government necessitated by, or
arising from, the construction or operation of works constructed pursuant to
this Agreement or the former Agreement;
(b) the acquisition by a Contracting Government of any
interest in land necessary for the construction, operation or maintenance of
those ancillary, preventative or remedial works, or for the provision of flood
easements; and
(c) remedying any actual or anticipated damage or injury
occasioned by the construction, operation or maintenance of any works provided
for in this Agreement or the former Agreement.
58. Preparation
and Submission of Designs etc of Works for Authority Approval.
(1) A Contracting Government
nominated to construct a work pursuant to this Agreement must submit a general
scheme of the work to the Authority for its approval.
(2) Before beginning to
construct that work, the Contracting Government must submit designs,
specifications and estimates of the work to the Authority for its approval.
(3) The Authority may approve
the general scheme, designs, specifications or estimates with or without
alterations or additions, or may, from time to time, refer any of them for
amendment to the Contracting Government submitting them.
(4) The Contracting
Government must carry out an authorised work in accordance with:
(a) the designs and specifications approved by the
Authority; and
(b) any directions given by the Authority pursuant to
clause 61.
59. Submission
of Details of Measures for Authority Approval
(1) A Contracting Government
nominated to implement any measure pursuant to this Agreement:
(a) must submit ‑
(i) a
general description of the measure and of the method of implementing it; and
(ii) the
estimated cost of implementing the measure,
to the Authority for its approval; and
(b) must submit proposed arrangements for sharing the
costs of implementing the measure among the Contracting Governments to the
Authority for the Authority to consider in the preparation of a recommendation
to the Ministerial Council for the purposes of clause 72.
(2) The Contracting
Government must implement an authorised measure in accordance with:
(a) those matters approved by the Authority under sub‑clause
(1);
(b) any directions given by the Authority pursuant to
clause 61.
60. Authority
Approval of Certain Tenders
(1) All works constructed under
this Agreement for an amount exceeding $2,000,000 or such other higher amount
determined by the Authority from time to time, must be let by tender.
(2) A Constructing Authority
must obtain the approval of the Authority before accepting any tender relating
to this Agreement for any amount exceeding $2,000,000 or such other amount
determined by the Authority from time to time.
(3) If the concept or design
of any work or measure or any changes thereto cause the total estimated cost of
the work or measure to rise by more than 10% of the amount of the accepted
tender, the Authority must:
(a) immediately notify the Ministerial Council; and
(b) if the Ministerial Council does not agree that the
work or measure should proceed within one month of being notified of the
increased estimated cost, direct the Constructing Authority to suspend further
action on that work or measure.
61. Directions
for the Efficient Construction etc of Works
(1) The
Authority may give directions, as required to give effect to the corporate plan
and asset management plan, or to give effect to a decision of the Ministerial
Council under sub‑clause 29(3), to ensure:
(a) the efficient construction, operation, maintenance and
required performance of any work; and
(b) the efficient implementation of any measures,
authorised
pursuant to this or the former Agreement.
(2) A Constructing Authority
must give effect to any directions given to it by the Authority under sub‑clause
(1).
(3) The Authority may direct:
(a) if necessary, what shall be regarded as:
(i) investigations,
construction and administration; or
(ii) major
or cyclic maintenance; or
(iii) operation
and maintenance,
for the purpose
of clause 71; and
(b) the doing of such acts or things as it considers
necessary to ensure that the provisions of this Part are observed.
(4) In exercising its power
under paragraph (3)(a), the Authority must not direct that any of the
following description of work shall be regarded as operation and maintenance:
(a) the execution of any improvement to the design or
function of any existing work;
(b) the replacement of the whole of any existing work;
(c) work to remedy the extraordinary failure of part or
all of any existing work.
62. States
to Facilitate Construction and Operation Within Their Territories
A State Contracting Government must grant all powers,
licences or permissions with respect to its territory as may be necessary for:
(a) the construction, operation or maintenance of any
works;
(b) the implementation of any measures; or
(c) the carrying out of any operation,
required to be undertaken by any other Contracting
Government or a public authority pursuant to this Agreement.
63. Works
for Benefit of State Contracting Governments
(1) Any State Contracting
Government which, either alone or jointly with another Contracting Government,
proposes to carry out any work not provided for by this Agreement within the
banks of the River Murray in South Australia or the upper River Murray, must
submit particulars of the proposal, including plans of the proposed work, to
the Authority.
(2) Sub‑clause (1) does not
apply to the Great Darling Anabranch.
(3) The Authority may approve
the plans of the proposed work with or without alteration.
(4) The Authority may from
time to time stipulate conditions for the operation of any work constructed
under this clause which:
(a) provides for the storage of water; or
(b) will affect the flow, use, control or quality of the
water of the River Murray,
in so far as
that operation may affect regulation of the flow or the quality of the water.
(5) The cost of
constructing, operating and maintaining works proposed pursuant to this clause
must be borne by:
(a) the State Contracting Government proposing the work;
or
(b) the Contracting Governments jointly proposing the work
in such proportion as may be agreed between those Contracting Governments.
(6) A State Contracting Government
must operate any work carried out pursuant to this clause in such manner as the
Authority may require from time to time.
64. Declaration
that Works or Measures are Effective
At any time after construction of any work or
implementation of any measure authorised pursuant to sub‑clause 56(1) has
commenced, the Authority may declare that work or measure to be effective for
the purposes of this Agreement.
65. Maintenance
of Works
A Contracting Government nominated to construct a work
pursuant to paragraph 52(1)(b) must maintain it and keep it effective for its
original purpose, unless it has been declared ineffective pursuant to clause 70.
66. Procedures
for Operation of Works
The Authority may, from time to time, determine procedures
for the operation of works constructed or measures implemented pursuant to this
or the former Agreement.
67. Dredging
and Snagging
(1) The Authority may, to the
extent provided for in the corporate plan or in an emergency, from time
to time direct that the River Murray upstream of any weir constructed pursuant
to this or the former Agreement be dredged or snagged for such distance as the
Authority may determine.
(2) The distance determined
pursuant to sub‑clause (1) must not exceed the distance to which the
navigability of the River Murray is affected by the weir.
(3) The Contracting Government which
constructed the weir must carry out the Authority’s direction and meet the cost
involved, unless the corporate plan provides that the Authority will meet the
whole or part of the cost.
68. Operation
of Works
(1) The Contracting
Government nominated to operate a work pursuant to paragraph 52(1)(b) must:
(a) operate it in accordance with any procedures
determined by the Authority under clause 66;
(b) if the work is a lock, maintain immediately downstream
of the lock such depth of water ‑
(i) as is
sufficient for navigation of vessels drawing 1.4 metres of water; or
(ii) such
other depth determined by the Authority under clause 124,
except when the lock is closed for maintenance or when there
is an emergency.
(2) Paragraph (1)(b)
does not apply to Weir and Lock No.26 Torrumbarry nor to Weir and Lock No.15
Euston.
69. Performance
of Joint Duties
Where Contracting Governments are jointly under a duty to
operate or maintain any works or implement any measures or to carry out any
operation, any questions as to which Government is to perform that duty or carry
out that operation shall be resolved:
(a) by mutual agreement; or
(b) if agreement is not possible, by the Authority.
70. Ineffective
Works
(1) The Authority may at any
time and in accordance with the asset management plan, or in an emergency, declare
ineffective the whole or part of any work or measure which is subject to this
or the former Agreement.
(2) The Authority may require
that the whole or any part of any work declared to be ineffective be
dismantled.
PART
IX— FINANCE
71. Definitions
In this Part:
“annuity contribution” has the meaning set out in
sub‑clause 73(1);
“investigations, construction and administration costs”
means the costs of:
(a) investigating and constructing works set out in
Schedule A; and
(b) investigating and constructing any other works and
implementing measures authorised under this Agreement; and
(c) studies, programs, surveys and investigations carried
out pursuant to clause 43; and
(d) establishing systems referred to in clause 45;
and
(e) systems established pursuant to a request made under
paragraph 47(b); and
(f) special action taken under sub‑clause 51(5) which
the Authority has determined to be investigations, construction and
administration costs; and
(g) any payment by the Authority in respect of the
construction of works under clause 57; and
(h) complying with the direction given under sub‑clause 60(3);
and
(i) dismantling works referred to in sub‑clause 70(2);
and
(j) any payment by the Authority under paragraph 138(a);
and
(k) administrative and other expenses of the Committee,
Basin Community Committee, Authority and the Ministerial Council in respect of
their functions, powers and duties;
“major or cyclic maintenance” has a meaning
determined by reference to the guidelines established by the Authority under
sub‑clause 73(3);
“operation and maintenance costs” means the costs
of:
(a) operating and maintaining works set out in Schedule A;
and
(b) operating and maintaining any other works authorised
under this Agreement; and
(c) operating and maintaining systems referred to in
clause 45; and
(d) operating and maintaining systems established pursuant
to a request made under paragraph 47(b); and
(e) special action taken under sub‑clause 51(5) which
the Authority has determined to be operation and maintenance costs; and
(f) any payment made by the Authority in respect of the
operation or maintenance of works under clause 57; and
(g) such dredging or snagging carried out under clause 67
which the corporate plan provides will be met by the Authority; and
(h) any payment made by the Authority under paragraph
138(b).
72. Apportionment
of Costs
(1) The Ministerial Council,
after considering any recommendation of the Authority, must determine:
(a) what contribution, if any, is to be made by Queensland
or the Australian Capital Territory, or both; and
(b) whether some or all of that contribution is to be made
as a lump sum or in a comparable manner to a manner provided for in sub‑clause
(3) or (4) or sub‑clause 73(1).
(2) Subject to sub‑clause
(1), the Ministerial Council:
(a) may, on the recommendation of the Authority, from time
to time determine which proportion of the services provided by river operations
is attributable to each State Contracting Government; and
(b) must, at intervals not exceeding five years,
reconsider the proportions determined under paragraph (2)(a); and
(c) may, on the recommendation of the Authority, alter the
proportions determined under paragraph (2)(a).
(3) Unless the Ministerial
Council decides otherwise and subject to any decision of the Ministerial
Council under sub‑clause (1), a State Contracting Government must contribute to
operation and maintenance costs in the relevant proportion determined under sub‑clause
(2).
(4) Unless the Ministerial
Council decides otherwise and subject to any decision by the Ministerial
Council under sub‑clause (1) and the provisions of clause 73:
(a) the Commonwealth Government must contribute one‑quarter
of all investigations, construction and administration costs after first
deducting any contribution to those costs made by:
(i) Queensland
and the Australian Capital Territory; or
(ii) any
State pursuant to any understanding reached between that State and the
Contracting Governments; and
(b) the State Contracting Governments must together
contribute three‑quarters of all investigations, construction and
administration costs:
(i) relating
to river operations, in the relevant proportions determined under sub‑clause
(2); and
(ii) relating
to measures implemented under this Agreement, in equal shares.
(5) The Ministerial Council,
after considering any recommendation by the Authority, must determine whether
the costs of any special action taken under sub‑clause 51(5) are
investigations, construction and administration costs or operation and
maintenance costs.
73. Annuity
Contributions
(1) The Ministerial Council,
on the recommendation of the Authority, may from time to time determine that a
Contracting Government must make an annual annuity contribution in respect of
either or both of:
(a) investigations, construction and administration costs;
and
(b) major or cyclic maintenance costs,
which the Contracting
Government might otherwise be required to contribute under sub‑clause 72(1),
(3), paragraph 72(4)(a) or sub‑paragraph 72(4)(b)(i), in any future year.
(2) In fixing any annuity
contribution under sub‑clause (1), the Ministerial Council must have regard to
the Authority’s estimate of costs which will be incurred during the next
ensuing 30 years (or such other period as the Authority determines), as
provided in the asset management plan, in relation to either or both of:
(a) the construction or renewal; and
(b) major or cyclic maintenance,
of works constructed,
operated, maintained or renewed for the purposes of river operations (as the
case requires) including any interest or other sums receivable or payable in
respect of any income received, by the Authority from time to time in relation
to those works.
(3) For the purposes of this
Part, the Authority must establish guidelines for determining what is, and what
is not, major or cyclic maintenance.
74. Annual
and forward estimates
(1) The Authority must
prepare:
(a) detailed annual estimates of its known and anticipated
expenditure for the next financial year; and
(b) forward estimates of its known and anticipated
expenditure for the three successive financial years following the next
financial year.
(2) Annual and forward
estimates must:
(a) show the estimated amount to be contributed by each
Contracting Government; and
(b) be sent to each Contracting Government as soon as practicable
in each year; and
(c) be included in the corporate plan for approval by the
Ministerial Council.
(3) Annual and forward
estimates may be amended by amendments to the corporate plan as provided in
clause 35.
Note — the Contracting Governments note their agreement of
May 2006 to at least maintain their 2006‑07 contributions to the Murray‑Darling
Basin Commission in real terms for the four years to 2010‑2011. The
Contracting Governments recommit to that agreement for the purpose of making
their funding contributions to the Authority to the end of 2010‑2011, for the
functions the Authority performs that were previously performed by the Murray‑Darling
Basin Commission.
75. Payments
by Contracting Governments
Each Contracting Government
must pay any amount payable by it under clause 72 or 73 as and when
required by the Authority.
76. Authority
to Account
(1) All moneys received by
the Authority from the Contracting Governments under this Agreement must be
credited to the Murray‑Darling Basin Special Account.
(2) The Authority must
account to the Ministerial Council and each Contracting Government for all
moneys received from the Contracting Governments under this Agreement.
77. Application
of Moneys by Authority
(1) Subject to sub‑clause
(3), the Authority must apply money paid by the Contracting Governments in
accordance with the relevant estimates referred to in paragraph 74(1)(a), the
corporate plan and the other provisions of this Agreement.
(2) In any financial year,
the Authority may:
(a) spend any anticipated savings on an item in the
estimates prepared or revised under paragraph 74(1)(a) on any item which it
anticipates will be overspent;
(b) advance sums to any Constructing Authority, public
authority or person for expenditure in accordance with those estimates in that,
or any subsequent financial year;
(c) advance working capital to a Constructing Authority
and replenish amounts expended from that advance from time to time.
(3) The Authority may
accumulate:
(a) any sums received under sub‑clause 72(3) or (4)
for the purposes of river operations, but not expended in any year; and
(b) any annuity contributions received under clause 73,
for use
in subsequent years.
(4) Any sum referred to in
sub‑clause (3) and any interest thereon must:
(a) in the case of sums received under sub‑clause 72(3),
only be expended on operation and maintenance costs; and
(b) in the case of sums received under sub‑clause 72(4),
only be expended on investigations, construction and administration costs; and
(c) in the case of annuity contributions received under
clause 73:
(i) from
a State Contracting Government, only be expended on either:
(A) investigations,
construction and administration costs; or
(B) major
or cyclic maintenance costs,
of river operations, as the case requires; or
(ii) from
the Commonwealth, only be expended on investigations, construction and
administration costs of river operations.
78. Payments
by Authority to Constructing Authorities
(1) The Authority must each
year, and in accordance with the estimates referred to in paragraph 74(1)(a) and the corporate
plan, pay to any
Constructing Authority required by this Agreement:
(a) to construct, operate or maintain any works;
(b) to carry on any operation;
(c) to implement any measures,
an
amount sufficient to defray either ‑
(d) the whole cost; or
(e) in the case of the cost
referred to in paragraph 138(b), three quarters of the cost,
to be incurred by the
Constructing Authority for those purposes in that year.
(2) The Authority must make
the payments required under sub‑clause (1) at such times and in such manner as
is agreed between the Authority and the Constructing Authority.
(3) The Authority must not
make any payment relating to the construction of any works or implementation of
any measures referred to in sub‑clause 56(1) until construction or
implementation has been authorised in accordance with that sub‑clause.
79. Contracting
Governments to Account
Each Contracting Government and any public authority must
account to the Authority for all moneys received from the Authority under this
Agreement.
80. Unexpended
Balances
(1) Any unexpended balance of moneys paid to the
Authority by Contracting Governments must only be expended under this Agreement
in accordance with the corporate plan.
(2) The Authority must notify
Contracting Governments of any unexpended balances of moneys referred to in sub‑clause
(1) held by it at
the end of any financial year.
81. List
of Assets
(1) Except as provided in sub‑clause
(2) the Authority must keep a list of assets acquired by:
(a) the Authority;
(b) a Constructing Authority with funds provided by the
Authority.
(2) The Authority need not
keep a list of assets referred to in paragraph (1)(b) if it is satisfied
that:
(a) proper records of those assets are kept by the
Constructing Authority; and
(b) copies of those records will be provided to the
Authority at its request.
82. Disposal
of Surplus Assets
(1) The Authority may, with
the approval of the Committee, direct when and how surplus assets acquired by a
Constructing Authority with funds provided by the Authority, shall be disposed
of.
(2) Subject to sub‑clause
(3), the Committee must determine how proceeds from the disposal of surplus
assets are:
(a) to be paid to the Authority and credited against
future capital and renewal contributions by; or
(b) to be distributed among,
the Contracting
Governments, having regard to the contributions made by each Contracting
Government to the acquisition of those assets.
(3) A determination under sub‑clause
(2) that relates to RMO assets must be consistent with the asset agreement.
83. Revenue
(1) Any money received by a
Contracting Government or a public authority from the use of works subject to
this Agreement must be paid to the Authority.
(2) The Authority may provide
and charge for goods and services incidental to its functions which are not
otherwise provided for in this Agreement.
(3) Money paid
to the Authority under this clause must either:
(a) be expended on investigations, construction and
administration costs; or
(b) applied in accordance with sub‑clause 80(1).
84. Compensation
for Damage by Works
The Contracting Governments must meet, in equal shares,
any compensation for damage paid by a Constructing Authority pursuant to the
Water Act or a State MDB Act:
(a) caused or arising from anything done by it in
constructing, operating or maintaining any works or executing any measures
provided for in this Agreement; and
(b) which has not been met or contributed to by the
Authority under paragraph 57(c).
PART
X— REPORTS
85. Preparation
of Reports
As soon as practicable after the end of each financial
year, the Chief Executive must prepare and give to the Ministerial Council a
report as required under section 214 of the Water Act, which will include a
report on the Authority’s proceedings and activities during that year.
PART
XI— PROCEEDINGS IN DEFAULT
86. Failure
to Perform Works or Contribute Cost
(1) The Authority must
immediately notify the Committee, the Ministerial Council and each other
Contracting Government if any Contracting Government fails, after being so
required by the Authority to:
(a) do anything in relation to any works or measures; or
(b) pay any money to the Authority,
which it is obliged to
do or pay under this Agreement.
(2) The Authority may, in
consultation with the Committee, authorise one or more of the Contracting
Governments which is not in default wholly or partly to make good any failure
which relates to:
(a) the construction, operation or maintenance of any
works;
(b) the carrying on of any operation; and
(c) the implementation of any measures.
(3) A Contracting Government
authorised by the Authority under sub‑clause (2):
(a) may enter the territory of the defaulting Contracting
Government to do whatever it has been authorised to do by the Authority;
(b) shall be deemed to have all powers, licences and
permissions as are required from the defaulting Contracting Government to do
whatever it has been authorised to do by the Authority;
(c) shall be deemed to have all the rights and powers of a
Constructing Authority, including the right to receive any payment due under
clause 78, in respect of whatever it has been authorised to do by the
Authority; and
(d) may, in a court of competent jurisdiction, recover, as
a debt due from the defaulting Contracting Government, all money reasonably
expended by it in doing whatever it has been authorised to do by the Authority
and which has not been paid to it by the Authority by virtue of the right
conferred by paragraph (3)(c), together with interest at the prescribed
rate.
(4) A defaulting
Contracting Government shall once more be deemed to be the Constructing
Authority when:
(a) any failure referred to in paragraph (1)(a) has
been made good; and
(b) it has paid all money payable by it under paragraph (3)(d).
(5) Unless the Authority, in
consultation with the Committee, decides otherwise in any particular case, a
Contracting Government which fails to pay money due under clause 75 to the
Authority by the due date is liable to pay interest on any outstanding balance
at the prescribed rate.
(6) Any other Contracting
Government:
(a) may pay the outstanding balance owed by a Contracting
Government under clause 75, together with interest at the prescribed rate;
and
(b) may recover the amount so paid in a court of competent
jurisdiction as a debt due from the defaulting Contracting Government.
(7) Any interest payable
under this clause shall be calculated from the due date to the date of actual
payment.
PART
XII — DISTRIBUTION OF WATERS
Note
— clause 29 requires the Authority to act in accordance with clause 30
(objectives and outcomes set by the Committee, and determinations made by the
Committee) when exercising its functions in relation to river operations.
DIVISION 1 — TIER 1 DISTRIBUTION OF WATERS
SUBDIVISION A — APPLICATION OF DIVISION 1
87. Application
of Division 1
This Division applies subject to:
(a) the provisions of Divisions 2 and 3 of this Part;
and
(b) the provisions of Subdivision F of this Division.
SUBDIVISION B — STATE ENTITLEMENTS TO WATER
88. South
Australia’s Monthly Entitlement
South Australia is entitled to receive:
(a) the following monthly quantities of River Murray water
‑
July.................................................... 50
500 megalitres
August................................................ 66
000 megalitres
September.......................................... 77
000 megalitres
October............................................ 112
500 megalitres
November........................................ 122
000 megalitres
December......................................... 159
000 megalitres
January............................................ 159
000 megalitres
February........................................... 136
000 megalitres
March............................................... 128
000 megalitres
April................................................... 77
000 megalitres
May.................................................... 35
000 megalitres
June................................................... 32
000 megalitres
except as
provided in clause 128; and
(b) 58,000 megalitres per month for dilution and losses,
unless the Ministerial Council determines otherwise; and
(c) such additional quantities for dilution as the
Ministerial Council determines from time to time.
89. Measurement
of South Australia’s Entitlement
(1) Each month South
Australia is deemed to receive the sum of the water flowing in that month in:
(a) the River Murray between the confluences of the Rufus
and Lindsay Rivers with the River Murray; and
(b) the Lindsay River near its confluence with the River
Murray.
(2) The Authority must
determine the flows referred to in sub‑clause (1) in such manner as it sees
fit.
90. Variation
of South Australia’s Entitlements
The Authority may from time to time, at the request of the
Committee member for South Australia, vary for a specified sequence of months
any of the monthly quantities which that State is entitled to receive under
clause 88 without increasing the total of those quantities for that
sequence.
91. South
Australia’s Storage Right
(1) South Australia may store
any part of its entitlement under clause 88 (as adjusted for interstate
trade) for the purposes of meeting critical human water needs in the
upper River Murray storage or storages of its choice, beyond the time at which
that part of its entitlement would otherwise have been delivered under this
Agreement, provided such storage does not affect water availability for New
South Wales or Victoria that would otherwise have existed under this Agreement
had it not been for the exercise by South Australia of its right under this
clause.
(2) South Australia may store
any part of its entitlement under clause 88 (as adjusted for interstate
trade) for the purpose of private carry‑over in the upper River Murray
storage or storages of its choice, beyond the time at which that part of its
entitlement would otherwise have been delivered under this Agreement, provided
such storage does not affect water availability or storage access for New South
Wales or Victoria that would otherwise have existed under this Agreement had it
not been for the exercise by South Australia of its right under this clause.
(3) During the period before
a Schedule is made under Subdivision F of Division 1 of this Part, the
Authority is to account for water stored pursuant to this clause, as far as
possible, consistently with Subdivisions D and E of this Division.
92. Use
of Lake Victoria
If the Authority decides that the flow or prospective flow
of the River Murray downstream of its junction with the Great Darling Anabranch
is, or will be for any month in excess of the sum of:
(a) the quantities which South Australia is entitled to
receive in that month under clause 88 or 90;
(b) any quantities which, in the opinion of the Authority,
ought to be and can be impounded in Lake Victoria during that month with the
object of filling that storage at some time before the end of the next ensuing
month of May; and
(c) any quantities required for use by New South Wales and
Victoria, downstream of the junction of the River Murray and the Great Darling
Anabranch,
South Australia may receive that excess in addition to the
quantity of water which it is entitled to receive under clause 88 or 90.
93. Surplus
Flow to South Australia
The quantity of water that South Australia is entitled to
receive in any month shall not be reduced if it has received a greater quantity
than it was entitled to receive under clause 88 or 90 in any previous
month.
94. Entitlements
of New South Wales and Victoria
(1) Except as otherwise expressly
provided in Subdivision D of this Division and subject to South Australia’s
entitlement under clause 88 or 90, New South Wales and Victoria are each
entitled to use:
(a) all the water in tributaries of the upper River Murray
downstream of Doctors Point within its territory, before it reaches the River
Murray;
(b) half the natural flow at Doctors Point;
(c) half the water entering the Menindee Lakes from the
Darling River, subject to the prior entitlement of New South Wales to use water
from the Menindee Lakes Storage as provided in clause 95;
(d) subject to paragraph (1)(c), an amount of water
from the upper River Murray equivalent to any water contributed by any
tributary or any outfall approved by the Ministerial Council entering the upper
River Murray from its territory downstream of Doctors Point; and
(e) half the volume of water calculated in accordance with
clause 8 of Schedule F.
(2) Entitlements under sub‑clause
(1) shall not be affected by the declaration of a period of special accounting
except as specifically provided in Subdivision E of this Division.
95. New
South Wales’ Entitlement to Water from Menindee Lakes
(1) Whenever water in the
Menindee Lakes Storage falls below 480 000 megalitres, New South Wales may use
the stored water as it requires until the volume next exceeds 640 000
megalitres.
(2) Whenever sub‑clause (1)
does not apply, New South Wales may:
(a) divert from ‑
(i) the
Menindee Lakes Storage; or
(ii) the
Darling River below the Menindee Lakes Storage; or
(iii) the
River Murray, below its junction with the Darling River; or
(b) release from the Cawndilla outlet regulator,
a total of up to
100,000 megalitres in any 12 month period commencing on 1 April.
(3) Whenever the Ministerial
Council determines that:
(a) releases from the Menindee Lakes Storage exceed the
water required for storage in Lake Victoria and to supply South Australia’s
entitlement; or
(b) water in the Menindee Lakes Storage exceeds 1 680 000
megalitres and the amount of the excess plus the estimated water currently in
the River Murray and Darling River below the Menindee Lakes Storage is
sufficient to supply South Australia’s entitlement and to fill Lake Victoria,
any of that water used
by New South Wales or released to provide for the retention of floodwaters
shall not be deemed to be part of its entitlement under sub‑clause (2).
96. New
South Wales’ and Victoria’s Supply to South Australia
New South Wales and Victoria must provide, in equal
proportions, South Australia’s entitlement under clause 88 or 90 from the
water available to them under clauses 94 and 95.
97. Limitations
on Use by New South Wales and Victoria
Unless the Ministerial Council determines otherwise, New
South Wales or Victoria must not use water from the upper River Murray to an
extent which may result in less than half the minimum reserve determined under
clause 103 being held in upper River Murray storages and allocated to that
State at the end of the following May.
SUBDIVISION C — CONTROL BY AUTHORITY
98. Authority’s
Role in Operation of Storages
(1) The Authority may give
directions for the release of water from upper River Murray storages and water
must be released in accordance with any such directions.
(2) The Authority may give
directions under sub‑clause (1) in the form of standing procedures, which it
may amend or suspend at any time, except as provided in clause 100.
(3) In giving directions
under this clause the Authority must have regard to ‑
(i) maintaining supply to South Australia of the
quantities of water which that State is entitled to receive;
(ii) facilitating the exercise by South Australia of its
right under clause 91, including the delivery of water stored in exercise
of that right;
(iii) maintaining a minimum reserve of water as provided
for in clause 103; and
(iv) facilitating the exercise by New South Wales and
Victoria of their respective rights to use water from the upper River Murray,
as they require.
(4) In giving directions
under this clause the Authority may also have regard to ‑
(i) the improvement or maintenance of water quality in
the River Murray (including the upper River Murray); and
(ii) other water management and environmental objectives
consistent with this Agreement.
99. Limitation
on Menindee Lakes Operation
(1) The Authority must not
direct that water be released from Menindee Lakes Storage after its volume
falls below 480,000 megalitres and before it next exceeds 640,000 megalitres.
(2) Subject to sub‑clause (1), the
Committee may, by majority vote, require the Authority to direct that water be
released from Menindee Lakes Storage.
100. Procedures
for Dartmouth Dam Operation
The Authority must not amend or, except in an emergency,
suspend any standing procedures affecting the release of water through the
power station of Dartmouth Reservoir without first consulting the operator of
the power station and the Constructing Authority for Victoria.
101. Water
Estimated to be Under the Control of the Authority
“Water estimated to be under the control of the Authority”
means the aggregate of:
(a) water stored in the Hume and Dartmouth Reservoirs
above their minimum operating levels;
(b) water stored in Lake Victoria above its minimum
operating level;
(c) water available for release from the Menindee Lakes
Storage at the direction of the Authority in accordance with clause 99,
after allowing for New South Wales’ prior entitlements under clause 95;
(d) the estimated natural flow of the River Murray at
Doctors Point before the end of the following May;
(e) water calculated in accordance with clause 9 of
Schedule F;
(f) the difference between the estimated amount of water
in transit in the upper River Murray and the estimated amount of water in
transit at the end of the following May.
102. Available
Water
From time to time the Authority must:
(a) determine the minimum amount of water estimated to be
under the control of the Authority;
(b) determine the allowance to be made until the end of
the following May for ‑
(i) losses
by evaporation and other means in the upper River Murray; and
(ii) the
entitlements of South Australia under paragraphs 88(b) and 88(c);
(c) having regard to its determinations under paragraphs
102(a) and 102(b) determine the water available ‑
(i) for
distribution to New South Wales, Victoria and South Australia before the end of
the following May; and
(ii) for
holding in reserve at the end of the following May.
103. Minimum
Reserve
(1) From time to time the
Authority must determine, in accordance with the formula set out in sub‑clauses
(2) and (3), the minimum reserve to be held at the end of the following May.
(2) Unless the Ministerial
Council determines otherwise, the minimum reserve shall be the lesser of:
(a) One third of the water available determined under
paragraph 102(c)
less
The sum of the monthly entitlements of South Australia under
paragraph 88(a) up to the end of the following May
plus
The sum of any imbalance of use during a period of special
accounting calculated under clause 126; and
(b) 835,000 megalitres.
(3) If the minimum reserve
determined under paragraph (2)(a) is less than zero, then the minimum
reserve shall be deemed to be zero.
(4) Unless the Ministerial
Council determines otherwise, the first 250,000 megalitres of any minimum
reserve shall be held in Lake Victoria.
(5) When considering:
(a) whether to make a determination under either of sub‑clauses
(2) or (4); and
(b) the substance of any determination under either of sub‑clauses
(2) or (4),
the Ministerial Council:
(c) must have regard to the provisions of the Basin Plan,
and in particular, to such of those provisions that are required by Part 2A
of the Water Act;
(d) before the Basin Plan first takes effect, must take
into account the requirements for conveyance water and seek the advice of the
Authority in relation to those requirements.
104. Use
of State Works to Convey Murray Water
The Authority may arrange for water to be conveyed from
one part of the upper River Murray to another via works under the control of a
State Contracting Government, on such terms as may be agreed between the
Authority and that State Contracting Government.
SUBDIVISION D — WATER ACCOUNTING
105. General
The following provisions give effect to the principles set
out in the preceding Subdivisions of this Division.
106. Allocation
of Water to New South Wales and Victoria
(1) In respect of any period:
(a) the natural flow of the River Murray at Doctors Point;
and
(b) the volume of water calculated in accordance with
clause 10 of Schedule F,
must be
allocated between New South Wales and Victoria as provided in sub‑clause (2).
(2) The quantity of water
estimated for any month in accordance with sub‑clause (1) shall be allocated as
follows:
(a) for any of the months from May through to August
inclusive, the whole quantity shall be allocated half each to New South Wales
and Victoria; and
(b) for any of the months from September through to April
inclusive ‑
(i) whenever
Victoria is subject to a period of special accounting, the first 12,900
megalitres per month (being equivalent to the ceding by Victoria to New South
Wales of a volume of 6,450 megalitres per month); and
(ii) at
any other time, the first 16,700 megalitres per month (being equivalent to the
ceding by Victoria to New South Wales of a volume of 8,350 megalitres per
month),
shall be allocated to New South Wales, and the remainder shall
be allocated half each to New South Wales and Victoria.
107. Allocation
of Water in Menindee Lake Storage
(1) Half the water entering
the Menindee Lakes Storage from the Darling River is allocated to New South
Wales and half to Victoria.
(2) Of the water allocated to
Victoria and stored in the Menindee Lakes Storage, Victoria must cede 4,170
megalitres each month to New South Wales.
108. Tributary
Inflows
(1) The quantity of water
which in any period enters the upper River Murray downstream of Doctors Point
from a tributary, or from any artificial outfall approved by the Ministerial
Council for the purposes of this clause, other than quantities referred to in
clause 107, is allocated to the State from which the water enters the
upper River Murray.
(2) The volume of water
calculated in accordance with sub‑clause 11(1) of Schedule F is allocated
to New South Wales.
(3) The volume of water
calculated in accordance with sub‑clause 11(2) of Schedule F is allocated
to Victoria.
109. Use
by New South Wales and Victoria of Allocated Water
New South Wales and Victoria are respectively deemed to
use the quantity of water:
(a) diverted from the upper River Murray by an offtake
under the jurisdiction of that State, unless the Ministerial Council determines
otherwise; and
(b) calculated under sub‑clause 12(1) of Schedule F,
in the case of New South Wales; and
(c) calculated under sub‑clause 12(2) of Schedule F,
in the case of Victoria.
110. Losses
(1) Any water which is lost
by evaporation or other means from the upper River Murray is deemed to have
been used by New South Wales or Victoria.
(2) Unless otherwise
determined by the Ministerial Council:
(a) losses attributable to evaporation from a major
storage will be deemed to have been used in proportion to the quantities of
water allocated to New South Wales or Victoria in that storage;
(b) losses attributable to an unregulated flow in any part
of the upper River Murray will be deemed to have been used in proportion to the
flow allocated to New South Wales or Victoria in that part of the river;
(c) all other losses will be deemed to have been used half
each by New South Wales and Victoria.
(3) For the purposes of this
clause an “unregulated flow” means a flow which has not been planned by the
Authority.
111. New
South Wales’ and Victoria’s Supply to South Australia
For the purposes of this Subdivision any water supplied in
any month to South Australia which it is entitled to receive under clause 88
or 90 is deemed to be supplied half each by New South Wales and Victoria and
the Authority must make appropriate adjustments to allocations between New
South Wales and Victoria of water in the upper River Murray so as to give
effect to those States’ obligations under clause 96.
112. Commencement
of Continuous Accounting of Carryover of Stored Water
Half the water in each major storage on 1 December
1989 is deemed to have been allocated to New South Wales and half to Victoria.
113. Reallocation
of Water Between New South Wales and Victoria
(1) By agreement between New
South Wales and Victoria, any quantity of water allocated to one of those States
and in store in any of the upper River Murray storages or in transit in a
specified part of the upper River Murray, may be exchanged for a quantity of
water allocated to the other State and in store in another of the upper River
Murray storages or in transit in another specified part of the upper River
Murray, if such an exchange of water does not prejudice the entitlement of
South Australia.
(2) The Authority may at any
time, with the consent of either New South Wales or Victoria, determine that
certain quantities of water in transit in the upper River Murray are surplus to
the requirements of that State and reallocate the whole or part of such
quantities from that State to the other State.
114. Efficient
Regulation of the River Murray
Any water used by either New South Wales or Victoria or
supplied to South Australia by either of those States is deemed to be provided
from water allocated to that State and the Authority may, as necessary to
ensure the availability of appropriately allocated water at the place of such
use or supply, reallocate quantities of water in the upper River Murray but
must not thereby alter the total quantities of water allocated to New South
Wales or Victoria respectively, in the upper River Murray.
115. Accounting
Procedures
Subject to clauses 112, 113, 114, 116 and 121, the
quantity of water in any part of the upper River Murray and which is allocated
to either New South Wales or Victoria is deemed:
(a) to increase in any period by the quantity of water
allocated to that State flowing into that part in that period; and
(b) to decrease in any period by any quantities of water ‑
(i) used
by that State by way of diversion or loss from that part in that period; or
(ii) passed
from that part in that period for ‑
• downstream use by that State,
• supply by that State to South
Australia,
• conveyance to another part of
the upper River Murray as water allocated to that State; or
(iii) released
from that part in that period and determined under clause 122 to be a
release of water allocated to that State; or
(iv) spilled
from that part in that period and deemed under clause 117 to be a spill of
water allocated to that State.
116. Internal
Spills
(1) In any major storage,
water allocated either to New South Wales or Victoria must be re‑allocated to
the other State to prevent the quantity of water allocated to either State in
the storage exceeding half the lesser of:
(a) the target capacity of the storage; or
(b) the quantity of water stored when releases are being
made for flood mitigation.
(2) In Hume and Lake
Victoria, “target capacity” means the capacity of the reservoir at the Full
Supply Level.
(3) In Dartmouth “target
capacity” means the lesser of:
(a) the capacity of the reservoir at the Full Supply
Level; or
(b) the quantity of water stored when water is being
released through the hydro‑electric power station and the storage level is
above the level specified by the Ministerial Council for the operation of the
power station.
(4) In Menindee Lakes “target
capacity” means the greater of the capacity:
(a) at the Full Supply Level; or
(b) at such higher level as may be determined from time to
time by the Ministerial Council.
(5) When water in Dartmouth Reservoir
is to be re‑allocated under sub‑clause (1) and there is capacity in Hume
Reservoir available to the State from which water is to be re‑allocated to
store some or all of the re‑allocated water, a compensating adjustment must be
made in Hume Reservoir so that the accounts of the State from which the water
is to be re‑allocated in Dartmouth Reservoir are not thereby reduced.
117. Accounting
for Spill from Storages
Any quantity of water spilled from any of the upper River
Murray storages, including water released solely to provide space for the
retention of floodwaters, is deemed to be water spilled out of the waters
allocated to New South Wales or Victoria respectively, in such proportions as
minimizes the re‑allocation of water under sub‑clause 116(1).
118. Accounting
for Releases from Dartmouth Reservoir
(1) Whenever the storage
level in Dartmouth Reservoir is above the level determined for the purposes of
this sub‑clause by the Ministerial Council, releases made from Dartmouth
Reservoir through the hydro‑electric power station will be deemed to be spills
and will be accounted for as provided in clause 117.
(2) No release from Dartmouth
Reservoir will be attributable to the allocation of water to New South Wales or
Victoria if the quantity of water in Dartmouth Reservoir allocated to that
State is less than or equal to half the minimum operating storage in the
reservoir.
(3) Releases from Dartmouth Reservoir
other than those covered by sub‑clauses (1) and (2) will be attributable to the
allocation of water to New South Wales or Victoria in such proportions as tend
most to equalize the quantities of water allocated to those States in Hume
Reservoir.
119. Accounting
for Releases from Hume Reservoir
(1) Any release made from
Hume Reservoir for the deliberate purpose of transferring water to Lake
Victoria for use at a later date will be attributable to the allocation of
water to New South Wales or Victoria in such proportions as tend most to
equalize the quantities of water allocated to the respective States in Lake
Victoria and the Menindee Lakes Storage.
(2) Releases from Hume
Reservoir other than those covered by sub‑clause (1) will be attributable to
the allocation of water to New South Wales or Victoria in such proportions as
satisfy the expected downstream water requirements of each State.
120. Accounting
for Releases from Menindee Lakes Storage
(1) For the purposes of this
clause releases from Menindee Lakes Storage consist of:
(a) water required to maintain a flow throughout the main
course of the Darling River downstream of Menindee Lakes;
(b) water released to satisfy use by New South Wales in
the main course of the Darling River downstream of Menindee Lakes;
(c) water released through the Lake Cawndilla Outlet
Regulator;
(d) water released down the main course of the Darling
River downstream of Menindee Lakes Storage to satisfy directions given by the
Authority under sub‑clause 98(1);
(e) any other water released from the Menindee Lakes
Storage which can be used either to supply South Australia’s entitlement under
clause 88 or 90 or to supply water to Lake Victoria.
(2) Whenever New South Wales
is using water pursuant to sub‑clause 95(1) all release from Menindee
Lakes Storage will be attributed to the allocation of water to New South Wales.
(3) Whenever sub‑clause 95(1)
does not apply to the use of water by New South Wales from the Menindee Lakes
Storage:
(a) releases under paragraph (1)(a) will be attributed
equally to the allocations of water to New South Wales and Victoria;
(b) releases under paragraph (1)(b) and (1)(c) will
be attributed to the allocation of water to New South Wales;
(c) releases under paragraph (1)(d) and (1)(e) will
be attributed to the respective allocations of New South Wales and Victoria in
such proportions as tend most to equalize the water in Lake Victoria allocated
to each State, provided that such proportions do not ‑
(i) cause
the water allocated either to New South Wales or to Victoria to fall below
240,000 megalitres;
(ii) cause
water to be re‑allocated between the States under clause 116.
121. Reallocation
of Water in Menindee Lakes Storage
At the conclusion of any period during which New South
Wales is using water pursuant to sub‑clause 95(1), the quantities of water
stored in the Menindee Lakes Storage and allocated respectively to New South
Wales and Victoria must be adjusted so that the difference between those
quantities is the same as the difference in the allocated quantities at the
beginning of that period.
122. Accounting
for Dilution Flows
(1) Whenever the Authority
directs under clause 98 that the flow of water is to exceed the water
order at a particular point, unless the Ministerial Council determines otherwise,
the proportion of the water order attributed respectively to New South Wales
and Victoria must be increased by such amounts as tend most to equalise the
respective allocations to New South Wales and Victoria of the total flow at
that point.
(2) For the purpose of this
clause the “water order” is the flow of water at a particular point which is
necessary:
(a) to meet diversions by New South Wales and Victoria,
losses and dilution flows downstream of that point;
(b) to meet South Australia’s entitlement; and
(c) to supply storages downstream of that point.
SUBDIVISION E — PERIODS OF SPECIAL ACCOUNTING
123. Declaration
of Periods of Special Accounting
(1) Unless the Authority is
satisfied that the reserve allocated to either New South Wales or Victoria at
the end of the following May will be greater than 1,250,000 megalitres, the
Authority must declare a period of special accounting between that State and
South Australia.
(2) A period of special
accounting:
(a) may be declared at any time after the end of July in
any year and before the end of May in the following year;
(b) unless the Ministerial Council decides otherwise, will
be deemed to have commenced on 1 August in that year, whenever it is in
fact declared.
124. Variation
of Navigation Depths During Restrictions
The Authority may vary the depth of water to be maintained
immediately downstream of a lock under sub‑paragraph 68(1)(b)(i), during any
period of special accounting.
125. Special
Accounts to be Kept
Throughout any period of special accounting declared for
New South Wales or Victoria, separate accounts must be kept by the Authority
of:
(a) all water diverted from the upper River Murray by the
State;
(b) the difference between ‑
(i) the
sum of all water entering the Upper River Murray downstream of Doctors Point
from ‑
• any tributary within that State
other than the River Darling, and
• any artificial outfall from that
State approved by the Ministerial Council for the purposes of clause 108;
and
(ii) any
water allocated to that State which flows to South Australia in excess of South
Australia’s entitlement under clause 88 or 90.
If (ii) exceeds (i), the account kept under this paragraph
must be set at zero;
(c) all water allocated to that State which is supplied by
it to meet South Australia’s entitlement under paragraph 88(a).
126. Imbalance
in Use
The imbalance in use between either New South Wales or
Victoria and South Australia in a period of special accounting is to be
calculated as follows:
One‑third
of the amount calculated under paragraph 125(a)
less:
One‑third
of the amount calculated under paragraph 125(b)
less:
Two‑thirds
of the amount calculated under paragraph 125(c).
127. Limits
on Imbalance in Use
On May 31 in any period of special accounting, the accounts
kept under clause 125 must be adjusted by the Authority to ensure that the
imbalance in use calculated under clause 126 is:
(a) less than one‑third; and
(b) greater than minus two‑thirds,
of the difference between 1,250,000 megalitres and the
reserve allocated to New South Wales or Victoria, as the case may require.
128. Restrictions
on South Australia’s Entitlement
(1) In a period of special
accounting, instead of the amounts set out in paragraph 88(a), South Australia
is entitled to receive, before the end of the following May, the lesser of:
(a) the sum of the monthly quantities set out in paragraph
88(a); and
(b) the sum of ‑
(i) one‑third
of the available water determined under paragraph 102(c); and
(ii) any
imbalance in use calculated under clause 126.
(2) South Australia may decide how to
apportion any entitlement under sub‑clause 128(1) between each month
provided that the quantity in any month must not exceed that specified in
paragraph 88(a).
129. Termination
of Periods of Special Accounting
The Authority must terminate a period of special
accounting declared for New South Wales or Victoria whenever it is satisfied
that the reserve allocated to that State at the end of the following May will
be greater than 1,250,000 megalitres.
SUBDIVISION F — ACCOUNTING FOR SOUTH AUSTRALIA’S STORAGE
RIGHT
130. Accounting
for South Australia’s Storage Rights
(1) The Authority must, as
soon as practicable after this Agreement comes into effect, prepare a draft
Schedule to this Agreement in accordance with this clause.
(2) The Authority must
provide the draft Schedule to the Committee.
(3) After considering the
draft Schedule, the Committee must submit the draft Schedule and the
Committee’s advice in relation to it, to the Ministerial Council.
(4) After receiving the draft
Schedule and the advice of the Committee, the Ministerial Council may:
(a) approve the Schedule with or without amendment; or
(b) refer the draft Schedule back to the Authority for
further consideration.
(5) When the Schedule is
approved by the Ministerial Council under paragraph (4)(a) it:
(a) becomes part of the Agreement; and
(b) takes effect as provided for in sub‑clause 5(2).
(6) The Schedule made for the
purposes of this clause must:
(a) set out rules for giving effect to and accounting for
South Australia’s storage rights under clause 91; and
(b) define what constitutes an effect on water
availability and storage access for the purposes of clause 91.
(7) Without limiting sub‑clause
(6), the Schedule made for the purposes of this clause must contain such rules
as may be required to ensure:
(a) that South Australia can exercise its storage right
for the purposes of meeting critical human water needs pursuant to sub‑clause 91(1)
in a manner that does not affect the water availability for New South Wales or
Victoria that would have existed under this Agreement had it not been for the
exercise by South Australia of its rights under that clause; and
(b) that South Australia can exercise its storage right
for the purpose of private carry‑over pursuant to sub‑clause 91(2) in a
manner that does not affect the water availability or storage access for New
South Wales or Victoria that would have existed under this Agreement had it not
been for the exercise by South Australia of its rights under that clause; and
(c) that, wherever possible, water stored pursuant to
clause 91 that is spilled from a storage, is re‑regulated for subsequent
use by South Australia; and
(d) that, subject to paragraphs (a) and (b), each
State is able to carry over a volume of water equivalent to 150% of its annual
critical human needs requirements (eighteen months supply); and
(e) that South Australia bears only incremental
evaporative losses in respect of its stored entitlement.
(8) A rule referred to in sub‑clause
(7) may have the effect of adding to, derogating from or otherwise altering any
provision of this Division.
(9) The Ministerial Council
may at any time as it sees fit request the Authority to prepare a draft
amendment.
(10) Sub‑clauses (2), (3), (4)
and (5) apply to a draft amendment as if it were a draft Schedule.
(11) The Authority must keep
separate accounts in respect of the application of rules set out under the
Schedule made for the purposes of this clause, including an account that
maintains a continuous record of the water that is stored, spilled, debited for
evaporation, and delivered to South Australia in accordance with the Schedule.
DIVISION 2 — TIER 2 DISTRIBUTION OF WATERS TO
ENSURE CRITICAL HUMAN WATER NEEDS
131. Application
of Division 2
(1) This Division applies:
(a) in the circumstances specified in the Basin Plan; and
(b) in a period before the Basin Plan first takes effect,
if the Ministerial Council declares in accordance with sub‑clause (3) that this
Division applies; and
(c) from the time this Agreement comes into effect.
(2) Once this Division has
commenced application in accordance with sub‑clause (1), it will cease to
apply:
(a) once the conditions specified in the Basin Plan are
satisfied; or
(b) in the period before the Basin Plan first takes
effect, at a time declared by the Ministerial Council.
(3) The Ministerial Council
may declare that this Division applies during a period before the Basin Plan
first takes effect if the Ministerial Council is satisfied that during that
period, the provisions of Division 1 of this Part will not or are not
likely to ensure that there will be enough water to meet conveyance water
needs.
132. Distribution
of Waters Subject to Schedule and Determinations of Ministerial Council
While this Division applies, the provisions of:
(a) Division 1 of this Part; and
(b) Part XIV of this Agreement and Schedule F,
apply subject to:
(c) the provisions of the Schedule made under clause 135,
and any determination of the Ministerial Council made in accordance with that Schedule;
or
(d) during the period before the Schedule is made under
clause 135 and before the Basin Plan first takes effect, any agreement by
First Ministers of the Contracting Governments.
DIVISION 3 — TIER 3 DISTRIBUTION OF WATERS IN
EXTREME OR UNPRECEDENTED CIRCUMSTANCES
133. Application
of Division 3
(1) This Division applies:
(a) in the circumstances specified in the Basin Plan; and
(b) in a period before the Basin Plan first takes effect,
if the Ministerial Council declares in accordance with sub‑clause (3) that this
Division applies.
(2) Once this Division has
commenced application in accordance with sub‑clause (1), it will cease to
apply:
(a) once the conditions specified in the Basin Plan are
satisfied; or
(b) in the period before the Basin Plan first takes
effect, at a time declared by the Ministerial Council.
(3) The Ministerial Council
may declare that this Division applies during a period before the Basin Plan is
adopted, but may only do so if satisfied that during that period, any one or
more of the following applies:
(a) there are extreme and unprecedented low levels of
water availability; or
(b) there is extreme and unprecedented poor water quality
in the water available to meet critical human water needs; or
(c) there is an extremely high risk that water will not be
available to meet critical human water needs during the next 12 months.
134. Distribution
of Waters Subject to Schedule and Determinations of Ministerial Council1
(1) While this Division
applies, the provisions of Division 1 of this Part, and of Part XIV
and Schedule F of this Agreement, apply subject to:
(a) the Schedule made under clause 135; and
(b) any determination of the Ministerial Council made in
accordance with this clause.
(2) For the purposes of this
Division, the Ministerial Council may make determinations about the way in
which State water entitlements will be determined, delivered and accounted for.
(3) The
Ministerial Council:
(a) may determine that any provision of —
(i) Division 1
of this Part; or
(ii) Part XIV
or Schedule F of this Agreement; or
(iii) the
Schedule made under clause 135,
applies, or does not apply, or applies to a specified extent
or in specified circumstances; or
(b) may make a determination about any matter the subject
of a provision referred to in paragraph (a) that is additional to,
substituted for or contrary to any such provision.
DIVISION 4 — SCHEDULE FOR WATER SHARING
135. Schedule
for Water Sharing
(1) The Authority must, as
soon as practicable after this Agreement comes into effect, prepare a draft
Schedule to this Agreement in accordance with this clause.
(2) The Authority must
provide the draft Schedule to the Committee.
(3) After considering the
draft Schedule, the Committee must submit the draft Schedule and the
Committee’s advice in relation to it, to the Ministerial Council.
(4) After receiving the draft
Schedule and the advice of the Committee, the Ministerial Council may:
(a) approve the Schedule with or without amendment; or
(b) refer the draft Schedule back to the Authority for
further consideration.
(5) When the Schedule is
approved by the Ministerial Council under paragraph (4)(a) it:
(a) becomes part of the Agreement; and
(b) takes effect as provided for in sub‑clause 5(2).
(6) The Schedule made for the
purposes of this clause must:
(a) set out the way in which State water entitlements will
be determined, delivered and accounted for; and
(b) provide for South Australia’s storage right under sub‑clause 91(1),
during
a period in which
either Division 2 or Division 3 of this Part applies.
(7) Without limiting other
provisions of this clause, the Schedule made for the purposes of this clause
may provide that:
(a) any provision of —
(i) Division 1
of this Part; or
(ii) Part XIV
or Schedule F of this Agreement,
does not apply, or applies to a specified extent or in
specified circumstances; or
(b) any provision referred to in paragraph (a) may be
determined by the Ministerial Council to apply, or to apply to a specified
extent or in specified circumstances; or
(c) the Ministerial Council:
(i) must
exercise a discretion provided in Division 1 of this Part in a specified
way or at a specified time; or
(ii) may
make a determination about any matter the subject of a provision of Division 1
of this Part or Part XIV or Schedule F of this Agreement that is
additional to, substituted for or contrary to any such provision.
(8) The Schedule made for the
purpose of this clause must be prepared on the basis of the fact that the
Contracting Governments have agreed:
(a) that critical human water needs are the highest
priority water use for communities who are dependent on Basin water resources;
(b) in particular that, to give effect to this priority in
the upper River Murray, the upper River Murray storages and the River Murray in
South Australia (the system), water (conveyance water) in the system required
to deliver water to meet critical human water needs will receive first priority
from the water available in the system;
(c) that each State Contracting Government will be
responsible for meeting critical human water needs in its State, and will
decide how water from its entitlement is used.
(9) After the Basin Plan
takes effect, the Schedule made for the purposes of this clause, and any
amendment to it, must be prepared having regard to the provisions of the Basin
Plan, and in particular, to such of those provisions that are required by Part 2A
of the Water Act.
(10) If the Schedule required
by this clause has not been made at the time the Basin Plan first takes effect,
then those provisions of the Basin Plan required by Part 2A of the Water
Act are taken to be the Schedule for the purposes of this Division until the
Schedule is made by the Ministerial Council in accordance with this clause.
(11) The Ministerial Council
must review the Schedule made for the purposes of this clause:
(a) from time to time; and
(b) at least once in respect of each period in which
Division 3 of this Part applies.
(12) The Ministerial Council
may, at any time as it sees fit, request the Authority to prepare a draft
amendment.
(13) Sub‑clauses (2), (3), (4)
and (5) apply to a draft amendment as if it were a draft Schedule.
PART
XIII — MENINDEE LAKES STORAGE
136. Maintenance
of Menindee Lakes Storage
New South Wales must maintain the Menindee Lakes Storage
and associated works in the good order and condition necessary to meet the full
supply levels and storage capacities referred to in clause 137.
137. Full
Supply Levels
For the purposes of this Agreement, and unless otherwise
agreed between New South Wales and the Authority by the exchange of letters
between them, the full supply levels of the Menindee Lakes Storage will be:
Lake Wetherell ‑ Elevation 61.7 Australian Height Datum
Lake Pamamaroo ‑ Elevation 60.4 Australian Height Datum
Lake Menindee ‑ Elevation 59.8 Australian Height Datum
Lake Cawndilla ‑ Elevation 59.8 Australian Height Datum
corresponding to a total storage capacity of approximately
1 680 000 megalitres.
138. Financial
Contributions of Authority
Each year the Authority must pay New South Wales:
(a) $320,000 in equal instalments at the end of each
quarter; and
(b) three quarters of the costs of operating and
maintaining the Menindee Lakes storage,
or such other amounts as may be specified in the approved
corporate plan, from time to time.
PART
XIV — EFFECT OF SNOWY SCHEME
139. Effect
of Snowy Scheme
Subject to Divisions 2 and 3 of Part XII, the
Authority must determine the respective allocations to New South Wales and
Victoria of water made available from the Snowy Scheme for the purposes of this
Agreement, in the manner set out in Schedule F.
PART
XV — MISCELLANEOUS
140. Resolution
of Disputes
(1) If the Committee fails to
agree on any motion submitted by a Committee member within two months, that
Committee member may refer the matter to the Ministerial Council.
(2) If the Ministerial
Council fails to resolve the matter within six months, any member may refer it
to an arbitrator.
(3) When a matter is referred
to an arbitrator, any Contracting Government may give the other Contracting
Governments written notice to agree to appoint an arbitrator to decide the
matter.
(4) If an arbitrator is not
appointed within two months of notice being given, the Chief Justice of the
Supreme Court of Tasmania, or the person acting in that office, may appoint an
arbitrator at the request of the Contracting Government giving notice under sub‑clause
(3).
(5) The decision of any
arbitrator appointed under this clause:
(a) is deemed to be the decision of the Committee; and
(b) binds the Committee, the Ministerial Council and the
Contracting Governments.
(6) This clause does not
apply to a resolution:
(a) on a question of law; or
(b) which has been decided by a majority vote of the
Committee pursuant to a provision of this Agreement.
141. Resolution
of operational management and delivery inconsistencies
(1) If the Authority or the
Committee is of the opinion that there are operational management and delivery
inconsistencies between the application of the Basin Plan and any State’s
management and delivery of State water entitlements or of entitlements to water
exercised within its territory, the Committee must consider and seek to resolve
the matter in accordance with this clause.
(2) If the Committee is
unable to resolve a matter before it under this clause that is of strategic
significance (including a matter that is of strategic significance because it
relates to State water entitlements), the Committee may request the Ministerial
Council to make a strategic direction in relation to the matter.
(3) A request made by the
Committee under sub‑clause (2) must be accompanied by a statement that outlines
the strategic significance of the relevant matter and details the question or
questions on which the Committee seeks direction.
142. Proposals
to Amend Agreement
(1) The Authority must review this
Agreement:
(a) within twelve months of the Basin Plan first taking
effect; and
(b) at any other time, as it thinks fit,
and may, as a result of
such a review, recommend to the Ministerial Council any amendments it thinks
necessary or desirable.
(2) The Authority must
consult the Committee when carrying out a review under sub‑clause (1).
143. Giving
Information to the Authority
Each Contracting Government must give all the information
it can to the Authority for the purposes of this Agreement, whenever the
Authority requests it.
144. Authorities
to Observe Agreement
Each Contracting Government
must ensure that any public authority which exercises functions under this
Agreement, observes its provisions.
PART
XVI — INDEMNITIES IN RESPECT OF COMMITTEE AND AUTHORITY
145. Indemnity
in Respect of Payments Made by Commonwealth
(1) Subject to sub‑clauses 37(2)
and 38(2), any payment made by the Commonwealth of Australia in respect of
losses or costs incurred by it arising:
(a) from any act or omission of the Authority in the bona
fide execution of the powers vested in the Authority by or under this
Agreement;
(b) because of the operation of section 239F of the
Water Act;
(c) because of the operation of either of sections 239J
or 239K of the Water Act in respect of proceedings relating to the Commission
or a person who was appointed as a President or Deputy President; or
(d) because of an indemnity in either of items 7(1)
or 7(3) of Schedule 3 to the Water Amendment Act 2008
(Commonwealth),
must be
borne by the Contracting Governments in equal shares.
(2) Sub‑clause (1) does not
apply to a payment made by the Commonwealth of Australia under paragraph (1)(a)
in its capacity as a Contracting Government under this Agreement.
(3) In this clause, the terms
“President” and “Deputy President” have the same meanings as under the former
Agreement.
Note — Section 174 of the Water Act
provides that financial liabilities of the Authority are taken to be
liabilities of the Commonwealth.
146. Indemnity
in Respect of Payments Relating to Former Commissioners
(1) Any payment made by the
Commonwealth of Australia in respect of:
(a) a liability arising because of the operation of either
of sections 239J or 239K of the Water Act in respect of proceedings
relating to a person who was appointed as a Commissioner or Deputy
Commissioner; or
(b) losses or costs incurred by it because of the
indemnity in item 7(2) of Schedule 3 to the Water Amendment Act
2008 (Commonwealth),
must be
borne by the
Contracting Government which had appointed that Commissioner or Deputy
Commissioner.
(2) In this clause, the terms
“Commissioner” and “Deputy Commissioner” have the same meanings as under the
former Agreement.
147. Commonwealth
to consult other Contracting Governments
(1) Upon receiving notice of
a claim to which either of clauses 145 or 146 may apply, the
Commonwealth must give written notice of the claim to each State Contracting
Government or Governments which may be liable, because of the operation of
either of those clauses, to bear any part of a payment made in respect of that
claim.
(2) Before settling a claim
to which sub‑clause (1) refers, the Commonwealth must obtain the agreement of
the State Contracting Government or Governments which will be liable to bear
any part of a payment made in respect of that settlement because of the
operation of either of clauses 145 or 146.
148. Liability
for Acts of Committee Members
Each Contracting Government
must indemnify each Committee member appointed for or by that Contracting
Government in respect of any act or omission of that Committee member and for
any losses or costs incurred by that Committee member, in the bona fide
execution of the powers vested in the Committee by or under this Agreement.
PART
XVII — TRANSITIONAL PROVISIONS AND REVIEW OF SCHEDULES, RESOLUTIONS AND
ACTIVITIES
149. Definitions
In this Part:
“commencing day” means the day on which this
Agreement comes into effect;
“current financial year” means the financial year
during which this Agreement comes into effect;
“next financial year” means the financial year
following the current financial year;
“transitional provisions” means transitional
provisions contained in this Agreement and transitional provisions contained in
or made under the Water Act that relate to the former Agreement.
150. Transitional
Provisions
(1) Acts or things consistent
with this Agreement done by or on behalf of a Contracting Government or the
Authority, the Committee or the Commission in anticipation of this Agreement
are deemed to have been done under and in accordance with its provisions.
(2) Without limiting the
generality of sub‑clause (2):
(a) any estimates for the current financial year sent by
the Commission to the Contracting Governments before the commencing day are
deemed to be estimates sent by the Authority in respect of that year;
(b) any moneys paid by a
Contracting Government to the Commission before the commencing day are deemed
to have been paid to the Authority under clause 75 for the current
financial year;
(c) any moneys spent by the Commission before the
commencing day in accordance with estimates referred to in paragraph (a)
are deemed to have been spent pursuant to the Agreement for the current
financial year;
(d) if the commencing day falls between 31 March and
30 June in any year, any estimates sent by the Commission to the
Contracting Governments before that day for the next financial year are deemed
to be estimates sent by the Authority for that next financial year.
(3) Money of a kind referred
to in clause 83 paid by a Contracting Government to the Commission in the
current financial year is deemed to have been paid under that clause.
(4) At the commencing day,
the shares of the control of the transitional RMO assets will be retained by
the Commonwealth, South Australia, New South Wales and Victoria, in the
following shares:
Commonwealth 20%
South Australia 26.67%
New South Wales 26.67%
Victoria 26.67%
(5) The shares referred to in
sub‑clause (4) may be altered by the asset agreement.
151. Review
of resolutions, directions, procedures and measures and other activities
(1) As soon as practicable
after the commencing day and before the Basin Plan first takes effect, the
Ministerial Council is to undertake a review of:
(a) resolutions of the former Ministerial Council that
continue to have effect by virtue of the transitional provisions; and
(b) such of the resolutions, directions or procedures of
the Commission that continue to have effect, by virtue of the transitional
provisions, as if they were resolutions of the Ministerial Council under this
Agreement.
(2) As soon as practicable
after the commencing day and before the Basin Plan first takes effect, the
Authority is to undertake a review of such of the resolutions, directions,
procedures, measures and other activities of the Commission that continue to
have effect by virtue of the transitional provisions as if they were
resolutions, directions, procedures, measures and other activities of the
Authority under this Agreement.
152. Review
of Schedules
(1) Without limiting clause 142
the Authority must, in consultation with the Committee and before the Basin
Plan first takes effect, review the operation of:
(a) each of Schedules B, D, E and F of this Agreement; and
(b) the Schedules made under clauses 130 and 135 of
this Agreement,
to
assess the extent to which each Schedule is consistent with the proposed Basin
Plan.
(2) If as a result of such a review
the Authority forms the view that any change to any of the Schedules (including
the removal of a Schedule or a change in the way a Schedule is administered) is
necessary or desirable to improve consistency with the Basin Plan, the
Authority must:
(a) recommend to the Ministerial Council that such change
be made; and
(b) in so far as it is possible and appropriate for a
change to be effected through a change in the corporate plan, include such
change in a revised corporate plan for the approval of the Ministerial Council.
Signed for and on behalf
of each of the parties by:
The Honourable Kevin Rudd MP )
Prime Minister of Australia )
The Honourable Nathan Rees MP )
Premier of the State of New South Wales )
The Honourable John Brumby MP )
Premier of the State of Victoria )
The Honourable Anna Bligh MP )
Premier of the State of Queensland )
The Honourable Michael Rann MP )
Premier of the State of South Australia )
Mr Jon Stanhope MLA )
Chief Minister of the Australian Capital Territory )
SCHEDULE A — WORKS
|
Description of Works
|
Location
|
Nominated
Government
|
|
DARTMOUTH DAM
Capacity
of approximately 4,000,000 megalitres.
|
Mitta Mitta
River upstream of the town of Dartmouth, north‑eastern Victoria.
|
Victoria
|
|
HUME DAM
Capacity
of approximately 3,038,000 megalitres.
|
River Murray
upstream of the city of Albury, New South Wales.
|
New South
Wales and Victoria, jointly
|
|
LAKE VICTORIA WORKS
Regulation reservoir with a storage capacity of
approximately 700,000 megalitres.
|
Lake Victoria, New South Wales connected with main stream
of River Murray by Rufus River and Frenchman’s Creek.
|
South
Australia
|
|
YARRAWONGA WEIR
Storage of about 120,000 megalitres.
|
River Murray
near the town of Yarrawonga, Victoria.
|
Victoria
|
|
WEIR AND LOCKS
Construction of thirteen weirs and locks in the course of
the River Murray from its mouth to Echuca, namely:
|
River distance from Murray mouth in kilometres.
|
|
|
No 1 Blanchetown
|
274
|
South
Australia
|
|
No 2
Waikerie
|
362
|
South
Australia
|
|
No 3
Overland Corner
|
431
|
South
Australia
|
|
No 4
Bookpurnong
|
516
|
South
Australia
|
|
No 5
Renmark
|
562
|
South
Australia
|
|
No 6
Murtho
|
620
|
South
Australia
|
|
No 7
Rufus River
|
697
|
South
Australia
|
|
No 8
Wangumma
|
726
|
South
Australia
|
|
No 9
Kulnine
|
765
|
South
Australia
|
|
No 10
Wentworth
|
825
|
New South
Wales
|
|
No 11
Mildura
|
878
|
Victoria
|
|
No 15
Euston
|
1,110
|
New South
Wales
|
|
No 26
Torrumbarry
|
1,368
|
Victoria
|
|
MURRAY MOUTH BARRAGES:
|
|
|
|
Goolwa
|
Goolwa Channel
|
South Australia
|
|
Mundoo
|
Mundoo
Channel
|
South
Australia
|
|
Boundary
|
Boundary
Creek Channel
|
South
Australia
|
|
Ewe
Island
|
Ewe
Island Channel
|
South
Australia
|
|
Tauwitchere
|
Tauwitchere
Island
|
South
Australia
|
SCHEDULE
B — BASIN SALINITY MANAGEMENT
PART I — PRELIMINARY
1. Purpose
The purpose of this Schedule is to implement certain
aspects of the Basin Salinity Management Strategy 2001‑2015, or any
subsequent strategy approved by the Ministerial Council to manage salinity:
(a) by promoting joint works, measures and other action to
reduce or limit the rate at which salinity increases within the Murray‑Darling
Basin;
(b) by providing for the adoption of salinity targets;
(c) by establishing Registers to record salinity impacts
and to allocate salinity credits and salinity debits to Contracting
Governments; and
(d) by providing for monitoring, assessing, auditing and
reporting on matters set out in this Schedule and on progress in implementing
the Strategy.
2. Definitions
(1) In this Schedule, unless
the contrary intention appears:
(a) “Accountable Action” means an action that:
(i) is
undertaken after a relevant Baseline Date; and
(ii) the
Authority has decided will have a Significant Effect under paragraph 18(1)(b);
and
(iii) the
Authority has entered in a Register.
“action” means:
(i) any
work or measure; and
(ii) any
alteration to, or cessation of, any work or measure,
relevant to the purposes of this Schedule.
“average salinity” means
the average daily salinity of the River Murray calculated in accordance with
protocols made by the Authority under clause 40;
“average salinity costs”
means the average costs to users of water from the upper River Murray and the
River Murray in South Australia incurred because of the salinity of the water
used, as calculated in accordance with protocols made by the Authority under
clause 40;
“Baseline Conditions”
means the baseline conditions approved for the purposes of clause 5 of the
former Schedule, or amended by the Authority in accordance with clause 5
of this Schedule;
“Baseline Date” means:
(i) with
respect to New South Wales, Victoria and South Australia — 1 January 1988;
and
(ii) with
respect to Queensland and the Australian Capital Territory — 1 January
2000;
“Basin Salinity Target”
means the target referred to in clause 7;
“Benchmark Period” means
the period from 1 May 1975 to 30 April 2000, or such other period as
the Authority may from time to time determine;
“Delayed salinity impact”
means a salinity impact which occurs after 1 January 2000, but which:
(i) in
the case of New South Wales, Victoria or South Australia, is attributable to an
action taken or decision made in that State before 1 January 1988; and
(ii) in
the case of Queensland or the Australian Capital Territory, is attributable to
an action taken or decision made in that State before 1 January 2000;
“End‑of‑Valley Target”
means a target set out in Appendix 1 as amended from time to time by the
Ministerial Council under clause 9 and includes a reference to the site at
which the degree to which the relevant Government achieves that target is to be
measured;
“Former salinity and drainage
work” means any work or measure entered on the Register maintained under
the Salinity and Drainage Strategy, immediately before this Schedule took
effect;
“former Schedule” means
Schedule C of the former Agreement;
“Joint work or measure”
means a work or measure authorised under clause 56 of the Agreement for
the purposes of this Schedule;
“Joint Program” means the
program of Joint works or measures referred to in sub‑clause 10(1);
“Program of actions” means
a Program of actions referred to in clause 6;
“Proposal” means any
proposal relevant to the subject‑matter of this Schedule, for any action.
“Register A” means the
register referred to in sub‑clauses 15(1), (2) and (3);
“Register B” means the
register referred to in sub‑clauses 15(1), (2) and (4);
“Salinity and Drainage
Strategy” means Schedule C of the former Agreement immediately prior to the
amendment of the former Agreement by replacing that Schedule with the former
Schedule;
“salinity cost effect”
means a change in average salinity costs resulting from an action, as
calculated by the Authority;
“salinity credit” means
the reduction in average salinity costs estimated by the Authority in
accordance with clause 20;
“salinity debit” means an
increase in average salinity costs estimated by the Authority in accordance
with clause 20;
“salinity effect” means a
change in the average salinity at Morgan resulting from any action, as
estimated by the Authority;
“salinity impact” means
both the salinity effect and the salinity cost effect;
“Significant Effect” has the
meaning set out in sub‑clause 18(3);
“State Action” means any
Accountable Action that is not a Joint work or measure;
“Strategy” means the Basin
Salinity Management Strategy 2001‑2015 as adopted and amended by the
Ministerial Council from time to time;
“undertake”, in relation
to:
(i) a
work, includes investigating, designing, constructing, operating and
maintaining that work; and
(ii) a
measure, includes investigating, developing and implementing that measure;
“valley” means a valley
or other geographic area specified in the first column of Appendix 1.
(b) a reference to a Part, clause, sub‑clause, paragraph,
or Appendix is a reference to a Part, clause, sub‑clause, paragraph or Appendix
of this Schedule.
(2) When a Contracting
Government informs the Authority of a Proposal under sub‑clause 17(1), it
must be taken also to have informed the Authority under paragraph 49(1)(a) of
the Agreement.
3. Application
to Queensland and Australian Capital Territory
(1) Subject to sub‑clause 3(2),
the whole of this Schedule applies to Queensland and the Australian Capital
Territory.
(2) If a provision of this
Schedule states that it:
(a) does not apply to Queensland or the Australian Capital
Territory; or
(b) applies to Queensland or the Australian Capital Territory
only in part, or subject to specified conditions,
that provision takes
effect according to its terms.
(3) Unless
otherwise indicated, a reference to a State Contracting Government includes a
reference to the Government of the State of Queensland and the Government of
the Australian Capital Territory.
(4) The Governments of the
State of Queensland and the Australian Capital Territory will share equally
with other Contracting Governments such investigations, construction and
administration costs, as defined in clause 71 of the Agreement, as are
attributable to implementing this Schedule, except:
(a) where the Committee determines otherwise, under sub‑clause 72(1)
of the Agreement; or
(b) to the extent that this Schedule provides otherwise in
clauses 13 and 48; or
(c) for such of those costs that are referred to in paragraphs (a),
(f) and (j) of the definition of “investigations, construction and
administration costs” in clause 71 of the Agreement; or
(d) where the cost is attributable to a matter set out in
sub‑clause 37(4) of the Agreement.
PART II — ACCOUNTABILITY FOR SALINITY IMPACTS
4. Accountability
for Salinity Impacts
(1) A Contracting Government
must not, and must ensure that any public authority responsible to it does not
undertake, alter or cease, or permit the undertaking, alteration or cessation
of, any action that may have a Significant Effect except in accordance with
this Schedule.
(2) Each State Contracting
Government must undertake actions in accordance with this Schedule necessary to
meet that Government’s End‑of‑Valley Targets.
5. Determining
Baseline Conditions
(1) This clause establishes
the process for determining the baseline conditions contributing to the
movement of salt through land and water upstream of:
(a) an End‑of‑Valley Target site determined under this
clause; and
(b) the Basin Salinity Target site at Morgan,
but
does not refer to the baseline conditions defined in clause 2 of Schedule
E of the Agreement.
(2) The estimated baseline
conditions relating to the salinity, salt load and flow regime —
(a) at the Basin Salinity Target site at Morgan as at 1 January
2000; and
(b) at each site at which each State Contracting
Government proposes to measure that Government’s compliance with an End‑of‑Valley
Target (if adopted) for the portion of the Murray‑Darling Basin within that
State, as at 1 January 2000,
are those approved —
(c) under clause 5 of the former Schedule; or
(d) by the Authority in accordance with this clause.
(3) The Australian Capital
Territory must, as soon as practicable, prepare and give to the Authority
estimated baseline conditions relating to the salinity, salt load and flow
regime at each site at which it proposes to measure that Government’s
compliance with an End‑of‑Valley Target (if adopted) for the portion of the
Murray‑Darling Basin within that State, as at 1 January 2000.
(4) Sub‑clauses 5(6),
(7) and (8) apply to estimated baseline conditions prepared by the Australian
Capital Territory under sub‑clause 5(3) as if they were an amendment proposed
under sub‑clause 5(5).
(5) A State Contracting
Government or the Authority (as the case requires) may, from time to time,
propose an amendment to any estimate of a baseline condition, using the best
information available to the State Contracting Government or the Authority at
the time the amendment is proposed.
(6) The Authority must
appoint an appropriately qualified panel, which shall include at least one
representative from each State Contracting Government, to review and advise the
Authority about any proposed amendment to any estimate of baseline conditions
made by a State Contracting Government or the Authority.
(7) After considering the
advice of the panel, the Authority may:
(a) approve a proposed amendment; or
(b) approve that proposed amendment, subject to the
relevant Government modifying it in any way agreed between the Authority and
the relevant Government; or
(c) refuse to approve the proposed amendment.
(8) Within 6 months after the
Authority and the relevant Government agree on a modification under paragraph
5(7)(b), the relevant Government must:
(a) modify the estimate in accordance with that agreement;
and
(b) give the Authority a copy of the modified estimate.
(9) An estimate of baseline
conditions, in the form initially given to the Authority, may be used
temporarily for the purposes of this Schedule until the relevant Government has
complied with sub‑clause 5(8).
6. Meeting
End‑of‑Valley Targets
(1) Each State Contracting
Government must, by 31 March 2004 and thereafter at intervals of not more
than 5 years, give the Authority its proposed Program of actions to meet End‑of‑Valley
Targets adopted for that State.
(2) A proposed Program of
actions must include the following information about the salinity, salt load
and, where relevant, the flow regime at each site at which compliance with an
End‑of‑Valley Target is to be measured:
(a) the Baseline Conditions; and
(b) the Government’s estimate of Delayed salinity impacts
in each of 2015, 2050 and 2100 if no action were taken to reduce or limit such
salinity impacts; and
(c) the relevant End‑of‑Valley Target; and
(d) the predicted effect of implementing the proposed
Program of actions in each of 2015, 2050 and 2100.
(3) The Authority must
estimate (using the best information available to the Authority at the time the
estimate is made) whether a proposed Program of actions, if undertaken in
accordance with its terms, is reasonably certain to meet each End‑of‑Valley
Target for the relevant State.
(4) A State Contracting Government
must give the Authority sufficient information about its proposed Program of
actions:
(a) to enable the Authority to make the estimate referred
to in sub‑clause 6(3); and
(b) in sufficient time to allow the Authority, having made
that estimate, to make representations to that Contracting Government before
the Contracting Government decides whether to proceed with the proposed Program
of actions.
(5) A State Contracting
Government may, from time to time, propose an amendment to a Program of actions
to meet End‑of‑Valley Targets adopted for that State
(6) Sub‑clauses 6(3) and
(4) apply to any amendment proposed under sub‑clause 6(6) as if it were a
Program of actions referred to in sub‑clause 6(1).
(7) A State Contracting
Government must prepare reports about undertaking a Program of actions, as set
out in clause 30.
PART III — SALINITY TARGETS
7. Basin
Salinity Target
(1) The Basin Salinity Target
is to maintain the average daily salinity at Morgan at a simulated level of
less than 800 E.C. for at least 95% of the time, during the Benchmark Period.
(2) Achievement of the Basin
Salinity Target must be assessed by the Authority from time to time, using one
or more of the models developed under clause 36, adapted to simulate the
land and water management conditions at the time the assessment is made.
8. End‑of‑Valley
Targets for the Australian Capital Territory
(1) The Australian Capital
Territory must, as soon as practicable, nominate to the Authority an End‑of‑Valley
Target for each valley within the State designated as requiring such a target
in Appendix 1.
(2) The Authority must refer
each nominated End‑of‑Valley Target to the Ministerial Council, together with:
(a) the Authority’s estimate of the likely effects of
meeting the nominated target on:
(i) significant
environmental, economic, social and other characteristics in the upper River
Murray and the River Murray in South Australia; and
(ii) meeting
the Basin Target;
(b) the Authority’s advice about whether the nominated
target is contributing adequately to achieving the objectives of the Strategy;
and
(c) the Authority’s opinion on what, if any, additional
works or measures are necessary, desirable or convenient to meet the Basin
Target.
(3) The
Ministerial Council:
(a) after considering the
matters referred to it by the Authority, may adopt an End‑of‑Valley Target; and
(b) must resolve to amend Appendix 1 to include any target
which it adopts.
9. Reviewing
and amending End‑of‑Valley Targets
(1) The Authority must, at
intervals of not more than 5 years, review the adequacy and appropriateness of
each End‑of‑Valley Target.
(2) The Authority, or the
relevant State Contracting Government which nominated an End‑of‑Valley Target,
may request the Ministerial Council to amend that target.
(3) Where a State Contracting
Government requests the Ministerial Council to amend an End‑of‑Valley Target,
the Authority must consult that Government and the Committee before the
Authority makes any recommendation under sub‑clause 9(4).
(4) The Authority must
recommend to the Ministerial Council whether or not the Ministerial Council
should adopt a request made under sub‑clause 9(2).
(5) In any recommendation
made under sub‑clause 9(4), the Authority must set out:
(a) the Authority’s estimate of the likely effects of
meeting the nominated target on:
(i) significant
environmental, economic, social and other characteristics in the upper River
Murray and the River Murray in South Australia; and
(ii) meeting
the Basin Salinity Target;
(b) the Authority’s advice about whether the nominated
target is contributing adequately to achieving the objectives of the Strategy;
(c) the Authority’s opinion on what, if any, additional
works or measures are necessary, desirable or convenient to meet the Basin
Salinity Target; and
(d) any new information about any of those matters which
has become available to the Authority, since the relevant End‑of‑Valley Target
was adopted by the Ministerial Council, including information that has become
available to the Authority due to the discharge of functions and exercise of
powers under the Water Act.
(6) The Ministerial Council:
(a) may, after considering the matters set out in any
recommendation made to it by the Authority, amend an End‑of‑Valley Target; and
(b) must resolve to amend Appendix 1 to include any
amended End‑of‑Valley Target.
PART IV — JOINT WORKS AND MEASURES
10. Joint
program
(1) Subject to Part VIII
of the Agreement, the Contracting Governments must implement a Joint Program of
Joint works and measures under this Schedule:
(a) to maintain the quality of the upper River Murray and
the River Murray in South Australia for agricultural, environmental, urban,
industrial and recreational uses; and
(b) which is sufficient to have the cumulative effect of
offsetting predicted future increases in average daily salinity at Morgan,
arising from Accountable Actions and Delayed salinity impacts, by 61 E.C. (or
by such other figure determined by the Ministerial Council from time to time)
before 31 December 2007.
(2) Subject to Part VIII
of the Agreement, after 31 December 2007, the Ministerial Council must
authorise, and the Contracting Governments must undertake, any further Joint
works or measures that the Ministerial Council decides are necessary, desirable
or convenient to maintain salinity at or below the Basin Salinity Target.
(3) The Authority must enter
any Joint work or measure undertaken under this clause on a Register as an
Accountable Action, in accordance with Part V.
11. Attribution
of salinity credits or salinity debits for Joint works or measures
Subject to clause 13, unless the Ministerial Council
decides otherwise, any salinity credits or salinity debits arising from any
Joint work or measure undertaken under clause 10 will be attributed to a
Contracting Government to offset salinity debits due to:
(a) Accountable Actions entered on Register A; and
(b) Delayed salinity impacts entered on Register B,
according to the following formula:
Register A
(a) New South Wales
16.39%
(b) South Australia
16.39%
(c) Victoria 16.39%
Register B
(a) New South Wales 8.61%
(b) South Australia 8.61%
(c) Victoria 8.61%
(d) Commonwealth 25.00%
12. Authorised
Joint works and measures
(1) The
Ministerial Council must:
(a) set out in Appendix 2 a list of Joint works and
measures authorised for the purposes of each of the former Schedule (as it
existed immediately before this Schedule commenced) and this Schedule; and
(b) amend Appendix 2 whenever a new Joint work or measure
is authorised.
(2) Any work or measure from
time to time included in Appendix 2 must be taken:
(a) to have been authorised under clause 56 of the
Agreement; and
(b) to have been declared effective under clause 64
of the Agreement; and
(c) to be a Joint work or measure for the purposes of this
Schedule.
(3) If a Joint work or
measure included in Appendix 2 was completed before the former Schedule came
into force, it is a Former salinity and drainage work for the purposes of this
Schedule.
(4) The Authority may, in
accordance with the asset management plan approved under clause 53 of the
Agreement, declare the whole or part of any Joint works or measures to be
ineffective, pursuant to sub‑clause 70(1) of the Agreement.
(5) The Ministerial Council
may, upon the recommendation of the Committee:
(a) declare that any Joint works or measures must be
treated as a State Action, in whole or in part; and
(b) amend Appendix 2 to the extent necessary to implement
any declaration made under sub‑clause 12(4) or paragraph 12(5)(a).
13. Participation
by Queensland and Australian Capital Territory
(1) Subject to sub‑clause 13(2),
the Government of Queensland or the Australian Capital Territory (as the case
requires) is not required to contribute to the costs of, nor will salinity
credits or salinity debits be attributed to that Government in relation to:
(a) any joint work or measure undertaken under the Joint
Program; or
(b) any Former salinity and drainage work.
(2) The Committee may
determine whether, and if so what:
(a) costs; or
(b) salinity credits or salinity debits,
relating
to a Joint work or measure undertaken after 1 January 2008 must be
contributed by, or will be attributed to, the Government of Queensland or the
Australian Capital Territory; and
(c) consequential adjustment may be necessary to the
formula set out in clause 11.
14. Co‑ordinating
Joint Works and Measures
The Authority must co‑ordinate the activities of each
State Contracting Government and its relevant Constructing Authority in
undertaking a Joint work or measure.
PART V — THE REGISTERS
15. Establishing
the Registers
(1) Register A and Register B
established under the former Schedule are continued in existence in the form in
which they were held, and containing the information they contained,
immediately prior to commencement of this Schedule.
(2) The Authority must
maintain Register A and Register B in accordance with this Schedule and any
protocols made by the Authority under clause 40.
(3) The Authority must
include the following matters on Register A:
(a) all Former salinity and drainage works; and
(b) except as provided in paragraph 15(4)(b), any action
undertaken after a relevant Baseline Date that the Authority has declared has
had, or may have, a Significant Effect.
(4) The Authority must
include the following matters on Register B:
(a) every Delayed salinity impact which the Authority
considers may have a Significant Effect; and
(b) any action undertaken under this Schedule, expressly
for the purpose of off‑setting a Delayed salinity impact which the Authority determines
may otherwise occur, in accordance with any protocols made by the Authority
under clause 40.
16. Obligations
of State Contracting Governments
(1) A State Contracting
Government must take whatever action may be necessary:
(a) to keep the total of any salinity credits in excess
of, or equal to, the total of any salinity debits, attributed to it in Register
A; and
(b) to keep the cumulative total of all salinity credits
in excess of, or equal to, the cumulative total of all salinity debits, attributed
to it in both Register A and Register B.
(2) For the purpose of
calculating the total of any salinity credits under sub‑clause 16(1), any
salinity credits which may in future be attributed to a State Contracting
Government must not be included in the calculation, unless the Authority
determines otherwise.
(3) Despite sub‑clause 16(2)
and any provision in clause 20 or 22, for the purposes of any calculation
under sub‑clause 16(1) and on the application of a State Contracting
Government, the Authority may decide:
(a) to postpone the attribution of any salinity debit
which might otherwise be attributed to that Government in Register A or
Register B, in respect of an Accountable Action that the Government proposes to
undertake; or
(b) to allow any salinity credit which might otherwise be
attributed to that Government in Register A or Register B, in respect of an
Accountable Action after it is declared effective or complete in accordance
with sub‑clause 22(1) or 22(3) to be used in the calculation to off‑set
any salinity debit already attributed to that Government in Register A or
Register B.
(4) The Authority:
(a) must only make a decision under sub‑clause 16(3);
and
(b) may attach any condition to such a decision,
in accordance with any
relevant protocols made by the Authority under clause 40.
17. Operating
Registers
(1) A Contracting Government
must inform the Authority of any Proposal which the Government, acting
reasonably, considers is likely to have a Significant Effect.
(2) The Authority must
decide, in accordance with any relevant protocols made by the Authority under
clause 40, whether the Proposal:
(a) is to be entered on either or both of Register A and
Register B, or neither of them; and
(b) must be treated in whole or in part as either or both
of a State Action and a Joint work or measure.
(3) The Authority must:
(a) estimate the salinity impacts of an Accountable
Action; and
(b) determine any salinity credits or salinity debits
arising from that Accountable Action; and
(c) attribute those salinity credits or salinity debits to
one or more of the Contracting Governments in the relevant Register, in
accordance with clause 11 and any protocols adopted by the Authority under
clause 40.
(4) The Authority must review
and amend each item on Register A and Register B in accordance with clause 24.
18. Determining
whether a Proposal has a Significant Effect
(1) If a Contracting
Government informs the Authority of a Proposal, the Authority must:
(a) investigate that Proposal; and
(b) decide whether the Proposal, either on its own or
cumulatively with similar past actions or projected similar future actions, may
have a Significant Effect.
(2) If the Authority becomes
aware of an action undertaken within a State after the relevant Baseline Date,
of which the Authority has not previously been informed as a Proposal, but
which the Authority considers has had or may have a Significant Effect, either
on its own or cumulatively with similar past actions or projected similar
future actions, it may direct the relevant State Contracting Government to
inform the Authority of the action as a Proposal under sub‑clause 17(1).
(3) A Significant Effect is:
(a) a change in average daily salinity at Morgan which the
Authority estimates will be at least 0.1 E.C. within 100 years after the
estimate is made; or
(b) a salinity impact which the Authority estimates will
be significant.
(4) To make an estimate referred to
in sub‑clause 18(3), the Authority must use any relevant method for making
that estimate set out in any protocols made by the Authority under clause 40.
19. Assessing
Salinity Impacts
(1) If the Authority decides
that:
(a) a Proposal referred to in sub‑clause 18(1); or
(b) an action referred to in sub‑clause 18(2),
has or may have a Significant
Effect, the Authority must:
(c) declare the Proposal or action to be an Accountable
Action; and
(d) provisionally designate the Accountable Action to be
in whole or in part either or both of a Joint work or measure and a State
Action; and
(e) estimate the salinity impacts of the Accountable
Action, using any relevant method for assessing salinity impacts set out in any
protocols made by the Authority under clause 40.
(2) If the Authority declares
a Proposal or action to be an Accountable Action, the relevant Contracting
Government must give to the Authority:
(a) all relevant information about the Accountable Action
which may assist the Authority accurately to assess its salinity impacts;
(b) in such form as the Authority may require.
20. Estimating
Salinity Credits and Salinity Debits
(1) After the Authority has
estimated the salinity impacts of an action which the Authority considers may
be an Accountable Action under clause 19, it must:
(a) subject to sub‑clause 20(2), estimate the
prospective salinity credits or salinity debits arising from that action; and
(b) designate that action to be either a Joint work or
measure or a State Action; and
(c) determine whether the prospective salinity credits or
salinity debits will be entered in Register A or Register B; and
(d) enter the action in the relevant Register.
(2) If the action referred to
in sub‑clause 20(1) is a permanent transfer of an entitlement within the
meaning of Schedule D of this Agreement, the Authority must estimate any prospective
salinity credits or salinity debits arising from that action in accordance with
clause 10 of that Schedule.
(3) The Authority must make
an estimate referred to in paragraph 20(1)(a) or sub‑clause 20(2) by
reference either:
(a) to the average annual salinity impacts over the 30
years following the date of the estimate; or
(b) some other basis for estimating salinity impacts
adopted by the Authority from time to time.
21. Attributing
Salinity Credits or Salinity Debits
(1) The Authority must attribute
salinity credits or salinity debits:
(a) arising from a Joint work or measure, in accordance
with clause 11; or
(b) arising from a State Action, to the State Contracting
Government which undertakes that action, subject to sub‑clause 21(2).
(2) Despite paragraph
21(1)(b), where:
(a) there is an agreement referred to in clause 23,
the Authority must attribute any salinity credits or salinity debits in
accordance with that agreement;
(b) two or more Contracting Governments together undertake
the relevant State Action, the Authority must attribute any salinity credits or
salinity debits arising from that action in the manner agreed between those
Contracting Governments;
(c) the relevant State Action is a permanent transfer of
an entitlement within the meaning of Schedule D of this Agreement, the
Authority must attribute any salinity credits or salinity debits arising from
that action in Register A and in accordance with clause 10 of that
Schedule.
22. When
Salinity Credits and Salinity Debits must be entered on a Register
(1) Subject to sub‑clause 16(3),
when the Authority has estimated that a salinity credit will arise from an
Accountable Action and either:
(a) the Authority declares that Accountable Action to be
effective under clause 64 of the Agreement; or
(b) if the Accountable Action is to be undertaken in
stages, the Authority declares a stage to be effective under clause 64 of
the Agreement,
the Authority must:
(c) attribute salinity credits arising from the
Accountable Action to one or more Contracting Government, in accordance with
clause 21; and
(d) enter the salinity credits on the relevant Register,
in accordance with any
relevant protocols made by the Authority under clause 40.
(2) Subject to sub‑clause 16(3),
when the Authority has estimated that salinity debits will arise from an
Accountable Action, before any Contracting Government:
(a) commences to undertake the Accountable Action; or
(b) if the Accountable Action is to be undertaken in
stages, commences to undertake any stage,
the Authority must:
(c) attribute the prospective salinity debits arising from
the Accountable Action or stage to one or more Contracting Governments in
accordance with clause 21; and
(d) enter the salinity debits on the relevant Register,
in accordance with any
relevant protocols made by the Authority under clause 40.
(3) Despite sub‑clauses 22(1)
and 22(2), if an Accountable Action is a State Action:
(a) which is not required to be declared effective under
clause 64 of the Agreement, the Authority must:
(i) attribute
any salinity credits arising from that State Action at the time when the
Authority considers that the Accountable Action is substantially complete; and
(ii) enter
the salinity credits on the relevant Register; or
(b) which comprises one or more permanent transfers of an
entitlement within the meaning of Schedule D of this Agreement, the Authority
must attribute any salinity credits or salinity debits arising from that
Accountable Action:
(i) in
the case of the permanent transfer of one entitlement, at the time when the
transfer occurs; or
(ii) in
the case of the permanent transfer of more than one entitlement, in such
proportions and at such times determined by the Authority,
in accordance with any relevant protocols made by the Authority
under clause 40.
23. Trading
and Transfers between Registers
(1) A Contracting Government
may agree to assign any or all of the salinity credits or salinity debits
attributed to that Government in Register A, to one or more of the other
Contracting Governments.
(2) When the parties to an
agreement referred to in sub‑clause 23(1) inform the Authority in writing
of that agreement and its effect, the Authority must:
(a) attribute salinity credits or salinity debits in
accordance with the agreement; and
(b) amend Register A accordingly.
(3) A Contracting Government,
with the prior written approval of the Authority, may agree to assign any or
all of the salinity credits or salinity debits attributed to that Government in
Register B, to one or more of the other Contracting Governments.
(4) The Authority must:
(a) attribute salinity credits and salinity debits in
accordance with any agreement approved by the Authority under sub‑clause 23(3);
and
(b) amend Register B accordingly.
(5) The Authority may give
effect to any written request by a Contracting Government to transfer a
salinity credit attributed to that Government:
(a) in Register A, to Register B; or
(b) in Register B, to Register A,
in accordance with any
relevant protocols made by the Authority under clause 40.
24. Review
and amendment of Register entries
(1) The
Authority:
(a) must, at intervals of no more than 5 years, and may at
any other time, re‑estimate the salinity impacts of each Accountable Action;
and
(b) if the re‑estimated salinity impacts differ from the
Authority’s most recent previous estimate of the salinity impacts, must:
(i) alter
the calculation and attribution of either or both of the salinity credits and
salinity debits; and
(ii) make
any consequential amendment to a Register,
to reflect the re‑estimated
salinity impacts.
(2) The Authority may, at any
time:
(a) designate a Joint work or measure to be a State
Action; or
(b) designate a State Action to be Joint work or measure;
or
(c) remove an Accountable Action from a Register; or
(d) determine that an Accountable Action must, in future,
be treated as more than one Accountable Action.
(3) Whenever the Authority
takes any action referred to in sub‑clause 24(1) or 24(2) it must:
(a) review the calculation and attribution of salinity
credits or salinity debits arising from the relevant Accountable Action; and
(b) make any consequential amendment to a Register,
in accordance with any
relevant protocols made by the Authority under clause 40.
PART VI — MONITORING
25. Monitoring
obligations
(1) The Authority and each
State Contracting Government must carry out such monitoring as it is required
to undertake:
(a) to fulfil its respective reporting obligations under
Part VII; and
(b) by this Part,
in accordance with any
relevant protocols made by the Authority under clause 40.
(2) A State Contracting
Government must give the Authority the results of monitoring carried out by it:
(a) since it last gave such results to the Authority, at
any time reasonably requested by the Authority; and
(b) during a financial year, by 30 November of the
following financial year.
26. End‑of‑Valley
Targets
A State Contracting Government must monitor:
(a) the degree to which it is achieving an End‑of‑Valley
Target;
(b) at the relevant site at which compliance with that
target is to be measured,
in accordance with any protocols adopted by the Authority
under clause 40.
27. Program
to monitor Accountable Actions
(1) A State Contracting
Government nominated under sub‑clause 56(5) of the Agreement, in respect
of a Joint work or measure that is an Accountable Action, must give the
Authority a proposed program to monitor the salinity impacts of that
Accountable Action within 3 months after the Government is nominated.
(2) A Contracting Government
must give to the Authority a proposed program to monitor the salinity impacts
of any State Action undertaken by that Government within 3 months after the
State Action has been completed.
(3) The Authority may:
(a) accept a program given to it under sub‑clause 27(1)
or 27(2); or
(b) accept that program with any amendment made by the
Authority; or
(c) decline to accept the program, setting out its
reasons.
(4) The Authority may, from
time to time, either:
(a) give directions to a Constructing Authority under
paragraph 61(1)(a) of the Agreement; or
(b) make protocols under clause 40,
to
ensure that any Joint work or measure or any Former salinity and drainage work
is monitored efficiently and effectively.
28. Monitoring
Accountable Actions
(1) A Contracting Government
nominated under sub‑clause 56(5) of the Agreement in respect of a Joint
work or measure must monitor the salinity impacts of that Joint work or measure
in accordance with a program accepted by the Authority under clause 27.
(2) A State Contracting
Government must monitor the salinity impacts of a State Action in the relevant
State, in accordance with a program accepted by the Authority under clause 27.
PART VII — REPORTING, AUDIT AND REVIEW
29. State
Contracting Governments
(1) A State Contracting
Government must prepare and give to the Authority a Report under this clause in
respect of each financial year, as soon as practicable after the end of that
financial year and, in any case, by 30 November in the following financial
year.
(2) A Report under sub‑clause 29(1)
must include:
(a) information about the progress of the relevant
Government in undertaking:
(i) any
Accountable Action; and
(ii) any
Proposal of which the Authority has been informed; and
(iii) any
Joint work or measure; and
(iv) any
other element of the Strategy,
for which that Government is responsible; and
(b) a report about each valley in the State for which an
End‑of‑Valley Target has been adopted, which sets out the information required
by clause 30; and
(c) a report on the reviews undertaken in the financial
year of:
(i) any
valley referred to in paragraph 29(2)(b); and
(ii) any
State Action undertaken by the relevant Government,
as required by clause 33.
30. Valley
Reports
(1) A report about a valley
referred to in paragraph 29(2)(b) must:
(a) explain how the relevant Government is implementing
the Program to meet the End‑of‑Valley Target for that valley; and
(b) describe the effect
which:
(i) implementing
that Program; and
(ii) undertaking
any other existing or proposed significant action in the valley,
has
had, or will have on the salinity, salt load and, where relevant, flow regime
at each site at which compliance with the End‑of‑Valley Target is to be
measured.
(2) A Government must comply
with any relevant protocols made by the Authority under clause 40 when
preparing a valley report under paragraph 29(2)(b).
31. Commonwealth
The Commonwealth Government must prepare and give to the
Authority a report in respect of each financial year, as soon as practicable
after the end of that financial year, and in any case by 30 November in
the following financial year, which includes information about the progress of
the Commonwealth in undertaking any work or measure for the purposes of this
Schedule, for which it has been nominated as the responsible Government under
sub‑clause 56(5) of the Agreement.
32. Authority
As soon as practicable after it receives a report from
each State Contracting Government made under sub‑clause 29(1) and where
required by clause 31, from the Commonwealth Government, and in any case
by 31 March in any year, the Authority must give to the Ministerial
Council a report which includes:
(a) a copy of each report made by a Government; and
(b) a consolidated summary of all valley reports referred
to in paragraph 29(2)(b); and
(c) a consolidated summary of the results of, and any
recommendations made in the report of, an audit conducted under clause 34;
and
(d) a program setting out the matters to be reviewed and
reported on pursuant to sub‑clause 33(1) in the next financial year; and
(e) a copy of the contents of Register A and Register B as
at 30 November in the preceding calendar year; and
(f) details of other activities which have been taken to
meet the objectives of the Strategy since the last report made under this
clause; and
(g) a report on:
(i) the
operation and implementation of existing Joint works and measures; and
(ii) the
progress of any proposed new Joint works or measures; and
(h) the results of each review carried out by a State
Contracting Government or the Authority in the preceding financial year under
clause 33; and
(i) a list of each report made by the Authority under
clause 44 or 45 in the preceding financial year.
33. Rolling
Five‑Year Reviews
(1) A State Contracting
Government must adopt and implement a program to review and report upon each:
(a) valley for which an End‑of‑Valley Target has been set
out in Appendix 1; and
(b) State Action undertaken by that Government,
at least
once in every five
years.
(2) A report prepared under
paragraph 33(1)(a) must:
(a) be based on the best information available to the
State Contracting Government at the time the report is prepared, about the
salinity, salt load and, where relevant, the flow regime at each site at which
compliance with an End‑of‑Valley Target is to be measured; and
(b) include:
(i) a
current estimate of Delayed salinity impacts in each of 2015, 2050 and 2100 if
no further action were taken to reduce or limit such salinity impacts;
(ii) an
estimate of the effect that the already completed elements of the Program of
actions will have in the current year and in each of 2015, 2050 and 2100; and
(c) the predicted effect that further implementing the
Program of actions will have in each of 2015, 2050 and 2100; and
(d) the current End‑of‑Valley Target for that valley.
(3) A report prepared under
sub‑clause 33(1)(b) must include the Authority’s estimate (based on the
best information available to the Authority at the time the report is prepared)
of the cumulative effect of the State Action on the salinity, salt load and,
where relevant, the flow regime in the upper River Murray and the River Murray
in South Australia in the current year and in each of 2015, 2050 and 2100.
(4) The Authority must adopt
and implement a program to review and report upon each Joint work and measure
at least once in every five years.
(5) A report prepared under
sub‑clause 33(4) must include the Authority’s estimate (based on the best
information available to the Authority at the time the report is prepared) of
the cumulative effect of the Joint Work on the salinity, salt load and, where
relevant, the flow regime in the upper River Murray and the River Murray in
South Australia in the current year and in each of 2015, 2050 and 2100.
(6) Any review conducted and
any report prepared under this clause must comply with any relevant protocols
adopted by the Authority under clause 40.
34. Audit
(1) The Authority must
appoint independent auditors for the purpose of carrying out an annual audit
under this clause.
(2) A person who is appointed
as one of the independent auditors referred to in sub‑clause 34(1):
(a) is appointed for such period and on such terms as are
set out in that person’s instrument of appointment; and
(b) may resign by written notice addressed to the
President; and
(c) may only be removed from office during the period of
that person’s appointment by the Ministerial Council, on the recommendation of
the Authority.
(3) The independent auditors
must together carry out an annual audit of:
(a) the report of each review conducted in the preceding
financial year by each State Contracting Government and by the Authority under
sub‑clause 33(1) and 33(3), respectively; and
(b) Register A and Register B.
(4) The independent auditors
must, in each audit, reach a view by consensus about:
(a) the performance of each State Contracting Government
and of the Authority in implementing the provisions of this Schedule in the
relevant year; and
(b) whether the Authority has fairly and accurately
recorded the salinity impacts of each action entered in Register A or Register
B during the relevant year.
(5) The independent auditors
must prepare a report setting out:
(a) the findings of each audit; and
(b) any recommendations made by the independent auditors
arising from that audit.
(6) Without limiting sub‑clause 34(5),
a report:
(a) must set out the view reached on each of the matters
referred to in sub‑clause 34(4); and
(b) may recommend to the Authority that the salinity
impacts entered in Register A or Register B for an Accountable Action be
varied; and
(c) may set out a finding that the total salinity credits
are not equal to, or do not exceed, the total salinity debits attributed to a
State Contracting Government in Register A, contrary to paragraph 16(1)(a).
35. Review
of Schedule
(1) The Authority, by 31 December
2014 and at intervals of no more than 7 years thereafter, must prepare and give
to the Ministerial Council a report upon the operation of this Schedule.
(2) Without limiting the
contents of any report prepared under sub‑clause 35(1), the Authority must
include:
(a) a summary of:
(i) the
Delayed salinity impacts; and
(ii) the
salinity impacts of every Accountable Action undertaken before the date of the
report,
within the Murray‑Darling
Basin, based on the reports prepared
under clause 33 during the preceding 5 years; and
(b) a description of any additions to, or alterations of,
the Joint Program proposed to ensure that the Basin Salinity Target is met,
since the Authority’s last report made under sub‑clause 35(1).
(3) A report prepared under
sub‑clause 35(1) may conclude that a State Contracting Government has not
complied with one or more of its obligations under this Schedule.
PART VIII — MODELS
36. Models
to be developed by the Authority
(1) Using the relevant
Benchmark Period, the Authority must develop one or more models to simulate:
(a) the salinity, salt load and flow regime, each on a
daily basis; and
(b) the economic effects on water users of the simulated
salinity, salt load and flow regime,
in the
Upper River Murray and the River Murray in South Australia.
(2) Any model developed under
sub‑clause 36(1) must be capable of predicting:
(a) any salinity impacts of Joint works and measures and
State Actions; and
(b) any Delayed salinity impacts,
at
Morgan and such other relevant locations as the Authority may determine.
(3) A State Contracting
Government must give the Authority such data about Joint works and measures,
State Actions and Delayed salinity impacts, within that State, and in such
form, as the Authority may from time to time request, to assist it in
developing a model referred to in sub‑clause 36(1).
(4) The Authority may, from time to
time, alter a model developed under sub‑clause 36(1).
37. Models
developed by State Contracting Governments
(1) Each State Contracting
Government must develop one or more models to simulate, under Baseline
Conditions, the daily salinity, salt load and flow regime, over the Benchmark
Period, at each site at which compliance with an End‑of‑Valley Target is to be
measured.
(2) A model developed by a
State Contracting Government must be capable of predicting the effect of:
(a) all Accountable Actions undertaken in the State ; and
(b) any Delayed salinity impacts,
on the
salinity, salt load and flow regime at each site at which compliance with an
End‑of‑Valley Target is to be measured
in each of 2015, 2050, 2100 and in such other years as the Authority may
determine.
(3) A State Contracting
Government may, from time to time, alter a model developed under sub‑clause 37(1).
38. Assessment
and Approval of Certain Models
(1) A model, or any
alteration to that model, developed to help the Authority or a State
Contracting Government meet reporting obligations under this Schedule, must be
assessed in accordance with this clause and any relevant protocols made by the
Authority under clause 40.
(2) The Authority must assess
any model, or any alteration to a model, made by a State Contracting
Government.
(3) The Authority must
appoint an appropriately qualified panel to assess any model, or alteration to
a model, made by the Authority.
(4) An assessment of any
alteration to a model must set out the assessor’s prediction of the
consequences of the alteration on salinity, salt load and the flow regime, each
on a daily basis, at each site at which compliance with an End‑of‑Valley Target
is to be measured, which may be affected by the alteration.
(5) After considering the
assessment made by the panel, the Authority may:
(a) approve the model or alteration; or
(b) approve that model or alteration, subject to:
(i) in
the case of a model or alteration prepared by a Government, the relevant
Government modifying the model or alteration in a way agreed between it and the
Authority; or
(ii) in
the case of a model prepared by the Authority, the Authority modifying the
model or alteration in a way it determines; or
(c) decline to approve the model or alteration ,setting
out its reasons.
(6) Within 3 months after the
Authority approves a model or alteration under paragraph 38(5)(b):
(a) the relevant Government or the Authority must modify
the model, or alteration to a model, as required under that paragraph; and
(b) in the case of a State Contracting Government, give a
copy of the modified model, or alteration to a model, to the Authority.
(7) A model in the form
initially assessed under this clause may be used temporarily for the purposes
of this Schedule until any modification to the model agreed upon or determined
under paragraph 38(5)(b) (as the case requires) has been:
(a) made by the Authority or the relevant Government; and
(b) approved by the Authority.
(8) When an alteration to a
model:
(a) is approved under paragraph 38(5)(a); or
(b) modified under sub‑clause 38(6),
the
relevant model is
altered accordingly.
39. Review
of Models
(1) A State Contracting
Government must:
(a) review any model, and any amended model, developed by
it and approved by the Authority, before 31 December 2014 and thereafter
at intervals of not more than 7 years; and
(b) propose any amendment to a model, or amended model,
which that review identifies as appropriate.
(2) The
Authority must:
(a) review any model, and any amended model, developed by
it, or developed by the Commission for the purposes of the former Schedule and
in operation immediately prior to commencement of this Schedule, before 31 December
2014 and thereafter at intervals of not more than 7 years; and
(b) propose any amendment to a model, or amended model,
which that review identifies as appropriate.
PART IX — PROTOCOLS
40. Authority’s
power to make protocols
(1) The Authority may, in
consultation with the Committee, from time to time make, amend or revoke such
protocols as it considers necessary, desirable or convenient to give effect to
this Schedule.
(2) The Authority must notify
each Contracting Government:
(a) whenever it is considering making, amending or
revoking a protocol; and
(b) of the subject matter of the proposed protocol or
amendment.
(3) A Contracting Government
may nominate a person with relevant expertise and experience to give advice to
the Authority in developing the proposed protocol or amendment.
(4) The Authority must
consider any advice given by any person nominated under sub‑clause 40(3),
before it adopts the proposed protocol or amendment.
(5) Protocols made under this
clause must not be inconsistent with any provision of the Agreement (including
its Schedules) and are void to the extent of any inconsistency.
(6) The Authority may not
delegate any power conferred on it by sub‑clause 40(1) or clause 41.
41. Examples
of possible protocols
Without limiting sub‑clause 40(1), the Authority may
make protocols:
(a) about assessing Proposals;
(b) about the nature and form of information which a State
Contracting Government must give to the Authority to enable it to estimate
salinity impacts;
(c) establishing a common method to be used to estimate
the salinity impacts of both any Proposal and any Accountable Action;
(d) establishing a method, using Baseline Conditions, to
estimate Delayed salinity impacts;
(e) establishing a method to determine any salinity
credits or salinity debits arising from a salinity impact;
(f) for administering Register A and Register B,
including:
(i) deciding
whether an Accountable Action should be entered on Register A or Register B;
(ii) how
to estimate the salinity impact of an action, for the purposes of Register B;
(iii) how
any salinity credits or salinity debits are to be apportioned between, and
attributed to, Contracting Governments;
(g) about monitoring:
(i) the
salinity impacts of an Accountable Action;
(ii) progress
made under this Schedule in meeting the Basin Salinity Target;
(iii) progress
made by a State Contracting Government in meeting any End‑of‑Valley Target
within that State;
(h) about developing and assessing models referred to in
Part VIII and using those models;
(i) about preparing, presenting and the required content
of a valley report referred to in paragraph 29(2)(b);
(j) about preparing a program for, conducting, preparing
and the required content of, a report on a review of valleys, State Actions and
Joint works and measures, referred to in clause 33;
(k) about making sure that reporting obligations and the
nature and content of reports prepared under this Schedule are consistent with
the reporting requirements of other national or regional resource management
strategies relevant to the Strategy.
PART X — DEFAULT
42. Relationship
with Part XI of the Agreement
The provisions of this Part are in addition to, and do not
derogate from, any provision in clause 86 of the Agreement.
43. Default
by a State Contracting Government
(1) The Authority must
determine that a State Contracting Government is in default for the purpose of
this clause if the Authority:
(a) decides; or
(b) receives a report of an audit under sub‑clause 34(5)
which finds,
that
the total salinity credits do not exceed, or are not equal to, the total
salinity debits attributed to that Government in Register A, contrary to
paragraph 16(1)(a).
(2) If the Authority
determines that a State Contracting Government is in default, the Authority
must:
(a) forthwith declare that the State is in default of its
obligations under this Schedule; and
(b) report the matter to the next meeting of the
Ministerial Council.
44. Exception
Reports
(1) The Authority may
determine:
(a) that the combined total of all salinity credits does
not exceed the combined total of all salinity debits attributed to a State
Contracting Government in both Register A and Register B, contrary to paragraph
16(1)(b);
(b) that a State Contracting Government has not met, or is
unlikely to meet, any End‑of‑Valley Target set out in the Appendix;
(c) that a State Contracting Government has not complied
with one or more of its obligations under this Schedule, on the basis of a
conclusion in a review report, referred to in sub‑clause 35(3).
(2) If the Authority makes a
determination under sub‑clause 44(1) it must report that fact to the next
meeting of the Ministerial Council.
(3) The Authority may revoke a
determination made under sub‑clause 44 (1) if it is satisfied that the
circumstances which led to the determination no longer exist.
45. Proposal
for remedial action
The Authority must:
(a) upon making a determination under sub‑clause 43(1)
or 44(1), consult with the relevant State Contracting Government, with a view
to remedying the situation leading to that determination; and
(b) include in the relevant report to the Ministerial
Council, the Authority’s proposal for remedying that situation.
46. Action
by a State Contracting Government
A State Contracting Government which has been the subject
of a report made by the Authority to the Ministerial Council under either
paragraph 43(2)(b) or sub‑clause 44(2), must:
(a) give a report to the next meeting of the Ministerial
Council, setting out:
(i) an
explanation of the circumstances leading to the Authority’s determination; and
(ii) what
action the Government has taken, or proposes to take, to remedy that situation;
and
(iii) if
the circumstances leading to the Authority’s determination were a situation
referred to in paragraph 44(1)(a), how long the Government predicts it will be
before that Government complies with paragraph 16(1)(b); and
(b) report annually
thereafter to the Ministerial Council on the action it has taken, or proposes
to take, to remedy the situation, until:
(i) in
the case of a determination made under sub‑clause 43(1), the Authority is
satisfied that the Government once more complies with paragraph 16(1)(a) and
reports that fact to the Ministerial Council; or
(ii) in
the case of a determination made under sub‑clause 44(1), the Authority
revokes that determination.
PART XI — FINANCE
47. State
Actions
(1) Subject to sub‑clause 47(2),
the cost of undertaking and monitoring a State Action must either:
(a) be met by the Contracting Government which undertakes
it; or
(b) if the State Action is undertaken by more than one
Contracting Government, be met by them in such proportions as they may agree.
(2) Where a Contracting
Government agrees to assign to another Contracting Government any salinity
credits or salinity debits under clause 23, any financial obligation of
the Government making the assignment under sub‑clause 47(1) will be
allocated between the parties to the agreement, in such proportions as they may
agree.
48. Joint
works or measures
(1) Subject to sub‑clause 48(2),
the provisions of clause 72 of the Agreement apply to every Joint work or
measure undertaken under this Schedule.
(2) The share of the cost of
any Joint work or measure attributable to a Contracting Government under sub‑clause 48(1)
may be varied by an agreement made under clause 23.
PART XII — TRANSITIONAL PROVISIONS
49. Former
salinity and drainage works
(1) A monitoring program
approved for a Former salinity and drainage work under clause 12 of the
former Schedule must be carried out according to its terms, unless and until
the Authority alters it.
(2) A Contracting Government
nominated under sub‑clause 56(5) of the Agreement with respect to a Former
salinity and drainage work must meet the cost of operating, maintaining and
monitoring that work, unless an agreement made by that Government under clause 23
provides otherwise.
SCHEDULE B
— APPENDIX 1 — End of Valley Targets
SCHEDULE B
— APPENDIX 2 — Authorised Joint Works and Measures
|
Description of
works
|
Location
|
Nominated
Government
|
Status
|
|
Barr Creek Drainage Diversion Scheme Saline
water diversion from Barr Creek with disposal to the Tutchewop Lakes
|
Northern Victoria approximately 20 km north of the
township of Kerang
|
Victoria
|
Former Salinity and Drainage Work
|
|
Buronga Salt Interception Scheme (part)
Groundwater pumping with disposal to Mourquong basin
|
Southwest New South Wales on the River Murray between
Mildura Weir and Mourquong
|
New South Wales
|
Former Salinity and Drainage Work
|
|
Mallee Cliffs Salt Interception Scheme
Groundwater pumping with disposal to evaporation basin adjacent to Mallee
Cliffs National Park
|
Southwest New South Wales on the River Murray
approximately 30 km east of Mildura opposite Lambert Island in Victoria
|
New South Wales
|
Former Salinity and Drainage Work
|
|
Mildura‑Merbein Salt Interception Scheme (part)
Groundwater pumping with disposal to Wargan evaporation basins
|
Northwest Victoria on the Southern side of the River
Murray between Mildura and Merbein
|
Victoria
|
Former Salinity and Drainage Work
|
|
Rufus River Groundwater Interception Scheme
Groundwater pumping with disposal to evaporation basins on the western side
of lake Victoria
|
On both sides of Rufus River between the outlet from
Lake Victoria and the River Murray
|
South Australia
|
Former Salinity and Drainage Work
|
|
Waikerie Salt Interception Scheme Groundwater
pumping with disposal to Stockyard Plain evaporation basin
|
Southern side of the River Murray from Holder Bend
(River distance 392 km) to the Toolunka Reach (River distance 371 km)
|
South Australia
|
Former Salinity and Drainage Work
|
|
Woolpunda Salt Interception Scheme Groundwater
pumping with disposal to Stockyard Plain evaporation basin
|
Both sides of the River Murray from Overland Corner to
Holder Bend in South Australia
|
South Australia
|
Former Salinity and Drainage Work
|
|
Pyramid Creek Salt Interception Scheme
Groundwater pumping with disposal to a salt harvesting pond complex
|
Along Pyramid Creek for 12 km from Flannery’s Bridge
to the Box Creek Regulator
|
Victoria
|
Basin Salinity Management Strategy Work
|
|
Bookpurnong Salt Interception Scheme
Groundwater pumping with disposal to Noora evaporation
basin
|
Eastern side of the River Murray adjacent to Lock
& Weir No 4 between Berri to the North East and Loxton to the South
|
South Australia
|
Basin Salinity Management Strategy Work
|
|
Loxton Salt Interception Scheme
Groundwater pumping with disposal to Noora evaporation
basin
|
Eastern side of the River Murray between Lock &
Weir No 4 to the North and Loxton to the South
|
South Australia
|
Basin Salinity Management Strategy Work
|
SCHEDULE C — APPLICATION OF AGREEMENT TO QUEENSLAND
Plan
for the purposes of clause 40 of the Agreement
SCHEDULE D — TRANSFERRING WATER ENTITLEMENTS AND ALLOCATIONS
PART I
— PRELIMINARY
1. Purposes
The purposes of this Schedule are, consistently with the
laws of each State, the Agreement, the National Water Initiative and policies
from time to time adopted by the Ministerial Council:
(a) to co‑ordinate the transfer between States and between
valleys within the Murray‑Darling Basin, of such water entitlements and
allocations as are, from time to time, determined by the Ministerial Council
and specified in Appendix 1, in a way which minimises any detrimental effects
upon the environment and upon other water users;
(b) to set out principles to be applied to such transfers
by the Authority, State Contracting Governments and licensing authorities;
(c) to allow protocols to be made under this Schedule to
supplement its provisions; and
(d) to require a State Contracting Government to notify
the Authority of any intervalley transfer made within that State.
2. Application
Subject to the laws of each State, this Schedule applies
to transfers referred to in paragraph 1(a), relating to water within:
(a) the upper River Murray and the River Murray in South
Australia; and
(b) regulated reaches of the Goulburn, Campaspe, Loddon
and Murrumbidgee river systems; and
(c) such other sources from time to time specified in
Appendix 1,
(d) for the purposes of either or both of exchange rate
trade and tagged trade, as the Ministerial Council may determine from time to
time.
3. Definitions
and interpretation
(1) In this Schedule and any
protocols made under it, save where inconsistent with the context:
(a) “allocation” means the volume of water
allocated for use under an entitlement in any water year (as defined in clause 2
of Schedule E) pursuant to the law of a State;
“cap on diversions” has the same meaning as in Schedule
E;
“convert”, in relation to an entitlement, means to
convert an entitlement of one type, with lower reliability into an entitlement
of another type, with higher reliability, or vice versa;
“conversion factor” means a factor determined for the
purpose of clause 12;
“designated river valley” has the meaning set out in
Schedule E;
“entitlement” means:
(i) an
entitlement to a particular share of water within the upper River Murray, the
River Murray in South Australia or regulated reaches of the Goulburn, Campaspe,
Loddon and Murrumbidgee river systems or a source referred to in paragraph 2(c)
pursuant to the law of a State; or
(ii) any
other entitlement to divert water or to receive water diverted by another from
those sources,
but does not include a State entitlement;
“environmental entitlement” means an entitlement to use
water for environmental purposes;
“exchange rate” means a rate determined for the
purposes of clause 12;
“former Schedule” means Schedule E of the former
Agreement;
“interstate transfer” means a transfer of an
entitlement or allocation made between States in accordance with this Schedule;
“intervalley transfer” means a transfer of an
entitlement or allocation made out of a valley:
(i) into
another valley; or
(ii) into
the River Murray, or vice versa;
“licensing authority” means the authority within a
State with power to make a final decision whether a transfer may be made into
or out of that State;
“relevant water authority” in relation to an
entitlement or allocation within an irrigation district, means the body
responsible for administering that entitlement or allocation in that district;
“State of destination” means the State into which a
transfer of an entitlement or allocation is, or is to be, made;
“State of origin” means the State out of which a
transfer of an entitlement or allocation is, or is to be made;
“transfer”, in relation to an allocation, includes:
(i) the
transfer of an allocation already made in a State of origin to a State of
destination, in accordance with this Schedule; and
(ii) the
transfer of an allocation within a State, according to the laws of that State;
“transfer”, in relation to an entitlement, includes:
(i) the
transfer of an entitlement, by either exchange rate trade or tagged trade,
between States, in accordance with this Schedule; and
(ii) the
transfer of an entitlement within a State, according to the laws of that State;
“Transfer Register” means the register referred to in
clause 16;
“valley” means a river valley defined in a protocol
made under paragraph 6(1)(b);
“valley account” has the meaning set out in sub‑clause 11(3);
“year” means the 12 months beginning on 1 July;
(b) a reference to a clause, sub‑clause, paragraph or
Appendix is a reference to a clause, sub‑clause, paragraph or Appendix of this
Schedule;
(c) a reference to the cap on diversions for a designated
river valley is to the long‑term diversion cap for that designated river
valley, fixed in accordance with Schedule E;
(d) a reference to “exchange rate trade” is to an
arrangement under which an entitlement in a State of origin is cancelled,
extinguished or suspended and an equivalent entitlement is created in a State
of destination, either permanently or for a fixed term;
(e) a reference to “tagged trade” is to an arrangement
under which every allocation made under an entitlement in a State of origin is
made available for use in a State of destination, either permanently or for a
fixed term.
(2) For the purposes of this
Schedule, the Ministerial Council may determine the geographic extent and
limits of the Barmah Choke.
PART II — GENERAL PRINCIPLES
4. Power
to alter entitlements and allocations to which Schedule applies
On the recommendation of the Authority, the Ministerial
Council may, from time to time, alter the entitlements and allocations to which
this Schedule applies, by amending Appendix 1.
5. Suspension
of Schedule
(1) Subject to sub‑clause 19(10),
a State Contracting Government may, from time to time, after consulting the
Ministerial Council, suspend or limit the operation of this Schedule in that
State, if the State Contracting Government considers that:
(a) the use or management of water comprised in
entitlements or allocations transferred under this Schedule have increased or
accelerated environmental degradation; or
(b) any other State has made inadequate progress towards
pricing water to recover full costs, in accordance with principles adopted by
the Council of Australian Governments; or
(c) the policies or practices applying within any other
State do not achieve the objectives of the National Water Initiative relating
to reducing barriers to trading entitlements and allocations and ensuring
competitive neutrality in the market for such entitlements and allocations.
(2) The Ministerial Council
may, from time to time, having regard to the National Water Initiative, by
resolution, suspend or limit the operation of this Schedule in relation to a
State or States.
6. Power
to make protocols
(1) The Authority may, in
consultation with the Committee, from time to time make protocols:
(a) to implement the provisions for adjusting the cap on
diversions set out in Appendix 3;
(b) about calculating salinity debits and credits for the
purposes of clause 10;
(c) defining valleys for the purposes of this Schedule and
about maintaining, crediting, debiting and giving directions for releases to be
debited to, valley accounts, pursuant to clause 11;
(d) determining one or more conversion factors and
exchange rates; about applying and using any conversion factor or exchange rate
so determined; and defining trading zones, for the purposes of clause 12;
(e) about any matter
referred to in clause 13 (Restrictions on Transfers);
(f) about any matter referred to in clause 15
(Procedures and Principles for Transfers);
(g) about any matter referred to in clause 17
(Monitoring and Reporting);
(h) to implement either or both of exchange rate trade and
tagged trade; and
(i) implementing any resolution of the Ministerial
Council about transferring environmental entitlements.
(2) The Authority must notify
each Contracting Government:
(a) whenever it is considering making, amending, reviewing
or revoking a protocol; and
(b) of the subject matter of any proposed protocol,
amendment, review or revocation.
(3) A Contracting Government
may nominate a person with relevant expertise and experience to give advice to
the Authority in preparing, amending, reviewing or revoking a protocol.
(4) The Authority must
consider any advice given by a person nominated under sub‑clause 6(3),
before it makes, amends or revokes a protocol.
(5) A protocol made under
this clause:
(a) must, subject to clause 2, indicate whether it applies
to exchange rate trade, tagged trade or both; and
(b) must not be inconsistent with any provision of the
Agreement (including its Schedules) and is void to the extent of any
inconsistency.
(6) The
Authority may:
(a) amend, review or revoke any protocol made under sub‑clause 6(1);
and
(b) review any such protocol at the request of a
Contracting Government.
(7) The Authority may not
delegate any power conferred on it by sub‑clauses 6(1) and (6).
PART III — MATTERS RELATING TO ADMINISTRATION OF THE
AGREEMENT
7. Adjustment
of delivery of State entitlements
The Authority must, from time to time, adjust the delivery
of State entitlements under Part XII of the Agreement to take into
account, and to give effect to, transfers of entitlements and allocations
between States, in accordance with Appendix 2.
8. Adjustment
of cap on diversions
(1) Subject to paragraph
16(7)(a), the Authority must, from time to time, adjust the cap on diversions
for each designated river valley to reflect interstate and intervalley
transfers of entitlements or allocations under this Schedule, in order to
ensure that diversions within the Murray‑Darling Basin do not exceed the total
diversions under baseline conditions referred to in Schedule E.
(2) For the purpose of making
any calculation under clause 12 of Schedule E, the relevant annual
diversion target for that year must either be increased or reduced, as the case
requires, by the volume determined in accordance with Appendix 3.
9. Adjustment
of State financial contributions
(1) In every year, the
Authority must, based on information contained in the Transfer Register,
calculate the amount by which any sum payable by a State Contracting Government
in any year under Part IX of the Agreement, should be varied to reflect transfers
of entitlements made by exchange rate trade from river reaches regulated by
works subject to the Agreement, into or out of that State in the preceding year
and inform the Ministerial Council of that amount for the purposes of clause 72
of the Agreement.
(2) The Ministerial Council
may add or subtract, as the case requires, any amount determined under sub‑clause 9(1)
to or from the sum payable by a State Contracting Government in the next
following year, under Part IX of the Agreement.
(3) Despite the provisions of
Part IX of the Agreement, a State Contracting Government must pay any sum
as varied in accordance with sub‑clause 9(2).
Note:
(a) Where an interstate transfer, made either
by exchange rate trade or tagged trade, relates to water in a tributary of the
River Murray, the recovery of State bulk water charges relating to that water
is a matter for agreement between the relevant States.
(b) Where tagged trade occurs, a transferee
in the State of destination holds an entitlement which continues to exist in
the State of origin. A State of origin might recover bulk water charges either
directly from the holder of the entitlement in the State of destination, or
through the relevant water authority in that State, as agreed between the
parties.
10. Accounting
for salinity impacts
(1) An entitlement or
allocation can only be transferred under this Schedule if the proposed transfer
is consistent with Schedule B.
(2) Consistently with the law
of the relevant State, a licensing authority within that State must attach such
conditions to any transfer into or out of that State which the licensing
authority considers necessary or desirable to ensure that the State meets its
obligations under Schedule B.
(3) The Authority must
attribute salinity credits and debits arising from the dilution effects of
interstate transfers of entitlements or allocations to the State of origin and
State of destination, in equal shares and in accordance with any protocol made
under paragraph 6(1)(b).
(4) The Authority must attribute
salinity credits and debits arising from changes to salt accession attributable
to any transfer of entitlements or allocations, or changes to the use of water
arising from such transfers, to the State in which the change occurs and in
accordance with any protocol made under paragraph 6(1)(b).
PART IV — OPERATIONAL PRINCIPLES AND ADMINISTRATION
11. Delivery
of water and valley accounts
(1) The Authority must ensure
that water made available in each valley reflects the transfers of entitlements
and allocations made under this Schedule, in accordance with any protocol made
under paragraph 6(1)(c).
(2) The valley accounts
maintained under sub‑clause 11(2) of the former Schedule immediately prior
to commencement of this Schedule are continued in existence.
(3) For the purpose of this
clause, the Authority must maintain a valley account referred to in sub‑clause
(2):
(a) for each tributary in respect of which there are
entitlements or allocations which may be traded under this Schedule; and
(b) in accordance with any protocol made under paragraph
6(1)(c).
(4) The Authority may:
(a) in accordance with any protocol made under paragraph
6(1)(c), direct that water standing to the credit of a valley account for any
valley be used for any purpose to which the Authority may have regard under sub‑clause 98(3)
or 98(4) of the Agreement; and
(b) amend or cancel any such direction at any time.
(5) A State Contracting
Government must implement any direction given under paragraph 11(4)(a) in
accordance with any protocol made under paragraph 6(1)(c).
(6) With the consent of the
State Contracting Government to whom a direction is given under sub‑clause 11(4),
a direction may result in a valley account being overdrawn.
12. Conversion
factors and exchange rates
(1) Subject to sub‑clause 12(2),
the Authority may, by a protocol made under paragraph 6(1)(d), determine or
alter one or more:
(a) conversion factors to be applied when converting an
entitlement of one type into an entitlement of another type, in the same
valley; and
(b) exchange rates to be applied under this Schedule:
(i) to
any transfer of an entitlement by exchange rate trade; and
(ii) to
any transfer of an entitlement by tagged trade or to any transfer of an
allocation,
and must publish any such conversion factors and exchange
rates in such manner as it thinks fit.
(2) An exchange rate referred
to in subparagraph 12(1)(b)(ii) must only be made to take into account either
or both of:
(a) any changes in distribution losses; and
(b) any differences in utilization,
resulting
from the transfer.
(3) A conversion factor and
an exchange rate determined or altered by the Authority operates prospectively
and cannot be used to alter:
(a) a previous entry made in any valley account; or
(b) any previous adjustment made to State entitlements or
the cap on diversions, or the previous calculation of State financial
contributions,
under
this Schedule.
(4) A protocol referred to in
sub‑clause 12(1):
(a) must specify how any conversion factor or exchange rate
is to be applied; and
(b) may establish one or more zones within which an
exchange rate will not be applied to specified types of entitlement; and
(c) must attempt to minimise any adverse effect that any
conversion or any type of transfer may have on:
(i) water
users, other than the transferor or transferee; and
(ii) the
environment; and
(d) may provide for taking account of:
(i) any
losses which may occur during transmission of an entitlement; and
(ii) any
change in the level of reliability of supply of an entitlement resulting from
the conversion or transfer; and
(iii) the
extent to which the volume of water represented by an entitlement has been
used; and
(iv) any
adverse effect which the conversion or transfer may have on the environment; and
(v) any
other matter which the Authority considers appropriate.
(5) Each State Contracting Government
must ensure that any licensing authority within the State applies any relevant
conversion factor or exchange rate determined under this clause, in accordance
with any protocol made under paragraph 6(1)(d).
13. Restrictions
on transfers
(1) Subject to sub‑clause 13(4),
a protocol made under paragraph 6(1)(e) may prohibit, restrict or regulate the
transfer of a specified type of entitlement.
(2) Without
limiting sub‑clause 13(1), a protocol:
(a) must, subject to other provisions of this clause,
facilitate the transfer of entitlements or allocations between hydrologically
connected systems, in accordance with this Schedule; and
(b) must be consistent with any principles relating to
markets in, and trading of, water entitlements and allocations, from time to
time adopted by the Ministerial Council; and
(c) must not hinder the ability of the Authority to
regulate and manage the flow of water within the upper River Murray and the
River Murray in South Australia, in accordance with the Agreement; and
(d) must not purport to affect or interfere with State
responsibilities for managing water resources, except as provided for in the
Agreement.
(3) Until the Ministerial
Council resolves otherwise an entitlement must not be transferred into or out
of the Lower Darling Valley.
(4) A State Contracting
Government may, consistently with the law of that State, from time to time
prohibit, restrict or regulate the transfer of any type of entitlement or
allocation in a way which is consistent with any principles relating to markets
in, and trading of, water entitlements, from time to time adopted by the
Ministerial Council.
(5) Each State Contracting Government
must, consistently with the law of that State, take such action within the
State as may be necessary to ensure that any prohibition, restriction or
regulation made or imposed by the Authority or the State Contracting Government
is complied with and observed by each authority and other person in that State.
14. Environmental
and supply considerations
(1) The Authority must
maintain a record of the environmental assessment criteria and processes from
time to time applied by each Contracting Government in respect of applications
to transfer entitlements or allocations.
(2) Each Contracting
Government must:
(a) notify the Authority of any change to the
environmental assessment criteria and processes contained in the record
referred to in sub‑clause 14(1) with respect to that Government, as soon
as practicable after that change is made; and
(b) propose any consequential alterations to the record
referred to in sub‑clause 14(1) which it considers necessary or desirable.
(3) Each Contracting
Government must, by 31 July in every year, give the Authority a report
setting out all changes referred to in paragraph 14(2)(a) with respect to that
Government, made in the previous year.
(4) The Authority may, from
time to time, amend the record referred to in sub‑clause 14(1) in any way
it considers necessary or desirable, in order to reflect the relevant
environmental assessment criteria and processes of a Contracting Government.
(5) Each State Contracting
Government must ensure that any licensing authority within the State:
(a) takes into account any policies from time to time
adopted by the Ministerial Council about:
(i) managing
environmental flows; and
(ii) managing
the delivery of State entitlements, in the light of limits to the capacity of
the River Murray system; and
(iii) any
other matters relevant to the purposes of this Schedule, when considering
whether or not to approve any application to transfer an entitlement or
allocation under this Schedule; and
(b) submits any such application to the relevant
environmental assessment criteria and processes from time to time set out in
the record referred to in sub‑clause 14(1); and
(c) decides whether or not to grant the application in
accordance with:
(i) the
policies referred to in paragraph 14(5)(a); and
(ii) the results
of applying the criteria and processes referred to in paragraph 14(5)(b); and
(d) imposes comparable conditions about environmental
matters on any entitlement or allocation transferred into that State under this
Schedule as it would impose on an entitlement or allocation granted or
transferred within that State to use the same amount of water for the same
purpose at the same location.
15. Procedures
and principles for transfers
(1) The Authority may, by a
protocol made under paragraph 6(1)(f), specify processes and principles to be
followed by the Authority and, consistently with State law, each State
Contracting Government and licensing authority, to record and to facilitate the
transfer of entitlements and allocations, subject to the other provisions of
this Schedule.
(2) Each State Contracting
Government must, consistently with the law of that State, take such action
within the State as may be necessary to ensure that processes and principles
referred to in this Schedule and in any protocol made under paragraph 6(1)(f)
are applied and observed by each authority and other person in that State.
(3) Without limiting sub‑clause 15(1),
a protocol made under paragraph 6(1)(f) may:
(a) apply to:
(i) interstate
transfers;
(ii) intervalley
transfers;
(iii) transfers
made across the Barmah Choke; and
(b) specify procedures,
which are consistent with State law, for:
(i) ensuring,
where appropriate, that an entitlement in a State of origin is cancelled or
extinguished before, or at the same time as, an equivalent entitlement is
created in the State of destination;
(ii) processing
applications to transfer entitlements and allocations;
(iii) confirming
the ability of the Authority to deliver water pursuant to any proposed
transfer;
(iv) notifying
the Authority when a transfer has occurred; and
(c) subject to clause 16, require the keeping of
registers and accounts of transfers.
16. Transfer
Register
(1) In this clause:
“base valley” means a valley referred to in sub‑clause 3(2)
of Schedule E.
(2) The transfer register
kept under clause 16 of the former Schedule immediately prior to
commencement of this Schedule is continued in existence.
(3) The Authority must
maintain the register referred to in sub‑clause (2) so that it sets out the
following information with respect to conversion of entitlements and each
intervalley transfer of an entitlement (and, if the Authority so resolves, each
allocation) occurring within the area referred to in clause 2:
(a) The following information about the place of origin:
(i) The
volume in megalitres and type of any entitlement converted into an entitlement
of another type.
(ii) The
volume in megalitres of any entitlement created by such conversion, after
applying the relevant conversion factor, and the type of the new entitlement.
(iii) The
volume in megalitres of any allocation or entitlement transferred.
(iv) The
identifying number of the allocation or entitlement transferred.
(v) The
type of entitlement to which the transfer relates.
(vi) The
base valley from which the transfer was made.
(vii) The
designated river valley from which the transfer was made.
(viii) The
date on which either:
• the entitlement transferred was
cancelled, extinguished or suspended at the place of origin; or
• any allocation under an
entitlement is permanently made available in the State of destination; or
• the transfer of the allocation was
authorised,
as a result of the transfer, as the case requires.
(b) The following information about the place of
destination:
(i) The
exchange rate applied to any transfer.
(ii) The
volume in megalitres of the allocation or entitlement transferred, after
applying the relevant exchange rate.
(iii) The
type of entitlement into which the allocation or entitlement transferred has
been converted.
(iv) The
base valley into which the transfer was made.
(v) The
designated river valley into which the transfer was made.
(vi) The
date upon which either:
• any new entitlement was created at
the place of destination; or
• the use of the transferred allocation
was authorised,
as a result of the transfer, as the case requires.
(vii) The
identifying number of any new entitlement.
(viii) If the
transfer was made between States, an identifying interstate transfer number,
allocated to the transfer by the Authority.
(c) The effective date of the transfer, being the later of
the dates referred to in sub‑paragraphs 16(3)(a)(viii) and 16(3)(b)(vi).
(4) Pursuant to the
obligations set out in paragraph 13(1)(c) of Schedule E, each State Contracting
Government must ensure that the Authority promptly receives all such
information relating to transfers within, to or from the territory of that
State, as may be necessary to keep the Transfer Register up‑to‑date.
(5) The Authority must, after
the end of each year, arrange for an independent auditor:
(a) to examine whether there is any discrepancy between
information provided by each State Contracting Government under sub‑clause 16(4),
information provided under clause 8 of Appendix 3 to this Schedule and
information set out in the Transfer Register; and
(b) to make recommendations to the Ministerial Council, on
or before September 30 in the following year, about any amendment to the
Transfer Register as the auditor thinks desirable, in view of any such
discrepancy.
(6) After considering any
recommendation made by an independent auditor under paragraph 16(5)(b), the
Ministerial Council may require the Authority to make any alteration to the
Transfer Register, which the Ministerial Council considers appropriate.
(7) The Authority must
recalculate:
(a) any adjustment to the cap on diversions or any annual
diversion target, pursuant to clause 8; or
(b) any calculation pursuant to clause 9,
in
respect of which
relevant alteration has been made to the Transfer Register under sub‑clause 16(6).
17. Monitoring
and reporting
(1) Unless the Authority
determines otherwise, by 30 June in every year, commencing in 2007, each
State Contracting Government must, in accordance with any protocol made under
paragraph 6(1)(g), prepare and give to the Authority a report on measures taken
in that State in the preceding year:
(a) to manage any adverse environmental effects
attributable to interstate transfers of entitlement or allocations into and out
of that State; and
(b) to implement and monitor environmental assessment
criteria and procedures for the use of water transferred into the State on land
at its destination.
(2) By 31 December in
every year, the Authority must, in accordance with any protocol made under
paragraph 6(1)(g), prepare and give to each State Contracting Government a
report setting out the following information for the preceding year:
(a) the total volume of transfers of entitlements and
allocations into and out of each State; and
(b) the exchange rates applied to interstate transfers
referred to in paragraph 17(2)(a); and
(c) any adjustment to the delivery of a State’s
entitlement made under clause 7; and
(d) any adjustment to the contribution of a State
Contracting Government approved by the Ministerial Council under sub‑clause 9(2);
and
(e) any adjustment to the cap on diversions for a
designated river valley made under clause 8.
18. Review
of interstate transfers
(1) The Authority must
prepare and give to the Ministerial Council and the Basin Community Committee a
report on:
(a) the operation of this Schedule; and
(b) the markets for interstate transfers of entitlements
and allocations,
respectively, by
1 July 2010 and thereafter, either:
(c) by the end of every third year; or
(d) in the case of the market for entitlements, promptly
after at least 8% of the volume of entitlements to use water for irrigation in
any area has been permanently transferred interstate since the last report on
that market was made under this clause; or
(e) in the case of the market for allocations, promptly
after at least 8% of the volume of allocations to use water for irrigation in
any area has been transferred interstate in the preceding 12 months,
whichever
is sooner.
(2) A report referred to in
sub‑clause 18(1) must deal with delivery losses, the accuracy or otherwise
of water accounting measures and any other matter which the Ministerial Council
may, from time to time direct, or which the Authority considers appropriate.
(3) For the purpose of sub‑clause 18(1),
“area” means any irrigation area administered by a relevant water authority, or
any part of such an area which is separately administered from other parts.
19. Dispute
resolution
(1) This clause applies to
any dispute arising under this Schedule between:
(a) one or more of the State Contracting Governments; and
(b) one or more State Contracting Government and the
Authority,
(c) each of whom is a party for the purpose of this
clause.
(2) A dispute arises at the
time when one party notifies the other party or parties in writing that there
is a dispute about a matter specified in the notice.
(3) If a dispute arises, the
parties must seek, in good faith, to resolve the dispute expeditiously by
negotiations between them.
(4) If a dispute is not
resolved within 60 days, a party to the dispute may give written notice to the
other party or parties requiring the matter to be referred to a dispute panel:
(a) comprising at least two members agreed between the
parties; or
(b) if they cannot agree, comprising an equal number of
members appointed by each party to the dispute.
(5) A dispute panel must meet
within 7 days after it is appointed, or within such other period agreed by the
parties.
(6) A unanimous decision of
the dispute panel is binding upon the parties.
(7) If the dispute panel does
not reach a unanimous decision:
(a) any dispute to which the Authority is a party must be
referred to the Ministerial Council for resolution; and
(b) any dispute between State Contracting Governments may
be referred by a party to an arbitrator, as if it were a matter requiring
resolution by an arbitrator under clause 140 of the Agreement.
(8) Each party must meet its
own costs in relation to any dispute.
(9) Each party must
contribute equally to the cost of any dispute panel or arbitrator, unless the
dispute panel or arbitrator, as the case requires, directs otherwise.
(10) Each State Contracting
Government undertakes to try to resolve any difference between it and any other
State Contracting Government about a matter referred to in paragraph 5(1)(a),
(b) or (c), in accordance with sub‑clauses 19(1) — 19(6) before consulting
the Ministerial Council under sub‑clause 5(1).
SCHEDULE D — APPENDIX 1 — Entitlements
and Allocations
(see clause 4)
|
LEGISLATION
|
CATEGORY
|
SOURCE
|
|
Water Management Act 2000 (NSW)
|
High Security Access Licence
|
Murrumbidgee Regulated and Murray Valley Regulated
|
|
General Security Access Licence
|
|
Conveyance Access Licence
|
|
Local Water Utility Access Licence
|
|
Allocation under any type of water access licence
|
|
Water Act 1989 (Vic)
|
Water licence granted under section 51
|
River Murray and Goulburn, Campaspe and Loddon river
systems
|
|
Irrigation water right
|
|
Bulk entitlement
|
|
Sales allocation
|
|
Water (Resource Management) Act 2005 (Vic)
|
High‑reliability water share
|
|
Lower reliability water share
|
|
Allocation under a water share
|
|
Allocation under an environmental entitlement
|
|
Natural Resources Management Act 2004 (SA)
|
Water access entitlement under a water licence
|
River Murray Prescribed Watercourse
|
|
Water allocation
|
|
Water Resources Act 2007 (ACT)
|
Water access entitlement
|
Murrumbidgee and tributaries within the ACT
|
|
Corresponding water access entitlement
|
SCHEDULE
D — APPENDIX 2 — Adjusting Delivery of State Entitlements under Part XII
of the Agreement
(see clause 7)
PART I — RULES WHICH APPLY AT ALL TIMES
1. Interstate
transfers of entitlements
(1) Subject to sub‑clause 1(2),
the Authority must adjust the delivery of a State entitlement as a result of
each interstate transfer of an entitlement, in accordance with Rules 1‑4:
(a) in the case of exchange rate trade, by the volume of
the allocations which would have been made to that entitlement in the State of
origin in every year, if the entitlement had not been transferred; and
(b) in the case of tagged trade, by the volume of water
used by the transferee in each year.
(2) For the purpose of
calculating the volume referred to in paragraph 1(1), for exchange rate trade,
if the transferor seeks to transfer an entitlement with lower reliability, the
Authority must first apply the relevant conversion factor that would be applied
to convert that entitlement into a type of entitlement with higher reliability,
in the valley of origin.
(3) An adjustment made under
sub‑clause 1(1), must be calculated from the effective date of the
relevant transfer.
(4) The Authority must alter
its procedures for delivering State entitlements to reflect any adjustments
made under sub‑clause 1(1), in the manner set out in any protocol made
under paragraph 6(1)(e).
Rule 1: Transfers
into South Australia
The Authority must increase:
(a) water deliveries to South Australia; and
(b) the volume provided to South Australia by the State
out of which the transfer was made,
but must not increase the priority
of delivering the volume represented by any transfer.
Rule 2:
Transfers out of South Australia
The Authority must decrease:
(a) water deliveries to South Australia; and
(b) the volume provided to South Australia by the State
into which the transfer was made.
Rule 3: Transfers
out of New South Wales into Victoria
The Authority must, in relation to
Hume Reservoir:
(a) decrease the volume which may be delivered to
New South Wales; and
(b) increase the volume which may be delivered to
Victoria.
Rule 4: Transfers out
of Victoria into New South Wales
The Authority must, in relation to
Hume Reservoir:
(a) decrease the volume which may be delivered to
Victoria; and
(b) increase the volume which may be delivered to
New South Wales.
2. Interstate
transfers of allocations
(1) The Authority must adjust
a State entitlement as a result of each interstate transfer of an allocation:
(a) by the adjusted volume of that transfer; and
(b) in accordance with Rules 5 — 8 set out below.
(2) The Authority must alter
its procedures for delivering State entitlements to reflect any adjustment made
under sub‑clause 2(1),in accordance with any protocol made under paragraph
6(1)(f) of this Schedule.
Rule 5: Transfers
into South Australia
The Authority must increase:
(a) water deliveries to South Australia; and
(b) the volume provided to South Australia by the State
out of which the transfer was made.
Rule 6: Transfers
out of South Australia
The Authority must decrease:
(a) water deliveries to South Australia; and
(b) the volume provided to South Australia by the State
into which the transfer was made.
Rule 7: Transfers
out of New South Wales into Victoria
The Authority must, in relation to
Hume Reservoir:
(a) decrease the volume which may be delivered to
New South Wales; and
(b) increase the volume which may be delivered to
Victoria.
Rule 8: Transfers
out of Victoria into New South Wales
The Authority must, in relation to
Hume Reservoir:
(a) decrease the volume which may be delivered to
Victoria; and
(b) increase the volume which may be delivered to
New South Wales.
PART II — RULES WHICH ONLY APPLY IN PERIODS WHEN
THERE IS SPECIAL ACCOUNTING
3. Accounting
under clause 125 of the Agreement
During any period of special accounting, the Authority, in
each month, must increase and decrease the account kept for a State:
(a) under paragraph 125(a) of the Agreement, in accordance
with Rules 9 and 10 set out below; and
(b) under paragraph 125(b) of the Agreement, in accordance
with Rules 11 and 12 set out below.
Rule 9: New South
Wales
The Authority must:
(a) increase the account by the sum of adjustments
made in that month for New South Wales under rules 1, 3, 5 and 7; and
(b) decrease the account by the sum of adjustments
made in that month for New South Wales under rules 2, 4, 6 and 8.
Rule 10: Victoria
The Authority must:
(a) increase the account by the sum of adjustments
made in that month for Victoria under rules 1, 4, 5 and 8; and
(b) decrease the account by the sum of adjustments
made in that month for Victoria under rules 2, 3, 6 and 7.
Rule 11: New South
Wales
The Authority must:
(a) increase the account by the sum of adjustments
made in that month for New South Wales under rules 2 and 6; and
(b) decrease the account by the sum of adjustments
made in that month for New South Wales under rules 1 and 5.
Rule 12: Victoria
The
Authority must:
(a) increase the account by the sum of adjustments
made in that month for Victoria under rules 2 and 6; and
(b) decrease the account by the sum of adjustments
made in that month for Victoria under rules 1 and 5.
SCHEDULE
D — APPENDIX 3 — Adjusting Cap on Diversions
(see clause 8)
1. Definitions
For the purposes of this Appendix:
cap required, with respect to a unit of a type of
entitlement, means the product of that unit multiplied by the appropriate cap
factor referred to in paragraph 8(c).
effective date means the beginning of the year in
which this Appendix comes into effect.
PART I — ADJUSTING FOR TRANSFERRED ALLOCATIONS
2. Adjusting
cap for transferred allocations
The annual diversion target for a designated river valley,
referred to in sub‑clause 12(1) of Schedule E, must either be increased or
reduced, as the case requires, by the volume of any interstate or intervalley
transfers of allocations into or out of that designated river valley in that
year, multiplied by the appropriate cap transfer rate set out in Table 1 of a
protocol made under paragraph 6(1)(a) of the Schedule.
PART II — ADJUSTING FOR ENTITLEMENTS TRANSFERRED BY
TAGGED TRADE
3. Cap
adjustment for tagged trade
The annual diversion target for a designated river valley
referred to in sub‑clause 12(1) of Schedule E must be:
(a) increased by the volume of water diverted in that
designated river valley in that year, which is attributable to entitlements
tagged to another designated river valley; and
(b) reduced by the volume of water attributable to
entitlements tagged to that designated river valley, which is diverted in any
other designated river valley in that year.
PART III — ADJUSTING FOR ENTITLEMENTS TRANSFERRED
BETWEEN 1 JULY 1994 AND THE EFFECTIVE DATE, USING EXCHANGE RATES
4. Interim
register
The Authority must establish and maintain an interim
register which records the volume of any entitlement transferred from a
designated river valley to another designated river valley during each year
between 1 July 1994 and the effective date.
5. Adjusting
annual diversion targets
Each year, the Authority must calculate the adjustment to
the annual diversion target for a designated river valley for transfers
recorded on the interim register referred to in clause 4, by:
(a) multiplying the cumulative volume of every
entitlement of a particular type transferred into the designated river valley
between 1 July 1994 and the earlier of the beginning of that year and the
effective date, by the appropriate cap transfer rate set out in Table 2 of a
protocol made under paragraph 6(1)(a) of the Schedule; and
(b) multiplying the cumulative volume of every
entitlement of a particular type transferred out of the designated river valley
between 1 July 1994 and the earlier of the beginning of that year and the
effective date, by the appropriate cap transfer rate; and
(c) subtracting the product of (b) from the product
of (a).
PART IV — ADJUSTING FOR ENTITLEMENTS TRANSFERRED OR
CONVERTED AFTER THE EFFECTIVE DATE, USING EXCHANGE RATES
6. Object
of Part
The object of this Part is, subject to sub‑clause 8(1)
of the Schedule, to minimise the impact of transfers or conversion of
entitlements on entitlements held by third parties, by endeavouring to ensure
that:
(a) the proportion of the cap associated with each unit of
a particular type of entitlement remains the same after an entitlement has been
transferred or converted as it was before that transfer or conversion; and
(b) the annual diversion target for each State and
designated river valley referred to in sub‑clause 12(1) of Schedule E is
adjusted accordingly.
7. Operation
of Part
This Part applies to entitlements transferred or converted
after the effective date.
8. Calculating
increases in cap required
Based on information set out in the Transfer Register, the
Authority must make the following calculations for every year, in respect of
each designated river valley, as a consequence of transfers between that designated
river valley and every other designated river valley:
(a) The volume of each type of entitlement into
which former entitlements were transferred or converted, as recorded under sub‑paragraphs
16(3)(b)(ii) and 16(3)(a)(ii) of this Schedule.
(b) The net increase in each type of entitlement,
by subtracting the volume of that type of entitlement recorded under sub‑paragraphs
16(3)(a)(iii) and 16(3)(a)(i) of this Schedule from the volume of that type of
entitlement calculated under paragraph 8(a).
(c) The net increase in the cap required for each
type of entitlement , by multiplying the result of the calculation in paragraph
8(b) by the relevant cap factor set out in Table 3 of a protocol made under
paragraph 6(1)(a) of the Schedule.
9. Adjusting
annual diversion targets
(1) The Authority must, in
each year, alter each long‑term diversion cap to reflect the results of
transferring entitlements, pursuant to paragraph 10(2)(a) of Schedule E, by
adjusting annual diversion targets.
(2) The Authority must adjust
each annual diversion target by following any protocol made by the Authority
under paragraph 6(1)(a) of the Schedule, to implement the Stages set out below.
Stage 1
Adjust annual diversion targets, as far as possible by
allocating to the cap required in a designated river valley of destination, so
much of the volume of cap no longer required in the designated river valley of
origin as is required in the designated river valley of destination. A separate
calculation must be made for the interaction between each designated river
valley and every other designated river valley, based on information collated
from the Transfer Register.
Stage 2
Pool any cap surpluses and deficits calculated under Stage 1
in relation to each designated river valley, in order to reduce any shortfalls
in each designated river valley.
Where lower reliability entitlements have been converted to
higher reliability entitlements within a designated river valley, the net
effect of that conversion on the cap attributable to that valley must be
included in the pool. However:
(a) a shortfall within a designated river valley caused by
such conversions cannot be reduced by attributing a surplus existing in another
designated river valley; and
(b) the volume pooled with respect to a designated river
valley cannot exceed the sum of the deficits arising in other designated river
valleys, as a result of transfers between that designated river valley and
other designated river valleys.
Stage 3
(a) Calculate any cap surplus resulting from Stage 2 for
each designated river valley.
(b) Then allocate any of that cap surplus that is
attributable to interstate transfers into or from that designated river valley
to the environment, by
(c) reducing the annual diversion target for that designated
river valley by the portion of the surplus referred to in paragraph (b).
The allocation referred to in paragraph (b) must only
apply in the year in which it is made and will not create an entitlement to
draw a comparable volume of water from any storage in the Basin. Progressively
reducing annual diversion targets will, however, eventually allow more water to
flow downstream.
Stage 4
Calculate the adjustment to each annual diversion target for
each designated river valley by determining the sum of the total adjustments
made under Stages 1, 2 and 3.
SCHEDULE
E — CAP ON DIVERSIONS
1. Purposes
The purposes of this Schedule are:
(a) to establish long‑term caps on the volume of surface
water used for consumptive purposes in river valleys within the Murray‑Darling
Basin (including, without limitation, water from waterways and distributed
surface waters) in order to protect and enhance the riverine environment; and
(b) to set out action to be taken by the Ministerial
Council, the Authority and State Contracting Governments to quantify and comply
with annual diversion targets; and
(c) to prescribe arrangements for monitoring and reporting
upon action taken by State Contracting Governments to comply with annual
diversion targets.
2. Definitions
(1) In this Schedule, except
where inconsistent with the context:
“baseline conditions” means:
(a) in the case of New South Wales and Victoria, means the
level of water resource development for rivers within the Murray‑Darling Basin
as at 30 June 1994 determined by reference to:
(i) the
infrastructure supplying water; and
(ii) the
rules for allocating water and for operating water management systems applying;
and
(iii) the
operating efficiency of water management systems; and
(iv) existing
entitlements to take and use water and the extent to which those entitlements
were used; and
(v) the
trend in the level of demand for water within and from the Murray‑Darling Basin
at that date; and
(b) in the case of Queensland, means the conditions set
out for each river valley in the Resource Operation Plan first adopted by the
Government of Queensland in that river valley and published in the Queensland
Government Gazette.
“Cap Register” means the Register referred to in sub‑clauses 13(7)
and 13(8).
“designated river valley” means a river valley or water
supply system referred to in, or designated under, sub‑clause 3(1).
“diversions”, with respect to a river valley,
means the volume of surface water used for consumptive purposes determined in
accordance with the formula entered in the Diversion Formula Register for that
river valley.
“Diversion Formula Register” means the Register
referred to in paragraph 4(1)(b).
“former Schedule” means Schedule F of the former
Agreement.
“historical data” means data relevant to the period
from 1 July 1983 to 30 June 1994, or such other period as the
Authority may from time to time determine.
“river valley” means a river valley within the Murray‑Darling
Basin referred to in sub‑clause 3(2).
“water year” in relation to a river valley or a water
supply system means the relevant 12 month period applicable to the allocation
of water entitlements and measurement of diversions in that river valley or
water supply system.
(2) In this Schedule:
(a) a reference to the “Government of a State” includes a
reference to the Government of the Australian Capital Territory;
(b) a reference to a “State Contracting Government”
includes a reference to the Government of the Australian Capital Territory;
(c) a reference to “State” includes the Australian Capital
Territory.
3. River
Valleys and Designated River Valleys
(1) Subject to sub‑clause 3(3),
the river valleys or water supply systems listed in Appendix 1 are “designated
river valleys” for the purposes of this Schedule.
(2) Subject to sub‑clause 3(3),
the river valleys listed in Appendix 2 are “river valleys” for the purposes of
this Schedule.
(3) The Ministerial Council
may, from time to time:
(a) amend the description of:
(i) any
designated river valley described in Appendix 1; or
(ii) any
river valley in Appendix 2;
(b) designate, for the purposes of this Schedule, any
river valley or water supply system not referred to in Appendix 1; or
(c) add any river valley to those set out in Appendix 2.
4. Diversion
Formula Register
(1) The Authority must:
(a) determine a formula for calculating diversions within
each river valley for the purposes of this Schedule; and
(b) maintain a Diversion Formula Register which records
each formula determined under paragraph (a) and the river valley to which
the formula relates.
(2) The Authority or States,
as may be appropriate, must use the formula entered in the Diversion Formula
Register with respect to a river valley for the purpose of:
(a) developing or approving any analytical model under
clause 11;
(b) making any calculation under clause 12;
(c) preparing any report required under clause 13;
and
(d) maintaining the Cap Register.
(3) The Authority may from
time to time amend:
(a) any formula determined under paragraph 4(1)(a); and
(b) any entry in the Diversion Formula Register.
5. Long‑term
diversion cap for New South Wales
(1) The Government of New
South Wales must ensure that diversions within each designated river valley in
New South Wales do not exceed diversions under baseline conditions in that
designated river valley, as determined by reference to the model developed
under sub‑clause 11(4).
(2) In calculating baseline
conditions for the Border Rivers, allowance must be made for such annual volume
as the Ministerial Council may, from time to time, determine in view of the
special circumstances applying to Pindari Dam.
6. Long‑term
diversion cap for Victoria
(1) The Government of
Victoria must ensure that diversions within each designated river valley in
Victoria (including the upper River Murray) do not exceed diversions under baseline
conditions in that designated river valley, as determined by reference to the
model developed under sub‑clause 11(4).
(2) In calculating baseline
conditions for either or both of the Goulburn/Broken/Loddon water supply system
and the Murray Valley water supply system, allowance must be made for an
additional 22 GL per year, or such other annual volume as the Ministerial
Council may, from time to time, determine in view of the special circumstances
applying to Lake Mokoan.
7. Long‑term
diversion cap for South Australia
(1) The Government of South
Australia must ensure that diversions from the River Murray within South
Australia:
(a) for water supply purposes delivered to Metropolitan
Adelaide and associated country areas through the Swan Reach‑Stockwell, Mannum‑Adelaide
and Murray Bridge‑Onkaparinga pipeline systems do not exceed a total diversion
of 650 GL over any period of 5 years;
(b) for Lower Murray Swamps irrigation do not exceed 94.2
GL per year;
(c) for water supply purposes for Country Towns do not
exceed 50 GL per year; and
(d) for all other purposes do not exceed a long‑term
average annual diversion of 449.9 GL.
(2) The Government of South
Australia must ensure that:
(a) no part of any entitlement created in South Australia
with respect to the diversion referred to in paragraph 7(1)(a) is either used,
or transferred for use, for any purpose other than use in Metropolitan Adelaide
and associated country areas; and
(b) at least 22.2 GL of the diversion referred to in
paragraph 7(1)(b) is reserved for environmental purposes and is not
transferred,
unless
the Ministerial Council determines otherwise.
(3) If the Government of
South Australia supplies any of the diversions referred to in paragraph 7(1)(d)
through the Swan Reach‑Stockwell, Mannum‑Adelaide and Murray Bridge‑Onkaparinga
pipeline systems in any year, it must:
(a) record the volume of water so delivered for that
purpose in that year; and
(b) account for that volume against the long‑term average
annual diversion referred to in paragraph 7(1)(d), when monitoring and
reporting to the Authority under clause 13.
8. Long‑term diversion cap for Queensland
The Government of Queensland must ensure that diversions
from each designated river valley in Queensland do not exceed diversions under
baseline conditions in that designated river valley, as determined by reference
to the model determined under sub‑clause 11(4).
9. Long‑term diversion cap for the Australian
Capital Territory
(1) The Government of the
Australian Capital Territory must ensure that diversions from the designated
river valley in the Australian Capital Territory do not exceed 40 GL per annum
(being 42 GL minus 2GL saving allocated to the Living Murray), varied as
required by sub‑clause (2).
(2) The long‑term diversion
cap referred to in sub‑clause (1) is to be annually adjusted:
(a) for the prevailing climate during the water year by
reference to the model developed under sub‑clause 11(4); and
(b) to account for growth in population, in accordance
with the following formula:
0.75
multiplied by:
2006/07 per capita consumption of the population of Canberra
and Queanbeyan
multiplied by:
the difference between the population of Canberra and
Queanbeyan in 2006/07 and the population of Canberra and Queanbeyan for each
year in consideration.
(3) The Government of the
Australian Capital Territory must ensure that no water or water entitlement
that is used for urban purposes will be transferred for use outside the
Australian Capital Territory unless that water or water entitlement has been
transferred for use within the Australian Capital Territory from another State.
(4) If demand for water for
industrial uses or uses by the Commonwealth grows beyond the level of demand in
2006/07, that growth in demand will be met by transferring water or water
entitlements from another State.
(5) The Authority must, for
the purposes of maintaining the Cap Register referred to in sub‑clauses 13(7)
and 13(8), take into account 107 GL of cumulative Cap credit existing at the
end of 2006/07.
10. Power
of Authority to alter long‑term diversion caps
(1) Subject to sub‑clause 10(2)
the Ministerial Council may, on the recommendation of the Committee, make
protocols determining how the Authority may alter any long‑term diversion cap
referred to in this Schedule.
(2) The Authority, from time
to time:
(a) must alter a long‑term diversion cap to reflect the
result of transferring water entitlements or allocations within a State or
between States, in accordance with any protocols established under Schedule D;
and
(b) may only alter a long‑term diversion cap to account
for environmental water under Cap in accordance with a protocol made under sub‑clause 10(1).
11. Developing
Analytical Models
(1) The Authority must
develop analytical models for determining the annual diversion targets for the
upper River Murray.
(2) Subject to sub‑clause 11(1),
the Governments of New South Wales, Victoria, Queensland and the Australian
Capital Territory must each develop analytical models for determining the
annual diversion target for each designated river valley within the territory
of that State.
(3) The Government of South
Australia must develop analytical models for determining the annual diversion
target for diversions referred to in paragraphs 7(1)(a) and (d).
(4) An analytical model developed
under this clause:
(a) must simulate the long‑term diversion cap in the
relevant designated river valley; and
(b) must be tested against relevant historical data to
determine the accuracy of the model in estimating the annual diversion; and
(c) must be approved by the Authority before it is used to
determine an annual diversion target under this Schedule; and
(d) may, from time to time, be modified in such ways as
the Authority may approve; and
(e) must be used to determine the average annual diversion
under the conditions of the relevant long‑term diversion cap determined under
this Schedule for either:
(i) the
period between the start of the 1891 water year and the end of the 1997 water
year; or
(ii) such
other period as may be approved by the Authority.
(5) The Authority may only
approve an analytical model or a modification to an analytical model if the
Authority considers that the model, when approved or modified, will fairly
determine the relevant annual diversion target given the climatic conditions
experienced in any year.
12. Calculation
of annual diversion targets
(1) Within two months after
the end of the relevant water year and using the analytical models developed
and approved under clause 11:
(a) the Authority must calculate the annual diversion
targets for New South Wales and Victoria for that year for the upper River
Murray; and
(b) subject to paragraph (a), the Governments of New
South Wales, Victoria, South Australia, Queensland and the Australian Capital
Territory must, for each designated river valley within the territory of that
State, calculate the annual diversion target for that year.
(2) The Authority must
promptly inform the Governments of New South Wales and Victoria of the results
of every calculation made under paragraph 12(1)(a) with respect to the upper
River Murray.
(3) The Government of New
South Wales, Victoria, South Australia, Queensland and the Australian Capital
Territory, respectively, must each promptly inform the Authority of the results
of every calculation made by it under paragraph 12(1)(b).
13. Monitoring
and Reporting
(1) Each State Contracting
Government must, for each water year and in relation to each river valley
specified in Appendix 2 within its territory, monitor and report to the
Authority upon:
(a) diversions made within and to; and
(b) water entitlements, announced allocations of water and
declarations which permit the use of unregulated flows of water within; and
(c) trading of water entitlements within, to or from,
the
territory of that State in that water year.
(2) Each State Contracting
Government must, for each water year and in relation to each designated river
valley within its territory, monitor and report to the Authority upon:
(a) the compliance by that State with each relevant annual
diversion target calculated under this Schedule for that water year; and
(b) such actions which the State proposes to take to
ensure that it does not exceed the annual diversion targets calculated under
this Schedule for every ensuing water year.
(3) For the purpose of sub‑clauses 13(1)
and (2) the expression “river valley within its territory” in relation to
Victoria, includes that portion of the upper River Murray forming the border
between Victoria and New South Wales.
(4) A report under sub‑clause 13(1)
or (2) must be given to the Authority within four months after the end of each
relevant water year or by such other time as the Authority may determine.
(5) On the basis of the
calculations referred to in sub‑clause 12(1) and reports given to it under
sub‑clauses 13(1) and (2) the Authority:
(a) must, in relation to each State Contracting
Government, produce a water audit monitoring report which includes information
about that Government’s compliance with the annual diversion target calculated
for each designated river valley in the territory of that State and for the
whole of the State in the relevant water year; and
(b) may publish any such report, or a summary thereof, in
such manner as it may determine.
(6) A water audit monitoring
report under sub‑clause 13(4) must be produced by 31 December
following the conclusion of each relevant water year, or by such other time as
the Authority may determine.
(7) The Register maintained
under sub‑clause 13(7) of the former Schedule is continued in existence in
the form in which it was held, and containing the information it contained,
immediately prior to commencement of this Schedule until altered by the
Authority in accordance with sub‑clause (8).
(8) The Authority must
maintain the Cap Register referred to in sub‑clause 13(7) so that it
records:
(a) for each designated river valley; and
(b) for each State,
the
cumulative difference between actual annual diversions and the annual diversion targets
calculated under this Schedule.
(9) The Cap Register must:
(a) for New South Wales, Victoria and South Australia,
include information for every water year concluding after 1 November 1997;
and
(b) for Queensland, include information about each
designated river valley in every water year commencing after the Resource
Operations Plan first adopted by the Government of Queensland for that
designated river valley is published in the Queensland Government Gazette; and
(c) for the Australian Capital Territory, include
information about its designated river valley in every water year; and
(d) if cumulative actual diversions for any designated
river valley or for any State are less than the cumulative annual diversion
targets calculated under this Schedule, as the case requires, record the
difference as a credit; and
(e) if cumulative actual diversions for any designated
river valley or for any State are greater than the cumulative annual diversion
targets calculated under this Schedule, as the case requires, record the
difference as a debit.
(10) The Authority must include
a report on the operation of this Schedule in any report made to the
Ministerial Council under clause 85 of the Agreement.
14. Appointment
of Independent Audit Group
(1) The Authority must
appoint an Independent Audit Group for the purposes of this Schedule.
(2) A person who was
appointed to the Independent Audit Group under the former Schedule is taken to
have been appointed by the Authority for the purposes of this clause, on the
conditions and for the term specified in the appointment under the former
Schedule.
15. Annual
audit by the Independent Audit Group
(1) The Independent Audit
Group must, until 31 December 2009, annually audit the performance of each
State Contracting Government in implementing the long‑term diversion cap in
each water year which concludes on or between 1 June 1999 and 1 November
2009.
(2) The Authority may direct
the Independent Audit Group to audit the performance of any State Contracting
Government in implementing the long‑term diversion cap in any water year
concluding after 1 November 2009.
(3) The Independent Audit
Group must report to the Authority on any audit conducted under this clause.
16. Power
to require a special audit of a designated river valley
If, after receiving a report from a State Contracting
Government under sub‑clause 13(2) for any year, the Authority calculates
that either:
(a) the diversion for water supply to Metropolitan
Adelaide and associated country areas over the last five years has exceeded 650
GL; or
(b) the diversion in the Warrego, Paroo, Moonie or Nebine
designated river valley has exceeded the annual diversion target for that
valley, determined under paragraph 12(1)(b); or
(c) the cumulative debit recorded in the Cap Register
exceeds 20 % of the average annual diversion determined under paragraph
11(4)(e) for a particular designated river valley within that State,
the Authority must direct the Independent Audit Group to
conduct a special audit of the performance of that State Contracting Government
in implementing the long‑term diversion cap in the relevant designated river
valley.
17. Special
audit by Independent Audit Group
(1) In conducting a special
audit under clause 16, the Independent Audit Group must consider:
(a) data on diversions and annual diversion targets
recorded on the Cap Register; and
(b) data submitted by the relevant State Contracting
Government, including, for example, data about areas under irrigation, storage
capacities, crop production, irrigation technology and the conjunctive use of
groundwater in the designated river valley; and
(c) the impact that policies implemented by the State
Contracting Government may have on the expected pattern of annual diversions;
and
(d) whether the diversion for all years on the Cap
Register exceeds the diversion expected under the long‑term diversion cap for those
years, and
(e) any other matter which the Independent Audit Group
considers relevant.
(2) The
Independent Audit Group must:
(a) determine whether the long‑term diversion cap has been
exceeded in the designated river valley; and
(b) report to the Authority on the special audit and
advise the Authority of its determination within six months after a direction
given under clause 16.
18. Declaration
that diversion cap has been exceeded
If the Authority receives a report under sub‑clause 17(2)
which determines that a State has exceeded the long‑term diversion cap in a
designated river valley, the Authority must:
(a) forthwith declare that the State has exceeded the
Murray‑Darling Basin diversion cap; and
(b) report the matter to the next meeting of the Ministerial
Council.
19. Advice
to Ministerial Council on remedial actions
(1) The Government of a State
referred to in paragraph 18(a) must report to the next Ministerial Council
after a declaration is made under that paragraph, setting out:
(a) the reasons why diversions exceeded the Murray‑Darling
Basin diversion cap; and
(b) action taken, or proposed to be taken by it to ensure
that cumulative diversions recorded in the Cap Register are brought back into
balance with the cap; and
(c) the period within the relevant model referred to in
clause 11 predicts that the cumulative diversions recorded in the Cap
Register will be brought back into balance with the cap.
(2) The Government of a State
that has been required to report to the Ministerial Council under sub‑clause 19(1)
must report to each subsequent meeting of the Ministerial Council on action
taken, or proposed to be taken by it to ensure that cumulative diversions
recorded in the Cap Register are brought back into balance with the cap, until
the Authority revokes a declaration pursuant to sub‑clause 19(3).
(3) When the Authority is
satisfied that a State in respect of which a declaration has been made under
paragraph 18(a) has brought the cumulative diversions recorded in the Cap
Register back into balance with the cap and is once more complying with the
Murray‑Darling Basin diversion cap in all respects, it must:
(a) revoke the declaration; and
(b) report that fact to the next meeting of the
Ministerial Council.
SCHEDULE E — APPENDIX 1 — Designated River Valleys
1. New
South Wales
The New South Wales portion of the Border Rivers
catchment, excluding the portion of the Gil Gil Creek below the Carole Creek
confluence and the Boomi River below the Gil Gil Creek confluence.
The New South Wales portion of the following catchments:
Moonie, Big Warrnambool, the Culgoa/Birrie/Bokhara/Narran, Warrego, Paroo and
Nebine.
Gwydir catchment, including the portion of the Gil Gil
Creek below the Carole Creek confluence and the Boomi River below the Gil Gil
Creek confluence.
Namoi catchment.
The Macquarie/Castlereagh/Bogan catchments.
The Barwon/Upper Darling river system and the Lower
Darling river system, from the furthest upstream reach of the Menindee Lakes to
the furthest upstream reach of the Wentworth Weir Pool.
Lachlan catchment.
Murrumbidgee catchment excluding that part of the
Murrumbidgee River that flows through the Australian Capital Territory, its sub‑catchments
in that Territory and the Canberra Water Supply System.
The New South Wales portion of the Murray Valley including
the portion of the Lower Darling influenced by the Wentworth Weir Pool.
2. Queensland
The portion of the Condamine and Balonne catchments in
Queensland.
The portion of the Border Rivers catchment in Queensland.
The portion of the Moonie catchment in Queensland.
The portion of the Warrego catchment in Queensland.
The portion of the Paroo catchment in Queensland.
The portion of the Nebine catchment in Queensland.
3. Victoria
The Goulburn/Broken/Loddon water supply system.
The Campaspe/Coliban water supply system.
The Wimmera/Mallee water supply system.
The Victorian portion of the Murray Valley including the
Kiewa and Ovens catchments.
4. South
Australia
The pumps on the Murray within South Australia used to
supply Metropolitan Adelaide and associated country areas.
Lower Murray Swamps irrigation.
Country Towns water use.
Water Use for All Other Purposes from the Murray within
South Australia.
5. Australian
Capital Territory
That part of the Murrumbidgee River that flows through the
Australian Capital Territory, its sub‑catchments in that Territory and the
Canberra Water Supply System.
SCHEDULE E — APPENDIX 2 — River Valleys
1. New
South Wales
The portion of the Border Rivers catchment in New South
Wales, excluding the portion of Gil Gil Creek below the Carole Creek confluence
and the Boomi River below the Gil Gil Creek confluence.
The portion of the Moonie catchment in New South Wales.
The portion of the Big Warrnambool catchment in New South
Wales.
The portion of the Culgoa/Birrie/Bokhara/Narran catchments
in New South Wales.
The portion of the Warrego catchment in New South Wales.
The portion of the Paroo catchment in New South Wales.
That portion of the Nebine catchment in New South Wales.
Gwydir catchment, including the portion of Gil Gil Creek
below the Carole Creek confluence and the Boomi River below the Gil Gil Creek
confluence.
Namoi catchment.
The Macquarie/Castlereagh/Bogan water catchments.
The Barwon/Upper Darling river system.
Lower Darling river system from the furthest upstream
reach of the Menindee Lakes to the furthest upstream reach of the Wentworth
Weir Pool.
Lachlan catchment.
Murrumbidgee catchment excluding that part of the
Murrumbidgee River that flows through the Australian Capital Territory, its sub‑catchments
in that Territory and the Canberra Water Supply System.
The New South Wales portion of the Murray Valley including
the portion of the Lower Darling influenced by the Wentworth Weir Pool.
2. Queensland
The portion of the Condamine and Balonne catchments in
Queensland.
The portion of the Border Rivers catchment in Queensland.
The portion of the Moonie catchment in Queensland.
The portion of the Warrego catchment in Queensland.
The portion of the Paroo catchment in Queensland.
The portion of the Nebine catchment in Queensland.
3. Victoria
Kiewa catchment.
Ovens catchment.
Goulburn catchment.
Broken catchment.
Campaspe catchment.
Loddon catchment.
Wimmera/Mallee catchment.
The Victorian portion of the Murray Valley catchment.
4. South
Australia
The pumps on the Murray within South Australia used to
supply Metropolitan Adelaide and associated country areas.
Lower Murray Swamps irrigation.
Country Towns water use.
Water use for All Other Purposes from the Murray within
South Australia.
5. Australian
Capital Territory
That part of the Murrumbidgee River that flows through the
Australian Capital Territory, its sub‑catchments in that Territory and the
Canberra Water Supply System.
SCHEDULE
F — EFFECT OF THE SNOWY SCHEME
PART I
— PRELIMINARY
1. Purpose
The purpose of this Schedule is to make arrangements for
sharing between New South Wales, South Australia and Victoria of water made
available in the catchment of River Murray above Hume Dam by the Snowy Scheme.
2. Definitions
In this Schedule:
(1) “Baseline Conditions”
means:
(a) the infrastructure supplying water;
(b) the rules for allocating water and for water
management systems applying;
(c) the operating efficiency of water management systems;
and
(d) existing entitlements to take and use water and the
extent to which those entitlements were used,
within
the Murray‑Darling
Basin as at the Corporatisation Date;
(2) “Corporatisation Date”
means the date on which the Snowy Mountains Hydro‑electric Power Act 1949 (Cth)
is repealed by the Snowy Hydro Corporatisation Act 1997 (Cth);
(3) “Environmental
Entitlement” means:
(a) a category of environmental water referred to in
section 8 of the Water Management Act 2000 (NSW); and
(b) a bulk entitlement granted under the Water Act 1989
(Vic) that includes conditions relating to environmental purposes,
in both
cases comprising a volume of water derived from either or both of Water Savings
and Water Entitlements;
(4) “Goulburn River
System” means the Broken, Goulburn, Campaspe and Loddon Rivers and the
water supply systems supplied by those rivers;
(5) “Licensee” means
the licensee under the Snowy Water Licence;
(6) “Long Term Diversion
Cap” means the long term diversion cap for the State of New South Wales or
the State of Victoria under clauses 5 and 6 respectively of Schedule E;
(7) “Lower Darling River
System” means the Darling River and its anabranch system from the upstream
extent of the Menindee Lakes Storage and downstream and the water supply
systems supplied by that River;
(8) “Month” means
calendar month and “Monthly” means each calendar month;
(9) “Mowamba Borrowings
Account” means the water account to be maintained by the Licensee under the
Snowy Water Licence to account for flows made under the Snowy Water Licence
from the Mowamba River and Cobbon Creek in the first three years after the
Corporatisation Date;
(10) “Murrumbidgee River
System” means the Murrumbidgee River and the water supply systems supplied
by that river;
(11) “Relaxation Volume” has
the same meaning as in the Snowy Water Licence as at the Corporatisation Date;
(12) “Reliability” with
respect to a supply of water means the statistical probability of being able to
supply a particular volume in any Water Year;
(13) “Required Annual
Release” has the same meaning as in the Snowy Water Licence taken as
a whole as at the Corporatisation Date, subject to sub‑clauses 7A and 7B
of this Schedule. For the avoidance of doubt, “Required Annual Release” is not
a reference to “Agreed Annual Release” under that Licence;
(14) “Required Annual
Release Shortfall” means, in any Water Year, the volume by which the
Required Annual Release from the Snowy‑Murray Development in that Water Year
exceeds the actual release from the Snowy Scheme to the catchment of the River
Murray upstream of Hume Dam in that Water Year;
(15) “River Murray Above
Target Releases” means, in any Water Year, water that is released from the
Snowy Scheme to the catchment of the River Murray upstream of Hume Dam in
excess of the Required Annual Release from the Snowy‑Murray Development in that
Water Year;
(16) “River Murray Annual
Allocation” with respect to each Water Year means the annual allocation
from the River Murray Apportioned Entitlement determined by New South Wales;
(17) “River Murray
Apportioned Entitlement” means the volume of water from the Environmental
Entitlements that is apportioned to the River Murray Increased Flows by New
South Wales;
(18) “River Murray Increased
Flows” means releases of water from major storages made by the Authority in
accordance with Part V of this Schedule;
(19) “River Murray Increased
Flows Accounts” means the water accounts to be maintained by the Authority
under clause 21 of this Schedule;
(20) “River Murray Increased
Flows in Authority Storages Account” means the water account to be
maintained by the Authority under paragraph 21(1)(b) of this Schedule;
(21) “River
Murray System” means the aggregate of:
(a) the River Murray;
(b) all tributaries entering the River Murray upstream of
Doctors Point;
(c) the Ovens River; and
(d) the Lower Darling River System;
(22) “Seasonal Availability”
with respect to the water to which an entitlement refers means:
(a) for that part of the entitlement whose availability is
determined by reference to seasonal allocations: the final seasonal allocation
announcement of the relevant State during the previous Water Year; and
(b) for that part of the entitlement whose availability is
determined by reference to the entitlement of South Australia: the allocated
volume received during the previous Water Year by South Australia as a
proportion of its entitlement during that Water Year under this Agreement;
(23) “Snowy Montane Rivers
External Increased Flows” means releases of water made by the Licensee to
montane rivers under the environmental flow requirements of the Snowy Water
Licence which would have flowed through either:
(a) the Murray 1 Power Station in the case of the Snowy‑Murray
Development; or
(b) Jounama Pondage in the case of the Snowy‑Tumut
Development,
if it were not released for
environmental purposes;
(24) “Snowy‑Murray
Development” means the component of the Snowy Scheme comprising works that
regulate the waters of the Upper Snowy River, the Geehi River and Bogong Creek;
(25) “Snowy‑Murray
Development Annual Allocation” means the annual allocation for any Water
Year for the Snowy‑Murray Development determined by New South Wales by
reference to the Seasonal Availability of the water contained in the Snowy‑Murray
Development Designated Entitlement;
(26) “Snowy‑Murray
Development Designated Entitlement” means that part of the Environmental
Entitlements designated against the Snowy‑Murray Development by New South
Wales;
(27) “Snowy‑Murray
Development (River Murray) Environmental Entitlements” means both:
(a) a category of environmental water referred to in
section 8 of the Water Management Act 2000 (NSW); and
(b) a bulk entitlement granted under the Water Act 1989
(Vic) that includes conditions relating to the protection of the environment,
in both
cases comprising a
volume of water derived from either or both of Water Savings and Water
Entitlements sourced from the River Murray System or the Goulburn River System;
(28) “Snowy Notional Spill”
means:
(a) in the case of the Snowy‑Murray Development:
the calculated active volume of water belonging to the Snowy‑Murray Development
stored in Eucumbene Reservoir exceeding 2,019 GL and accounted as a loss from
the Snowy‑Murray Development and a gain to the Snowy‑Tumut Development;
(b) in the case of Snowy‑Tumut Development: the
calculated active volume of water belonging to the Snowy‑Tumut Development
stored in Eucumbene Reservoir exceeding 2,348 GL and accounted as a loss from
the Snowy‑Tumut Development and a gain to the Snowy‑Murray Development;
(29) “Snowy River” means
the Snowy River downstream of Jindabyne Dam;
(30) “Snowy River Annual
Allocation” means the annual allocation from the Snowy River Apportioned
Entitlement for any Water Year, determined by New South Wales;
(31) “Snowy River
Apportioned Entitlement” means the volume of water from the Environmental
Entitlements apportioned to environmental flows from the Snowy Scheme to the
Snowy River, by New South Wales;
(32) “Snowy Scheme” means
the dams, tunnels, power stations, aqueducts and other structures that comprise
the Snowy‑Murray Development and the Snowy‑Tumut Development, that together are
known as the Snowy Mountains Hydro‑electric Scheme;
(33) “Snowy‑Tumut
Development” means the component of the Snowy Scheme comprising works that
regulate the waters of the Eucumbene River, the Tooma River, the Upper
Murrumbidgee River and the Upper Tumut River;
(34) “Snowy‑Tumut
Development Annual Allocation” with respect to each Water Year means the
annual allocation for the Snowy‑Tumut Development determined by New South Wales
by reference to the Seasonal Availability of the water contained in the Snowy‑Tumut
Development Designated Entitlement;
(35) “Snowy‑Tumut
Development Designated Entitlement” means that part of the Environmental
Entitlements designated against the Snowy‑Tumut Development by New South Wales;
(36) “Snowy Water Licence” means
the licence issued under Part 5 of the Snowy Hydro Corporatisation Act
1997 (NSW);
(37) “Strategy” means
the strategy for retaining and releasing River Murray Increased Flows referred
to in clause 20 of this Schedule;
(38) “Translation Factors” means
the translation factors used to convert Water Savings and Water Entitlements
into an Environmental Entitlement with specified Reliability;
(39) “Upper Snowy River” means
the Snowy River upstream of Jindabyne Dam (including the Mowamba River and the
Cobbon Creek) but excluding the Eucumbene River;
(40) “Water Entitlement” means:
(a) an access licence granted under the Water
Management Act 2000 (NSW); and
(b) a water right, licence to take and use water or bulk
entitlement under the Water Act 1989 (Vic) together with any
transferable allocation of sales water made to the holder of such a water right
or licence,
in
either case purchased for the purpose of achieving either or both of:
(c) environmental flows from the Snowy Scheme; and
(d) River Murray Increased Flows;
(41) “Water Market” means,
with respect to a Water Entitlement, the market from which the relevant Water
Entitlement is drawn;
(42) “Water Savings” means
the volume of water saved through one or more projects that saves water:
(a) by reducing transmission losses, evaporation or system
inefficiencies; or
(b) by achieving either or both of water management and
environmental improvements,
(c) for diversions from the River Murray System and either
or both of Murrumbidgee River System and the Goulburn River System for the
purpose of achieving:
(d) environmental flows from the Snowy Scheme; and
(e) River Murray Increased Flows;
(43) “Water Year” means
the period of 12 Months commencing on 1 May in each year.
PART II
— CALCULATING WATER VOLUMES
3. The
Snowy Scheme And The River Murray
(1) In this Agreement, “Water
Available to the Snowy‑Murray Development” means:
Water of the Upper Snowy River regulated by the Snowy Scheme
PLUS water of the Geehi River and Bogong Creek
regulated by the Snowy Scheme
PLUS any Snowy Notional Spill from the Snowy‑Tumut
Development to the Snowy‑Murray Development
PLUS the transfer from the Snowy‑Tumut Development to
the Snowy‑Murray Development of the Snowy‑Tumut Development Annual Allocation
PLUS 4·5 GL per Water Year transferred from the Snowy‑Tumut
Development to the Snowy‑Murray Development
PLUS half of the balance of the Mowamba Borrowing
Account
MINUS Snowy Notional Spill from the Snowy‑Murray
Development to the Snowy‑Tumut Development.
(2) In this Agreement, “Net
Snowy‑Murray Development Diversions to the River Murray” means the volume
of water calculated as follows:
Water Available to the Snowy‑Murray Development released by
the Snowy Scheme to the catchment of the River Murray upstream of Hume Dam
MINUS the water of the Tooma River regulated by the
Snowy Scheme
MINUS the natural flows of the Geehi River and Bogong
Creek regulated by the Snowy Scheme.
(3) In this
Agreement, “Murray to Murrumbidgee Inter‑Valley Transfer” means the
volume of Water Available to the Snowy‑Murray Development released by the Snowy
Scheme to the catchment of the Murrumbidgee River.
4. The
Snowy Scheme And The Murrumbidgee River
(1) In this Agreement, “Water
Available to the Snowy‑Tumut Development” means:
Water of the Eucumbene River, the Tooma River, the Upper
Murrumbidgee River and the Upper Tumut River regulated by the Snowy Scheme
PLUS any Snowy Notional Spill from the Snowy‑Murray
Development to the Snowy‑Tumut Development
MINUS half of the balance of the Mowamba Borrowings
Account
MINUS any Snowy Notional Spill from the Snowy‑Tumut
Development to the Snowy‑Murray Development
MINUS the transfer from the Snowy‑Tumut Development to
the Snowy‑Murray Development of the Snowy‑Tumut Development Annual Allocation
MINUS 4·5 GL per Water Year transferred from the Snowy‑Tumut
Development to the Snowy‑Murray Development.
(2) In this Agreement, “Murrumbidgee
to Murray Inter‑Valley Transfer” means the volume of Water Available to the
Snowy‑Tumut Development released by the Snowy Scheme to the catchment of the
River Murray upstream of Hume Dam.
5. Excess
Snowy River Releases
In this Agreement, “Excess Snowy River Releases” means
the greater of zero and the volume of water calculated as follows:
The regulated releases made to the Snowy River in the relevant
Water Year, measured immediately below the confluence of the Snowy River and
the Mowamba River
MINUS 9 GL
MINUS the Snowy River Annual Allocation in the relevant
Water Year
MINUS the change in the balance of the Mowamba
Borrowings Account during the relevant Water Year.
6. Snowy
River Release Shortfalls
In this Agreement, “Snowy River Release Shortfalls” means
the greater of zero and the volume of water calculated as follows:
The Snowy River Annual Allocation in the relevant Water Year
PLUS 9 GL
PLUS the change in the balance of the Mowamba
Borrowings Account from the commencement to the end of the relevant Water Year
MINUS the regulated releases made to the Snowy River in
the relevant Water Year, measured immediately below the confluence of the Snowy
River and the Mowamba River.
7. Accounting
For Water Releases
For the purposes of this Agreement, water releases from
the Snowy‑Murray Development to the catchment of the River Murray upstream of
Hume Dam are to be accounted as:
(1) water releases as at
Murray 1 Power Station; and
(2) any water that would have
passed through the Murray 1 Power Station but does not:
(a) for operational reasons; or
(b) because it is released from the Snowy Scheme as Snowy
Montane Rivers External Increased Flows,
and
that flows into the catchment of the River Murray upstream of Hume Dam.
7A. Calculating
Required Annual Release
(1) Subject to clause 7A
and 7B of this Schedule, the Required Annual Release, and the Dry Inflow
Sequence used to calculate it, must both be calculated in accordance with the
Snowy Water Licence taken as a whole as at the Corporatisation Date.
(2) Subject to sub‑clause 7A(3),
the Required Annual Release for any Water Year, calculated in accordance with
sub‑clause 7A(l), must be reduced by so much of the volume of any release
made in the preceding Water Year that was surplus to the Required Annual
Release for that Water Year.
(3) The Required Annual
Release for any Water Year must not be reduced under sub‑clause 7A(2) by a
volume which exceeds the Dry Inflow Sequence Volume calculated on 1 March
of the preceding Water Year.
7B. Calculating
Dry Inflow Sequence Volume
(1) For the purpose of
calculating the Dry Inflow Sequence Volume referred to in clause 7A in any
month:
(a) the estimated inflows for the remainder of that Water
Year must be taken to be the same as the minimum previously recorded inflows
for the same period;
(b) the estimated losses for the remainder of that Water
Year must be calculated by reference to:
(i) the
maximum previously recorded evaporation rates for the same period; and
(ii) the
expected Below Target storage volumes for that period;
(c) the volume required to supply the Jindabyne Base
Passing Flows from 1 May 2006 must be added;
(d) the volume of losses attributable to storing Above
Target Water from 1 May 2006 must be subtracted; and
(e) the volume of the Mowamba Borrowings Account must be
added (not subtracted).
(2) The Dry Inflow Sequence
Volume calculated at the beginning of any month may be lower than the Dry
Inflow Sequence Volume calculated at the beginning of the preceding month,
provided that the Dry Inflow Sequence Volume calculated on 1 April in any
Water Year must not be less than the Dry Inflow Sequence Volume calculated on
the preceding 1 March.
PART III
— WATER ACCOUNTING
8. Entitlements
Of New South Wales And Victoria To Use Water
The volume of water referred to in paragraph 94(1)(e) of the
Agreement is calculated as follows:
The Net Snowy‑Murray Development Diversions to the River
Murray
PLUS Murray to Murrumbidgee Inter‑Valley Transfers
PLUS the Required Annual Release Shortfall
PLUS the Snowy‑Murray Development Annual Allocation
PLUS Excess Snowy River Releases in excess of the
volume of the Snowy River Release Shortfall in the previous Water Year
MINUS at the discretion of the Authority, Murrumbidgee
to Murray Inter‑Valley Transfers
MINUS the Required Annual Release Shortfall from the
previous Water Year
MINUS River Murray Above Target Releases allocated to
the River Murray Increased Flows received by Hume Reservoir.
9. Water
Estimated To Be Under The Control Of The Authority
Water referred to in paragraph 101(e) of the Agreement is
estimated as follows:
The Net Snowy‑Murray Development Diversions to the River
Murray
PLUS Murray to Murrumbidgee Inter‑Valley Transfers
PLUS the Required Annual Release Shortfall
PLUS the Snowy‑Murray Development Annual Allocation
PLUS Excess Snowy River Releases in excess of the
volume of the Snowy River Release Shortfall in the previous Water Year
MINUS at the discretion of the Authority, Murrumbidgee
to Murray Inter‑Valley Transfers
MINUS the Required Annual Release Shortfall from the
previous Water Year
MINUS River Murray Above Target Releases allocated to
the River Murray Increased Flows received by Hume Reservoir,
in each case before the end of the following May.
10. Allocation
of Water to New South Wales and Victoria
The volume of water referred to in paragraph 106(1)(b) of
the Agreement is calculated as follows:
The Net Snowy‑Murray Development Diversions to the River
Murray
PLUS Murray to Murrumbidgee Inter‑Valley Transfers
PLUS the Required Annual Release Shortfall
PLUS the Snowy‑Murray Development Annual Allocation
PLUS Excess Snowy River Releases in excess of the
volume of the Snowy River Release Shortfall in the previous Water Year
MINUS at the discretion of the Authority, Murrumbidgee
to Murray Inter‑Valley Transfers
MINUS the Required Annual Release Shortfall from the
previous Water Year
MINUS River Murray Above Target Releases allocated to
the River Murray Increased Flows received by Hume Reservoir.
11. Tributary
Inflows
(1) The volume of water
referred to in sub‑clause 108(2) of the Agreement is calculated as
follows:
The component of the Required Annual Release Shortfall from
the previous Water Year allocated to New South Wales under sub‑clause 13(2)
of this Schedule
PLUS half of the River Murray Above Target Releases
allocated to the River Murray Increased Flows received by Hume Reservoir
PLUS half of the Excess Snowy River Release up to the
volume of half of the Snowy River Release Shortfall in the previous Water Year
for which an adjustment was made under sub‑clauses 11(2) and 12(1) of this
Schedule in the previous Water Year
PLUS at the discretion of the Authority, Murrumbidgee
to Murray Inter‑Valley Transfers
(2) The volume of water
referred to in sub‑clause 108(3) of the Agreement is calculated as
follows:
The component of the Required Annual Release Shortfall from
the previous Water Year allocated to Victoria under sub‑clause 13(2) of
this Schedule
PLUS half of the River Murray Above Target Releases
allocated to the River Murray Increased Flows received by Hume Reservoir
PLUS half of the Snowy River Release Shortfall, unless
Victoria has previously advised the Authority that Victoria waives this element
of its allocation in any Water Year.
12. Use
By New South Wales And Victoria Of Allocated Water
(1) The quantity of water
referred to in paragraph 109(b) of the Agreement is calculated as follows:
Murray to Murrumbidgee Inter‑Valley Transfers
PLUS Excess Snowy River Releases in excess of the
volume of the Snowy River Release Shortfall in the previous Water Year
PLUS the Snowy‑Murray Development Annual Allocation
sourced from New South Wales
PLUS the component of the Required Annual Release
Shortfall allocated to New South Wales under sub‑clause 13(1) of this
Schedule
PLUS unless otherwise agreed with Victoria, half of the
Snowy River Release Shortfall.
(2) The quantity of water
referred to in paragraph 109(c) of the Agreement is calculated as follows:
The Snowy‑Murray Development Annual Allocation sourced from
Victoria
PLUS the component of the Required Annual Release
Shortfall allocated to Victoria under sub‑clause 13(1) of this Schedule
PLUS half of the Excess Snowy River Release up to the
volume of half of the Snowy River Release Shortfall in the previous Water Year
for which an adjustment was made under sub‑clauses 11(2) and 12(1) of this
Schedule in the previous Water Year, (such adjustments to reflect any waiver or
agreement with Victoria as referred to in those sub‑clauses).
13. Required
Annual Release Shortfalls
(1) If at the end of a Water
Year there is a Required Annual Release Shortfall, the Required Annual Release
Shortfall is to be accounted for by the Authority in accordance with Table One.
TABLE ONE: WATER ACCOUNTING AND
REQUIRED ANNUAL RELEASE SHORTFALLS
|
TYPE OF WATER YEAR
|
ARRANGEMENT WITH RESPECT TO
REQUIRED ANNUAL RELEASE SHORTFALL
|
WATER ACCOUNTING OUTCOMES
|
|
Water Year
during which a period of special accounting is not in effect
|
Victoria agrees to the Required Annual Release Shortfall
|
New South Wales and Victoria deemed to each have used the
Required Annual Release Shortfall as agreed
|
|
Victoria does not agree to
the Required Annual Release Shortfall
|
New South Wales deemed to
have used the whole of the Required Annual Release Shortfall
|
|
Water Year
during which a period of special accounting is in effect
|
Victoria and the Ministerial Council agree to the Required
Annual Release Shortfall
|
New South Wales and Victoria deemed to each have used the
Required Annual Release Shortfall as agreed
|
|
The Ministerial Council does not agree to the Required
Annual Release Shortfall
|
New South Wales deemed to have used the whole of the
Required Annual Release Shortfall
|
(2) The volume of any
Required Annual Release Shortfall from the previous Water Year must be
allocated equally between New South Wales and Victoria until the balance of
Required Annual Release Shortfalls for either State is zero and thereafter
wholly to the other State.
14. Other
Water Accounting Provisions
(1) Where under this Schedule
the Authority is required to adjust accounts in connection with the Snowy‑Murray
Development Annual Allocation, it must make those adjustments in equal Monthly
quantities.
(2) Where under this Schedule
the Authority is required to adjust accounts in connection with inter‑valley
transfer, it must make those adjustments in equal Monthly quantities during the
balance of the Water Year in which New South Wales notifies the Authority of
the relevant inter‑valley transfer.
(3) Each release of River
Murray Increased Flows must be allocated half to New South Wales and half to
Victoria.
PART IV
— SNOWY‑MURRAY DEVELOPMENT (RIVER MURRAY) ENVIRONMENTAL ENTITLEMENTS
15. Translation
Factors
(1) New South Wales and
Victoria must each transfer Water Savings and Water Entitlements to its
respective Snowy‑Murray Development (River Murray) Environmental Entitlement in
accordance with Translation Factors agreed between each of them and the
Authority.
(2) New South Wales, Victoria
and the Authority must ensure that:
(a) the Translation Factors are determined in a manner
consistent with the principles used to determine exchange rates in the relevant
Water Market at the time of each transfer under sub‑clause 18(2) of this
Schedule; and
(b) the use of Translation Factors to transfer Water
Savings and Water Entitlements to a Snowy‑Murray Development (River Murray)
Environmental Entitlement will not have a significant adverse impact on:
(i) the
level of Reliability of entitlements to water diverted from the River Murray
System, the Murrumbidgee River System and the Goulburn River System;
(ii) the
environmental benefits related to the quantity and timing of water flows for
environmental purposes in the River Murray System, the Murrumbidgee River
System and the Goulburn River System;
(iii) the
Seasonal Availability of the entitlement to be received during that Water Year
by South Australia under this Agreement; and
(iv) water
quality in the River Murray in South Australia.
16. Apportionment
Of Environmental Entitlements
New South Wales and Victoria must notify the Authority of
how each Environmental Entitlement has been apportioned between:
(1) the Snowy River
Apportioned Entitlement; and
(2) the River Murray
Apportioned Entitlement.
17. Valley
Accounts
If:
(1) New South Wales or
Victoria transfers either or both of Water Savings and Water Entitlements to an
Environmental Entitlement; and
(2) the source of that water
is from a valley for which the Authority maintains a valley account,
New South Wales or Victoria (as the case may be) must
notify the Authority of the volume and reliability of the entitlement required
to be added to the relevant valley account to generate the Environmental
Entitlement.
18. Long
Term Diversion Caps
(1) Prior to New South Wales
or Victoria transferring either or both of Water Savings and Water Entitlements
to an Environmental Entitlement, the relevant State must calculate the
equivalent volume by which its Long Term Diversion Cap must be reduced.
(2) If New South Wales or
Victoria transfers either or both of Water Savings and Water Entitlements to an
Environmental Entitlement, at the same time the relevant State must advise the
Authority and the Committee of its calculation as to the volume by which its
Long Term Diversion Cap must be reduced.
(3) If the Committee is
satisfied with the appropriateness of a calculation advised under sub‑clause 18(2),
it must recommend to the Ministerial Council that the relevant Long Term
Diversion Cap be amended in accordance with the calculation.
(4) If the Committee is not
satisfied with the appropriateness of a calculation advised under sub‑clause 18(2),
the Authority must arrange for the relevant volume referred to in sub‑clause 18(1)
to be re‑calculated in consultation with the relevant State.
(5) If a majority of the
Committee members is satisfied with the appropriateness of a calculation made
under sub‑clause 18(4), the Committee must recommend to the Ministerial
Council that the relevant Long Term Diversion Cap be amended in accordance with
the calculation.
(6) Despite clause 10 of
Schedule E, the Ministerial Council must amend a Long Term Diversion Cap in
accordance with any recommendation made by the Committee under sub‑clause 18(3)
or 18(5).
PART V
— RIVER MURRAY INCREASED FLOWS
19. Obligation
Of Authority To Make River Murray Increased Flows
Subject to this Part, the Authority must release River
Murray Increased Flows.
20. Environmental
Objectives And Strategy For River Murray Increased Flows
(1) The document entitled “The
Living Murray Environmental Watering Plan 2006‑2007” approved by the former
Ministerial Council under the former Agreement on 5 December 2006 is taken
to be the Strategy referred to in this Schedule.
(2) Subject to sub‑clauses
(3) and (4), the Ministerial Council may from time to time by resolution amend
the Strategy.
(3) Any amended Strategy:
(a) must include a provision to the effect that River
Murray Increased Flows have first priority from River Murray Above Target
Releases;
(b) may provide that water credited to the River Murray
Increased Flows in Authority Storages Account need not be released during the
Water Year in which it is credited;
(c) unless the Ministerial Council otherwise determines,
must not have a significant adverse impact upon the security of entitlements to
water;
(d) must include the environmental objectives for the
River Murray Increased Flows and integrate those objectives with other
environmental initiatives on the River Murray;
(e) must include adaptive management principles to allow
the ability to optimise environmental benefits; and
(f) must prescribe appropriate environmental reporting and
monitoring conditions.
(4) The Ministerial Council
must determine any amended environmental objectives and Strategy in accordance
with the following principles:
(a) Natural diversity of habitats and biota within the
river channel, riparian zone and the floodplain should be maintained or
enhanced.
(b) Natural linkages between the river and the floodplain
should be maintained or enhanced.
(c) Natural metabolic functioning of aquatic ecosystems
should be maintained or enhanced.
(d) Elements of the natural flow regime, in particular,
seasonality should be retained or enhanced as far as possible, in the interests
of conserving a niche for native rather than invasive exotic species and in
maintaining the natural functions of the river.
(e) Consistent and constant flow and water level regimes
should be avoided where practical, as this is contrary to the naturally
variable flow regime of the River Murray.
(f) The general principles of ecosystem services should be
recognised.
(g) Environmental benefit should be optimised.
(5) As soon as practicable
after the end of each Water Year, the Authority must report to the Contracting
Governments on the environmental outcomes of the River Murray Increased Flows
during that Water Year, in the light of the objectives determined by the
Ministerial Council for those Increased Flows.
21. Authority
To Maintain River Murray Increased Flows Accounts
(1) The continuous water
accounts for the River Murray Increased Flows known as:
(a) the Initial River Murray Increased Flows Account; and
(b) the River Murray Increased Flows in Authority Storages
Account,
maintained under sub‑clause 21(1)
of Schedule G of the former Agreement immediately prior to commencement of this
Schedule are continued in existence.
(2) The Authority must
maintain the continuous water accounts of the River Murray Increased Flows
referred to in sub‑clause 21(1) in the manner required by this clause.
(3) The
Authority must:
(a) credit the Initial River Murray Increased Flows
Account with the River Murray Annual Allocation notified by New South Wales;
(b) transfer from the Initial River Murray Increased Flows
Account to the River Murray Increased Flows in Authority Storages Account,
River Murray Above Target Releases allocated to the River Murray Increased
Flows in accordance with the Strategy;
(c) record in the River Murray Increased Flows in
Authority Storages Account the transfer of water in that account between
Authority storages; and
(d) record in the River Murray Increased Flows in
Authority Storages Account the release of River Murray Increased Flows from
Authority storages.
(4) The River Murray
Increased Flows Accounts must be independently audited unless the Authority by
resolution declares otherwise.
(5) As soon as practicable
after the completion of each audit, the Authority must send a copy of the
audited River Murray Increased Flows Accounts to the Contracting Governments.
22. Binding
Effect of Strategy
Despite any other provision in this Agreement but subject
to Divisions 2 and 3 of Part XII of the Agreement, the Authority
must:
(1) allocate River Murray
Above Target Releases to the River Murray Increased Flows Accounts; and
(2) manage the water in and
releases of water from the River Murray Increased Flows in Authority Storages
Account,
in accordance with the
Strategy.
PART VI
— NOTIFICATION AND CONSULTATION PROVISIONS
23. Authority
To Be Informed Of New Proposals
A Contracting Government must inform the Authority of any
proposal:
(1) to achieve Water Savings
or to purchase Water Entitlements for the purpose of transferring those Water
Savings or Water Entitlements to the Environmental Entitlements; or
(2) to modify the reliability
of a supply of water pursuant to an Environmental Entitlement,
in accordance with sub‑clause 49(4) of the Agreement.
24. Snowy
Scheme Annual Water Operating Plan
(1) The parties acknowledge
that as a result of provisions in the Snowy Water Licence and a deed between
the Commonwealth, New South Wales and Victoria as at the Corporatisation Date,
the Licensee is bound to consult with others, including the Authority, while
developing each Annual Water Operating Plan and any variation to each Plan.
(2) The Commonwealth, New
South Wales and Victoria must:
(a) ensure the direct participation by the Authority in
each consultation referred to in sub‑clause 24(1) or held under any varied
consultation arrangements; and
(b) consult with the Authority before varying existing
consultation arrangements.
25. Notifications
Required
(1) Each Contracting
Government must, at the time specified by the Authority, notify the Authority
of such water volumes and estimates as are reasonably requested by the
Authority to enable it to make calculations referred to in this Schedule.
(2) The Authority must, at
any time specified by New South Wales, notify New South Wales of such water
volumes and estimates calculated by the Authority by reference to the Baseline
Conditions as are reasonably requested by New South Wales, to enable New South
Wales to calculate the Required Annual Release.
PART VII
— ANALYTICAL MODELS
26. Developing
Analytical Models
(1) The Authority must
develop an analytical model for determining, in the case of the River Murray
System:
(a) storage volumes; and
(b) total diversions,
that would have
occurred under Baseline Conditions.
(2) New South Wales must
develop an analytical model for determining, in the case of the Murrumbidgee
River System:
(a) storage volumes; and
(b) total diversions,
that would have
occurred under Baseline Conditions.
(3) An analytical model
developed under this clause:
(a) must be the best model available to the Authority or
New South Wales, from time to time, for the purpose of calculating the timing
and quantity of the Relaxation Volume under Baseline Conditions; and
(b) must be tested against relevant historical data to
determine the accuracy of the model.
(4) New South
Wales may at its own cost engage an independent auditor to evaluate whether the
model developed under sub‑clause 26(1) of this Schedule is:
(a) the best available to the Authority; and
(b) accurate.
PART VIII
— OTHER PROVISIONS
27. Inter‑Valley
Water Transfers
(1) To facilitate water
transfers, the Authority may request New South Wales to release:
(a) Water Available to the Snowy‑Murray Development to
each or both of the Tumut River catchment and the Murrumbidgee River catchment;
or
(b) Water Available to the Snowy‑Tumut Development to the
River Murray catchment upstream of Hume Dam.
(2) If New South Wales agrees
with the request made under sub‑clause 27(1) of this Schedule, any inter‑valley
transfer referred to in sub‑clause 27(1) must be converted into an
allocation to New South Wales of water in Hume Reservoir.
Schedule 1A—The Murray‑Darling Basin
Note: See section 18A.
The map set out in this Schedule delineates
the boundaries of the Murray‑Darling Basin but does not show all of the water
resources within the Murray‑Darling Basin that are covered by this Act.
Schedule 2—Basin water charging objectives and principles
Note: See section 4.
Part 1—Preliminary
1
Objectives and principles
This Schedule sets out:
(a) the Basin water charging
objectives; and
(b) the Basin water charging
principles.
Note 1: These objectives and principles are relevant to
the formulation of water charge rules under section 92 of this Act.
Note 2: These objectives and principles are based on
those set out in clauses 64 to 77 of the National Water Initiative when
Part 2 of this Act commences.
Part 2—Water charging objectives
2
Water charging objectives
The water charging objectives
are:
(a) to promote the economically
efficient and sustainable use of:
(i) water resources; and
(ii) water infrastructure
assets; and
(iii) government resources
devoted to the management of water resources; and
(b) to ensure sufficient revenue
streams to allow efficient delivery of the required services; and
(c) to facilitate the efficient
functioning of water markets (including inter‑jurisdictional water markets, and
in both rural and urban settings); and
(d) to give effect to the principles
of user‑pays and achieve pricing transparency in respect of water storage and
delivery in irrigation systems and cost recovery for water planning and
management; and
(e) to avoid perverse or unintended
pricing outcomes.
Part 3—Water charging principles
3
Water storage and delivery
(1) Pricing
policies for water storage and delivery in rural systems are to be developed to
facilitate efficient water use and trade in water entitlements.
(2) Water
charges are to include a consumption‑based component.
(3) Water
charges are to be based on full cost recovery for water services to
ensure business viability and avoid monopoly rents, including recovery of
environmental externalities where feasible and practical.
(4) Water
charges in the rural water sector are to continue to move towards upper bound
pricing where practicable.
(5) In subclause (4):
upper bound pricing means the level at which,
to avoid monopoly rents, a water business should not recover more than:
(a) the operational, maintenance and
administrative costs, externalities, taxes or tax equivalent regimes; and
(b) provision for the cost of asset
consumption; and
(c) provision for the cost of capital
(calculated using a weighted average cost of capital).
(6) If
full cost recovery is unlikely to be achieved and a Community Service
Obligation is deemed necessary:
(a) the
size of the subsidy is to be reported publicly; and
(b) where
practicable, subsidies or Community Service Obligations are to be reduced or
eliminated.
(7) Pricing
policies should ensure consistency across sectors and jurisdictions where
entitlements are able to be traded.
4 Cost
recovery for planning and management
(1) All costs
associated with water planning and management must be identified, including the
costs of underpinning water markets (such as the provision of registers,
accounting and measurement frameworks and performance monitoring and
benchmarking).
(2) The proportion of costs that can be attributed
to water access entitlement holders is to be identified consistently with the
principles set out in subclauses (3) and (4).
(3) Water planning and management charges are
to be linked as closely as possible to the costs of activities or products.
(4) Water
planning and management charges are to exclude activities undertaken for the
Government (such as policy development and Ministerial or Parliamentary
services).
(5) States
and Territories are to report publicly on cost recovery for water planning and
management annually. The reports are to include:
(a) the
total cost of water planning and management; and
(b) the
proportion of the total cost of water planning and management attributed to water
access entitlement holders, and the basis upon which this proportion is
determined.
5
Environmental externalities
(1) Market‑based
mechanisms (such as pricing to account for positive and negative environmental
externalities associated with water use) are to be pursued where feasible.
(2) The
cost of environmental externalities is to be included in water charges where
found to be feasible.
6 Benchmarking and efficiency reviews
(1) Independent
and public benchmarking or efficiency reviews of pricing and service quality
relevant to regulated water charges is or are to be undertaken based on a
nationally consistent framework.
(2) The
costs of operating these benchmarking and efficiency review systems are to be
met through recovery of regulated water charges.
Schedule 3—Basin water market and trading objectives and principles
Note: See section 4.
1
Definitions
In this Schedule:
exchange rate means the rate of conversion to
be applied to water to be traded from one trading zone and/or jurisdiction to
another.
trading zones means zones established to simplify
administration of a trade by setting out the known supply source or management
arrangements and the physical realities of relevant supply systems within the
zone so that trade can occur within and between zones without first having to
investigate and establish the details and rules of the system in each zone.
water access entitlement tagging means an
accounting approach that allows a water access entitlement that is traded from
one jurisdiction or trading zone to another jurisdiction or trading zone to
retain its original characteristics when traded to the new jurisdiction or
trading zone (rather than being converted into a form issued in the new
jurisdiction or trading zone).
2
Objectives and principles
This Schedule sets out:
(a) the Basin water market and trading
objectives; and
(b) the Basin water market and trading
principles.
Note 1: These objectives and principles are relevant to
the formulation of:
(a) the provisions of the Basin Plan (see item 12
of the table in subsection 22(1)); and
(b) the provisions of water management plans for
particular water resource plan areas (see subsection 22(3)); and
(c) the provisions of the water market rules (see
paragraph 97(1)(b)).
Note 2: These objectives and principles are based on
those set out in clauses 58 to 63 and Schedule G of the National Water
Initiative when Part 2 of this Act commences.
3
Basin water market and trading objectives
The objectives of the water market and
trading arrangements for the Murray‑Darling Basin are:
(a) to facilitate the operation of
efficient water markets and the opportunities for trading, within and between
Basin States, where water resources are physically shared or hydrologic
connections and water supply considerations will permit water trading; and
(b) to minimise transaction cost on
water trades, including through good information flows in the market and
compatible entitlement, registry, regulatory and other arrangements across
jurisdictions; and
(c) to enable the appropriate mix of
water products to develop based on water access entitlements which can be
traded either in whole or in part, and either temporarily or permanently, or
through lease arrangements or other trading options that may evolve over time;
and
(d) to recognise and protect the needs
of the environment; and
(e) to provide appropriate protection
of third‑party interests.
4
Basin water market and trading principles
(1) This clause sets out the Basin water
market and trading principles.
(2) Water access entitlements may be traded
either permanently, through lease arrangements, or through other trading
options that may evolve over time, if water resources are physically shared or
hydrologic connections and water supply considerations would permit water
trading.
(3) All trades should be recorded on a water
register. Registers will be compatible, publicly
accessible and reliable, recording information on a whole of catchment basis,
consistent with the National Water Initiative.
(4) Restrictions on extraction, diversion or
use of water resulting from trade can only be used to manage:
(a) environmental impacts, including
impacts on ecosystems that depend on underground water; or
(b) hydrological, water quality and
hydro‑geological impacts; or
(c) delivery constraints; or
(d) impacts on geographical features
(such as river and aquifer integrity); or
(e) features of major indigenous,
cultural heritage or spiritual significance.
(5) A trade may be refused on the basis that
it is inconsistent with the relevant water resource plan.
(6) Trades must not result in the long‑term
annual diversion limit being exceeded. That is, trades must not:
(a) cause an increase in commitments
to take water from water resources or parts of water resources; or
(b) increase seasonal reversals in
flow regimes;
above sustainable levels identified in relevant water
resource plans such that environmental water or water dependent ecosystems are
adversely affected.
(7) Trades within overallocated water
resources (including ground water resources) may be permitted in some cases
subject to conditions to manage long‑term impacts on the environment and other
users.
(8) Where necessary, water authorities will
facilitate trade by specifying trading zones and providing related information
such as the exchange rates to be applied to trades in water allocations to:
(a) adjust for the effects of the
transfer on hydrology or supply security (transmission losses) or reliability;
and
(b) reflect transfers between
different classes of water resources, unregulated streams, regulated streams,
supplemented streams, ground water systems and licensed runoff harvesting dams.
(9) Water trading zones, including ground
water trading zones, should be defined in terms of:
(a) the ability to change the point of
extraction of the water from one place to another; and
(b) the protection of the environment.
The volume of delivery losses in supplemented systems that
provide opportunistic environmental flows will be estimated and taken into
account when determining the maximum volume of water that may be traded out of
a trading zone.
(10) Exchange rates must not be used to achieve
other outcomes such as to alter the balance between economic use and
environmental protection or to reduce overall water use.
(11) Trade in water allocations may occur
within common aquifers or surface water flow systems consistent with water
resource plans.
(12) Trade from a licensed runoff harvesting
dam (that is, not a small farm dam) to a river may occur subject to:
(a) a reduction in dam capacity
consistent with the transferred water access entitlement; or
(b) retention of sufficient capacity
to accommodate evaporative and infiltration losses; or
(c) conditions specified in water
resource plans to protect the environment.
(13) Compatible
institutional and regulatory arrangements will be pursued to improve intrastate
and interstate trade, and to manage differences in entitlement reliability,
supply losses, supply source constraints, trading between systems and cap
requirements.
(14) The transfer of water allocations and
entitlements will be facilitated (where appropriate) by water access
entitlement tagging, water access entitlement exchange rates or other trading
mechanisms that may evolve over time.
(15) Institutional, legislative and
administrative arrangements will be introduced to improve the efficiency and
scope of water trade and to remove barriers that may affect potential trade.
(16) Barriers to permanent trade out of water
irrigation areas up to an annual threshold limit of 4% of the total water
entitlement of that area will be immediately removed, subject to a review by
2009 by the National Water Commission under paragraph 7(2)(h) of the National
Water Commission Act 2004, with a move to full and open trade by 2014 at
the latest.
(17) Subject to this clause, no new barriers to
trade will be imposed, including in the form of arrangements for addressing
stranded assets.
Schedule 3A—Risk assignment framework
Note: See section 74A.
Part 1—Clauses 48 to 50 of the National Water Initiative
48. Water
access entitlement
holders are to bear the risks of any reduction or less reliable water
allocation, under their water access entitlements, arising from
reductions to the consumptive pool as a result of:
(i)
seasonal or long‑term changes in climate; and
(ii) periodic natural events such as bushfires and
drought.
49.
The
risks of any reduction or less reliable water allocation under a water
access entitlement, arising as a result of bona fide improvements in the
knowledge of water systems’ capacity to sustain particular extraction levels
are to be borne by users up to 2014. Risks arising under comprehensive water
plans commencing or renewed after 2014 are to be shared over each ten year
period in the following way:
i) water access entitlement holders to bear the first
3% reduction in water allocation under a water
access entitlement;
ii) State/Territory governments and the Commonwealth Government
to share one‑third and two‑thirds respectively reductions in water allocation
under water
access entitlements of between 3% and 6%; and
iii) State/Territory and Commonwealth governments to equally
share reductions in water allocation under water access entitlements greater than 6%.
50. Governments are to bear the risks of any
reduction or less reliable water allocation that is not previously provided
for, arising from changes in government policy (for example, new environmental
objectives). In such cases, governments may recover this water in accordance
with the principles for assessing the most efficient and cost effective
measures for water recovery.
Part 2—Clause 10.1.3 of the Agreement on Murray‑Darling Basin
Reform of 3 July 2008
10.1.3 Commonwealth undertakes to use its best endeavours to
enact legislation to amend Division 4 of Part 2 of the Water Act so
that:
In respect of
those Basin States who choose to apply the National Water Initiative risk
assignment framework:
a)
the Commonwealth’s share of a reduction in a long‑term average sustainable
diversion limit includes, in any 10 year period, all of the new knowledge
components of the reductions that exceed three per cent of the relevant
diversion limit; and
b)
for a water resource plan area in the Murray‑Darling Basin with a transitional
or interim water resource plan, the Commonwealth will take responsibility for
its share of the new knowledge component of a reduction in the long‑term
average sustainable diversion limit for the water resources of that plan area
arising after the transitional or interim water resource plan ceases to have
effect.
Schedule 4—Transitional water resource plans
Note: See section 241.
|
Transitional
water resource plans
|
|
Item
|
Plan (Basin State)
|
Date plan ceases to
have effect
|
|
1
|
Water Resource (Warrego, Paroo, Bulloo and Nebine) Plan
2003 (Queensland)
|
1 September 2014
|
|
2
|
Water Resource (Moonie) Plan 2003 (Queensland)
|
1 September 2014
|
|
3
|
Water Resource (Border Rivers) Plan 2003 (Queensland)
|
1 September 2014
|
|
4
|
Water Resource (Condamine and Balonne) Plan 2004
(Queensland)
|
1 September 2014
|
|
5
|
Angas Bremer Prescribed Wells Area Water Allocation Plan
(South Australia)
|
2 January 2013
|
|
6
|
Mallee Prescribed Wells Area Water Allocation Plan (South
Australia)
|
21 December 2012
|
|
7
|
River Murray Prescribed Watercourse Water Allocation Plan
(South Australia)
|
1 July 2014
|
|
8
|
Noora Prescribed Wells Area Water Allocation Plan (South
Australia)
|
2 January 2013
|
|
9
|
Tenterfield Creek Water Source 2003—Water Sharing Plan
(New South Wales)
|
1 July 2014
|
|
10
|
Macquarie and Cudgegong Regulated Rivers Water Source
2003—Water Sharing Plan (New South Wales)
|
1 July 2014
|
|
11
|
Castlereagh River above Binnaway Water Source 2003—Water
Sharing Plan (New South Wales)
|
1 July 2014
|
|
12
|
Lower Macquarie Groundwater Sources 2003—Water Sharing
Plan (New South Wales)
|
30 June 2017
|
|
13
|
Gwydir Regulated River Water Source 2002—Water Sharing
Plan (New South Wales)
|
1 July 2014
|
|
14
|
Rocky Creek, Cobbadah, Upper Horton and Lower Horton Water
Source 2003—Water Sharing Plan (New South Wales)
|
1 July 2014
|
|
15
|
Lower Gwydir Groundwater Source 2003—Water Sharing Plan (New
South Wales)
|
30 June 2017
|
|
16
|
Lachlan Regulated River Water Source 2003—Water Sharing
Plan (New South Wales)
|
1 July 2014
|
|
17
|
Mandagery Creek Water Source 2003—Water Sharing Plan (New
South Wales)
|
1 July 2014
|
|
18
|
New South Wales Murray and Lower Darling Regulated Rivers
Water Sources 2003—Water Sharing Plan (New South Wales)
|
1 July 2014
|
|
19
|
Upper Billabong Water Source 2003—Water Sharing Plan (New
South Wales)
|
1 July 2014
|
|
20
|
Lower Murray Groundwater Source—Water Sharing Plan (New
South Wales)
|
30 June 2017
|
|
21
|
Murrumbidgee Regulated River Water Source 2003—Water
Sharing Plan (New South Wales)
|
1 June 2014
|
|
22
|
Adelong Creek Water Source 2003—Water Sharing Plan (New
South Wales)
|
1 June 2014
|
|
23
|
Tarcutta Creek Water Source 2003—Water Sharing Plan (New
South Wales)
|
1 July 2014
|
|
24
|
Lower Murrumbidgee Groundwater Sources 2003—Water Sharing
Plan (New South Wales)
|
30 June 2017
|
|
25
|
Upper Namoi and Lower Namoi Regulated River Water Sources
2003—Water Sharing Plan (New South Wales)
|
1 July 2014
|
|
26
|
Phillips Creek, Mooki River, Quirindi Creek and Warrah
Creek Water Sources 2003—Water Sharing Plan (New South Wales)
|
1 July 2014
|
|
27
|
Upper and Lower Namoi Groundwater Sources 2003—Water
Sharing Plan (New South Wales)
|
30 June 2017
|
Notes to
the Water Act 2007
Note 1
The Water Act 2007 as shown in this compilation
comprises Act No. 137, 2007 amended as indicated in the Tables below.
The Water Act 2007 was amended
by the Water Regulations 2008 (SLI 2008 No. 106 as amended by SLI
2009 No. 184). The amendments are incorporated in this compilation.
For all relevant information pertaining to application, saving
or transitional provisions see Table A.
Table of Acts
|
Act
|
Number
and year
|
Date
of Assent
|
Date of commencement
|
Application, saving or transitional
provisions
|
|
Water Act 2007
|
137, 2007
|
3 Sept 2007
|
Ss. 3–256 and Schedules 1–4: 3 Mar 2008
Remainder: Royal Assent
|
|
|
Statute Law Revision Act 2008
|
73, 2008
|
3 July 2008
|
Schedule 1 (items 59–69): (a)
|
—
|
|
Water Amendment Act 2008
|
139, 2008
|
8 Dec 2008
|
Schedules 1, 3 and 4: (b)
Schedule 2 (items 6–59, 59A, 59B, 60–63, 63A, 63B, 64–106,
106A, 107–161, 161A, 162–165): 15 Dec 2008 (see F2008L04656)
|
Sch. 3
|
|
Statute Law Revision Act 2010
|
8, 2010
|
1 Mar 2010
|
Schedule 1 (items 256–265) and Schedule 5
(items 127–134): Royal Assent
|
—
|
|
Trade Practices Amendment (Australian Consumer Law) Act
(No. 2) 2010
|
103, 2010
|
13 July 2010
|
Schedule 6 (items 1, 143): 1 Jan 2011
|
—
|
|
Statute Law Revision Act 2011
|
5, 2011
|
22 Mar 2011
|
Schedule 1 (items 118, 119): Royal Assent
|
—
|
(a) Subsection 2(1) (items 33–43) of the Statute
Law Revision Act 2008 provides as follows:
(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
|
|
33.
Schedule 1, item 59
|
Immediately
after the commencement of section 4 of the Water Act 2007.
|
3 March
2008
|
|
34.
Schedule 1, item 60
|
Immediately
after the commencement of section 11 of the Water Act 2007.
|
3 March
2008
|
|
35.
Schedule 1, item 61
|
Immediately
after the commencement of section 63 of the Water Act 2007.
|
3 March
2008
|
|
36.
Schedule 1, item 62
|
Immediately
after the commencement of section 69 of the Water Act 2007.
|
3 March
2008
|
|
37.
Schedule 1, item 63
|
Immediately
after the commencement of section 86 of the Water Act 2007.
|
3 March
2008
|
|
38.
Schedule 1, item 64
|
Immediately
after the commencement of section 92 of the Water Act 2007.
|
3 March
2008
|
|
39.
Schedule 1, item 65
|
Immediately
after the commencement of section 93 of the Water Act 2007.
|
3 March
2008
|
|
40.
Schedule 1, item 66
|
Immediately
after the commencement of section 156 of the Water Act 2007.
|
3 March
2008
|
|
41.
Schedule 1, item 67
|
Immediately
after the commencement of section 169 of the Water Act 2007.
|
3 March
2008
|
|
42.
Schedule 1, item 68
|
Immediately
after the commencement of section 170 of the Water Act 2007.
|
3 March
2008
|
|
43.
Schedule 1, item 69
|
Immediately
after the commencement of section 244 of the Water Act 2007.
|
3 March
2008
|
(b) Subsection
2(1) (items 2–4) of the Water Amendment Act 2008 provides as
follows:
(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.
|
Provision(s)
|
Commencement
|
Date/Details
|
|
2. Schedule 1
|
Immediately after the commencement of
the provision(s) covered by table item 3.
|
15 December 2008
|
|
3. Schedule 2
|
A single day to be fixed by
Proclamation.
However, if any of the provision(s)
do not commence within the period of 6 months beginning on the day on which
this Act receives the Royal Assent, they commence on the first day after the
end of that period.
|
15 December 2008 (see
F2008L04656)
|
|
4. Schedules 3 and 4
|
Immediately after the commencement of
the provision(s) covered by table item 3.
|
15 December 2008
|
Table of Amendments
|
ad. = added or inserted am. = amended rep. =
repealed rs. = repealed and substituted
|
|
Provision affected
|
How affected
|
|
Part 1
|
|
|
Heading to Div. 1 of Part 1........................................
|
rep. No. 139, 2008
|
|
S. 4......................................
|
am. Nos. 73 and 139, 2008; No. 8, 2010
|
|
S. 5......................................
|
rs. No. 139, 2008
|
|
S. 9......................................
|
am. No. 139, 2008
|
|
Notes 3, 4 to s. 9(1)...........
|
rep. No. 139, 2008
|
|
S. 9A...................................
|
ad. No. 139, 2008
|
|
S. 10....................................
|
am. No. 139, 2008
|
|
S. 11....................................
|
am. No. 73, 2008
|
|
S. 12A.................................
|
ad. No. 139, 2008
|
|
Div. 2 of Part 1...................
|
rep. No. 139, 2008
|
|
Ss. 14–18............................
|
rep. No. 139, 2008
|
|
Part 1A
|
|
|
Part 1A................................
|
ad. No. 139, 2008
|
|
Division 1
|
|
|
Ss. 18A, 18B.......................
|
ad. No. 139, 2008
|
|
Division 2
|
|
|
Ss. 18C, 18D......................
|
ad. No. 139, 2008
|
|
Division 3
|
|
|
Ss. 18E–18H.......................
|
ad. No. 139, 2008
|
|
Part 2
|
|
|
Division 1
|
|
|
Subdivision B
|
|
|
S. 21....................................
|
am. No. 139, 2008; No. 8, 2010
|
|
Note to s. 21(2)..................
|
rep. No. 139, 2008
|
|
Notes 1, 2 to s. 21(2).........
|
ad. No. 139, 2008
|
|
Note to s. 21(3)..................
|
rep. No. 139, 2008
|
|
Notes 1, 2 to s. 21(3).........
|
ad. No. 139, 2008
|
|
Note to s. 22(1)..................
|
ad. No. 139, 2008
|
|
S. 26....................................
|
am. No. 139, 2008; No. 8, 2010
|
|
Subdivision D
|
|
|
Ss. 34–36............................
|
am. No. 139, 2008
|
|
S. 37....................................
|
am. No. 139, 2008; No. 5, 2011
|
|
S. 38 ...................................
|
am. No. 8, 2010
|
|
S. 40 ...................................
|
am. No. 8, 2010
|
|
Subdivision E
|
|
|
S. 41....................................
|
am. No. 139, 2008
|
|
S. 43....................................
|
am. No. 139, 2008
|
|
S. 43A.................................
|
ad. No. 139, 2008
|
|
S. 44....................................
|
am. No. 139, 2008
|
|
Subdivision F
|
|
|
S. 45....................................
|
am. No. 139, 2008
|
|
S. 47....................................
|
am. No. 139, 2008
|
|
S. 47A.................................
|
ad. No. 139, 2008
|
|
S. 48....................................
|
am. No. 139, 2008
|
|
Subdivision G
|
|
|
S. 49A.................................
|
ad. No. 139, 2008
|
|
S. 50....................................
|
am. No. 139, 2008
|
|
S. 51 ...................................
|
am. No. 8, 2010
|
|
Division 2
|
|
|
Subdivision B
|
|
|
S. 56....................................
|
am. No. 139, 2008
|
|
Subdivision C
|
|
|
Ss. 59, 60............................
|
am. No. 139, 2008
|
|
S. 61....................................
|
am. No. 139, 2008; No. 5, 2011
|
|
S. 62 ...................................
|
am. No. 8, 2010
|
|
Subdivision D
|
|
|
S. 63....................................
|
am. No. 73, 2008
|
|
Subdivision E
|
|
|
S. 68 ...................................
|
am. No. 8, 2010
|
|
S. 69....................................
|
am. No. 73, 2008
|
|
Division 3
|
|
|
S. 73....................................
|
am. No. 5, 2011
|
|
Division 4
|
|
|
Subdivision A
|
|
|
Note 1 to s. 74(2)...............
|
am. No. 139, 2008
|
|
S. 74A.................................
|
ad. No. 139, 2008
|
|
S. 75....................................
|
am. No. 139, 2008
|
|
S. 77....................................
|
am. No. 139, 2008
|
|
Subdivision B
|
|
|
S. 81....................................
|
am. No. 139, 2008; No. 8, 2010
|
|
S. 83....................................
|
am. No. 139, 2008
|
|
S. 86....................................
|
am. No. 73, 2008
|
|
Part 2A
|
|
|
Part 2A................................
|
ad. No. 139, 2008
|
|
Ss. 86A–86H.......................
|
ad. No. 139, 2008
|
|
S. 86J..................................
|
ad. No. 139, 2008
|
|
Part 4
|
|
|
Part 4..................................
|
rs. No. 139, 2008
|
|
Division 1
|
|
|
S. 91....................................
|
rs. No. 139, 2008
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Ss. 92, 93............................
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am. No. 73, 2008
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rs. No. 139, 2008
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Ss. 94–96............................
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rs. No. 139, 2008
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Division 2
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Ss. 97–100..........................
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rs. No. 139, 2008
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Division 3
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S. 100A...............................
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ad. No. 139, 2008
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am. No. 103, 2010
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Part 4A
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Part 4A................................
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ad. No. 139, 2008
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Ss. 100B, 100C...................
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ad. No. 139, 2008
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S. 100D...............................
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ad. No. 139, 2008
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am. No. 103, 2010
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Part 6
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Division 1
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S. 105..................................
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am. No. 139, 2008
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S. 108..................................
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am. No. 139, 2008
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Part 7
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Division 2
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S. 123..................................
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am. No. 139, 2008
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Division 3
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S. 125..................................
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am. No. 139, 2008
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Part 8
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Division 1
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S. 137..................................
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am. No. 139, 2008
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Division 5
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S. 156..................................
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am. No. 73, 2008
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Division 8
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S. 169..................................
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am. No. 73, 2008
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Division 9
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S. 170..................................
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am. No. 73, 2008
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Part 9
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Division 1
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S. 172..................................
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am. No. 139, 2008
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Note to s. 172(1)(b)...........
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rs. No. 139, 2008
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Note to s. 172(1)(c)...........
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rs. No. 139, 2008
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Note to s. 172(1)................
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ad. No. 139, 2008
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S. 173..................................
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rs. No. 139, 2008
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Note to s. 174(1)................
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ad. No. 139, 2008
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S. 175..................................
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am. No. 139, 2008
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Division 2
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Subdivision B
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Ss. 177–179........................
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am. No. 139, 2008
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Subhead. to s. 180(2)........
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am. No. 139, 2008
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S. 180..................................
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am. No. 139, 2008
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Subdivision C
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Heading to s. 184 .............
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am. No. 8, 2010
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Ss. 184, 185........................
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am. No. 139, 2008
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S. 187..................................
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am. No. 139, 2008
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S. 189..................................
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am. No. 139, 2008
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Division 3
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Subdivision D
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Heading to Subdiv. D of...
Div. 3 of Part 9
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rs. No. 139, 2008
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Subhead. to s. 201(2)........
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rep. No. 139, 2008
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S. 201..................................
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am. No. 139, 2008
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Ss. 201A–201C...................
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ad. No. 139, 2008
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Subdivision E
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Heading to Subdiv. E of....
Div. 3 of Part 9
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ad. No. 139, 2008
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S. 202..................................
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am. No. 139, 2008
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Note to s. 202(2)................
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ad. No. 139, 2008
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Ss. 204, 205........................
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am. No. 139, 2008
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Division 4
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S. 206..................................
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am. No. 139, 2008
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Note to s. 207.....................
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am. No. 139, 2008
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Heading to s. 208..............
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am. No. 139, 2008
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S. 208..................................
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am. No. 139, 2008
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Division 5
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Subdivision A
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Ss. 210, 211........................
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am. No. 139, 2008
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Subdivision B
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S. 212..................................
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Subdivision CA
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Subdiv. CA of Div. 5 of .....
Part 9
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ad. No. 139, 2008
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Ss. 213A, 213B...................
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ad. No. 139, 2008
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Subdivision D
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S. 214..................................
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am. No. 139, 2008
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Part 10
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Division 1
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S. 216..................................
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am. No. 139, 2008
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Part 10A
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Part 10A..............................
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ad. No. 139, 2008
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Division 1
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Ss. 239A, 239B...................
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ad. No. 139, 2008
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Division 2
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Ss. 239C–239H..................
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ad. No. 139, 2008
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Ss. 239J–239M...................
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ad. No. 139, 2008
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Division 3
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S. 239N...............................
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ad. No. 139, 2008
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Ss. 239P–239S...................
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ad. No. 139, 2008
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Division 4
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S. 239T...............................
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ad. No. 139, 2008
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Division 5
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Ss. 239U–239W.................
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ad. No. 139, 2008
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Part 11
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Heading to Part 11............
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rs. No. 139, 2008
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Division 1
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S. 244..................................
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am. No. 73, 2008
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S. 246..................................
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am. No. 139, 2008
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Division 2
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Note to s. 248.....................
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am. No. 139, 2008
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Part 11A
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Part 11A..............................
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ad. No. 139, 2008
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Ss. 250A–250E...................
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ad. No. 139, 2008
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Part 12
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S. 252A...............................
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ad. No. 139, 2008
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S. 255A...............................
Renumbered s. 255AA ..
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ad. No. 139,
2008
No. 8, 2010
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S. 255A...............................
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ad. No. 139, 2008
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S. 255B...............................
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ad. No. 139, 2008
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S. 256..................................
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am. No. 139, 2008
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Schedule 1
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Schedule 1.........................
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rs. No. 139, 2008
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am. SLI 2008 No. 106 (as am. by SLI 2009 No. 184)
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Schedule 1A
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Schedule 1A.......................
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ad. No. 139, 2008
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Schedule 2
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Schedule 2.........................
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am. No. 139, 2008
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Schedule 3A
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Schedule 3A.......................
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ad. No. 139, 2008
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Table A
Application, saving or transitional provisions
Water Amendment Act 2008
(No. 139, 2008)
Schedule 3
1 Accrued leave (other than long service leave)
(1) If:
(a) a person’s employment by the
Murray‑Darling Basin Commission ended on the commencement of Schedule 1;
and
(b) the person became an employee of
the Authority on that commencement;
then:
(c) the Murray‑Darling Basin
Commission is not required to pay the person an amount in relation to accrued
leave that the person has not taken as at that commencement; and
(d) the Authority must recognise that
accrued leave, in relation to the person’s employment with the Authority, as if
it were leave in relation to periods of service with the Authority.
(2) This item does not apply in relation to long service
leave.
(3) This item applies despite subsection 235(2) of the Workplace
Relations Act 1996.
2 Long service leave
If a person’s employment by the Murray‑Darling Basin Commission
ended on the commencement of Schedule 1, and the person became an employee
of the Authority on that commencement:
(a) sections 11A, 11B and 11C of
the Long Service Leave Act 1976 of the Australian Capital Territory do
not apply in relation to the person’s employment by the Murray‑Darling Basin
Commission that ended on that commencement; and
Note: This means the person’s long service leave
entitlements are carried over to the person’s employment by the Authority (and
not paid out under section 11A, 11B or 11C of the Long Service Leave
Act 1976 of the Australian Capital Territory).
(b) the Long Service Leave
(Commonwealth Employees) Act 1976 does not apply in relation to the
person’s employment by the Authority that started on that commencement; and
(c) the Long Service Leave Act 1976
of the Australian Capital Territory (the ACT law) applies in
relation to the person’s employment by the Authority that started on that
commencement; and
(d) for the purposes of applying the
ACT law:
(i) the person’s period of
service with the Murray‑Darling Basin Commission that ended on that
commencement; and
(ii) any other period of
service of the person that, immediately before that commencement, was counted
as service with the Murray‑Darling Basin Commission for the purposes of the
application of the ACT law in relation to the person;
are taken to be the person’s
period of service with the Murray‑Darling Basin Commission.
3 Authority staff engaged after the commencement of Schedule 1
(1) If:
(a) immediately after the commencement
of Schedule 1, the Authority is, because of section 585 of the Workplace
Relations Act 1996, bound by a collective agreement (within the meaning of
that Act) that, immediately before that commencement, bound the Commission; and
(b) a person is engaged as a member of
the Authority staff after that commencement but before the Authority ceases, under
that Act, to be bound by the collective agreement; and
(c) the person is not engaged as an
SES employee; and
(d) the person is not a transferring
employee within the meaning of Part 11 of that Act;
that Part applies in relation to the person as if the person were
such a transferring employee in relation to the collective agreement.
(2) However:
(a) this section does not apply to the
extent (if any) that the person’s terms and conditions of employment are
provided for under a law of the Commonwealth; and
(b) this section ceases to apply to
the person if the person becomes an SES employee of the Authority.
4 Appointment of the Chief Executive
The person who, immediately before the commencement of Schedule 2,
was acting as the Authority Chair is taken, from that commencement, to be the
Chief Executive as if he or she had been appointed under section 178 of
the Water Act 2007 as amended by this Act.
5 Performance of Authority functions etc. before a quorum is
appointed
(1) Until this item ceases to apply under subitem (2):
(a) the Chief Executive may perform
any of the functions of the Authority and exercise any of its powers; and
(b) anything done by the Chief
Executive in performing those functions or exercising those powers is taken to
have been done by the Authority.
(2) This item ceases to apply:
(a) at the end of the period of 6
months, or such longer period specified in the regulations, after the
commencement of Schedule 2; or
(b) when sufficient members of the
Authority have been appointed to constitute a quorum of members at a meeting of
the Authority;
whichever happens first.
(3) Regulations for the purposes of paragraph (2)(a)
must not specify a period exceeding 12 months.
6 Authorised officers
(1) After the commencement of Schedule 1, a person
who:
(a) is a member of the Authority
staff; and
(b) was, immediately before that
commencement, a person:
(i) authorised by the Murray‑Darling
Basin Commission under section 14 of the Murray‑Darling Basin Act 1992
of New South Wales; or
(ii) authorised by the Murray‑Darling
Basin Commission under section 13 of the Murray‑Darling Basin Act 1993
of Victoria; or
(iii) authorised by the Murray‑Darling
Basin Commission under section 13 of the Murray‑Darling Basin Act 1993
of South Australia;
is taken to be an authorised
officer.
(2) However, unless the person is appointed as an
authorised officer under section 217 of the Water Act 2007 as
amended by this Act, he or she can only exercise the powers of an authorised
officer to the extent that the powers are exercised in relation to the
Authority’s functions under Part 1A of that Act.
7 Delegation to the Chief Executive
The Authority is taken, immediately after the commencement of
Schedule 1, to have delegated under section 199 of the Water Act
2007 as amended by this Act all of its functions and powers under that Act
(other than its functions and powers under Subdivisions E, F and G of Division 1
of Part 2) to the Chief Executive.
8 Indemnity
(1) The Commonwealth must indemnify:
(a) a person appointed in accordance
with subclause 20(1) of the former MDB Agreement as the President; or
(b) a person appointed in accordance
with subclause 20(3) of the former MDB Agreement as the Deputy President of the
Murray‑Darling Basin Commission;
for any liability that he or she incurs for an act or omission of
the person, before the commencement of Schedule 1, in the course of
performing his or her duties as the President or Deputy President (including,
in the case of the Deputy President, his or her duties when acting as the
President).
Note: The Agreement provides for the Basin States to
indemnify the Commonwealth for a share of the costs associated with any
indemnity covered by this subitem.
(2) The Commonwealth must indemnify a Commissioner for
any liability:
(a) to which subitem (1) does not
apply; and
(b) that the Commissioner incurs for
an act or omission of the Commissioner, before the commencement of Schedule 1,
in the course of performing his or her duties as a Commissioner.
Note: The Agreement provides for the State in
relation to whom the Commissioner was appointed to indemnify the Commonwealth
for the costs associated with any indemnity covered by this subitem.
(3) The Commonwealth must indemnify an officer (within
the meaning of the former MDB Agreement) for any liability that the officer
incurs for an act or omission of the officer, before the commencement of
Schedule 1, in the course of performing his or her duties as an officer.
Note: The Agreement provides for the Basin States to
indemnify the Commonwealth for a share of the costs associated with any
indemnity covered by this subitem.
(4) This item only applies if the liability arose from
an act or omission in good faith.
9 Regulations
(1) Without limiting subsection 256(1) of the Water
Act 2007, regulations under that subsection may provide for:
(a) the transfer of employees from the
Murray‑Darling Basin Commission to the Authority, including the preservation of
some or all of the entitlements and obligations of the employees of the Murray‑Darling
Basin Commission; or
(b) staffing procedures of the Murray‑Darling
Basin Commission to apply, or to continue to apply, in relation to:
(i) processes begun
before, but not completed by, the time this Part commences; or
(ii) things done by, for or
in relation to the Murray‑Darling Basin Commission or an employee of the Murray‑Darling
Basin Commission before that time; or
(c) staffing procedures of the
Authority to apply in relation to:
(i) processes begun
before, but not completed by, that time; or
(ii) things done by, for or
in relation to the Murray‑Darling Basin Commission before that time.
(2) Regulations made for the purposes of this item have
effect despite the Public Service Act 1999.
(3) In this item:
staffing procedures includes procedures and policies
related to:
(a) recruitment, promotion or
performance management; or
(b) inefficiency, misconduct,
forfeiture of position, fitness for duty or loss of essential qualifications;
or
(c) disciplinary action, grievance
processes or reviews of or appeals against staffing decisions; or
(d) transfers, resignations or
termination of employment; or
(e) leave.