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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
WATER AMENDMENT BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Climate Change and Water,
Senator the Honourable Penny Wong)
WATER AMENDMENT BILL 2008
GENERAL OUTLINE
1. THE PURPOSE OF THE WATER AMENDMENT BILL 2008 (THE BILL) IS TO
AMEND THE WATER ACT 2007 (THE ACT), TO GIVE EFFECT TO THE
INTERGOVERNMENTAL AGREEMENT ON MURRAY-DARLING BASIN REFORM (REFORM
IGA) SIGNED BY THE PRIME MINISTER AND FIRST MINISTERS OF EACH OF NEW
SOUTH WALES, VICTORIA, SOUTH AUSTRALIA, QUEENSLAND AND THE AUSTRALIAN
CAPITAL TERRITORY (THE BASIN STATES UNDER THE ACT) AT THE 3 JULY 2008
MEETING OF THE COUNCIL OF AUSTRALIAN GOVERNMENTS (COAG).
2. The Reform IGA has also resulted in the negotiation of a revised
Murray-Darling Basin Agreement (the revised Agreement) which will come
into effect at the same time as this Bill commences.
3. The Bill will enable water resources in the Murray-Darling Basin
to be managed in the national interest, optimising environmental,
economic and social outcomes.
4. The Bill complements the Commonwealth Government's
$12.9 billion, Water for the Future plan announced by the Minster for
Climate Change and Water on 29 April 2008.
5. The $12.9 billion of funding under Water for the Future is not
specifically addressed in the Bill. However, this funding supports
governance and water resource management reforms and includes:
. establishing the Murray-Darling Basin Authority;
. improving water information;
. sustainable rural water use and infrastructure programs; and
. purchasing water to improve the health of the rivers and wetlands
in the Murray-Darling Basin.
6. This Bill relies on the Commonwealth's constitutional powers and
a referral of powers to the Commonwealth by New South Wales, Victoria,
South Australia and Queensland (the referring States) to enact certain
measures. These measures include:
. transfer of the current powers and functions of the Murray-Darling
Basin Commission as set out in the former Murray-Darling Basin
Agreement, to the new Murray-Darling Basin Authority;
. strengthening of the role of the Australian Competition and
Consumer Commission (ACCC) by extending the application of the
water market rules and water charge rules to cover, respectively,
all bodies that charge regulated water charges and all irrigation
infrastructure operators, and by providing for any State or
Territory to 'opt in' such that the water market and water charge
rules apply to water resources outside the Murray-Darling Basin;
and
. enabling the Basin Plan to provide for critical human water needs.
7. The Bill has been informed by, and progresses, 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 (National
Water Initiative).
8. Schedule 1 of this Bill identifies those amendments that rely in
part on the referrals of powers from referring State Parliaments.
Schedule 2 of this Bill identifies other amendments to the Act, the
Trade Practices Act 1974 and the Legislative Instruments Act 2003
arising from the Reform IGA, or of a minor technical nature. Schedule
3 deals with transitional matters relating to the reforms implemented
by this Bill, which do not rely on a referral of powers.
9. The Bill repeals the Murray-Darling Basin Act 1993, and provides
for the revised Agreement to be scheduled to the Act.
10. Substantive amendments to the Act are summarised below.
Murray-Darling Basin Authority
11. The Bill will give effect to a key outcome of the Reform IGA
bringing the Murray-Darling Basin Authority (established by the
current Act) and the Murray-Darling Basin Commission (established by
the current Murray-Darling Basin Agreement) together as a single
institution, to be known as the Murray-Darling Basin Authority.
12. This means the Authority will have some additional functions,
powers and duties conferred by the revised Agreement and the Bill.
These functions were previously undertaken by the Murray-Darling Basin
Commission.
13. The Authority will implement decisions made by a new Ministerial
Council and the Basin Officials Committee (both to be established by
the revised Agreement) relating to matters such as State water shares
and natural resource management programs. The Authority will also
prepare a corporate plan annually for approval by the Ministerial
Council in relation to these functions.
14. The Authority will have 6 members, comprising a part-time Chair,
a full-time Chief Executive and four other part-time members.
Ministerial Council and Basin Officials Committee
15. The new Ministerial Council will be established by the revised
Agreement and will have an advisory role in the preparation of the
Basin Plan by the Authority.
16. The Authority will provide the proposed Basin Plan to the
Ministerial Council. The Council can refer the proposed Basin Plan
back to the Authority once for reappraisal if it disagrees about
certain matters. The Ministerial Council can then provide its views on
the proposed Basin Plan to the Commonwealth Minister. When the Basin
Plan is first made, the Authority must also advise the Council on the
socio-economic implications of any reductions in the sustainable
diversion limits in the proposed Basin Plan.
17. The Authority is also required to provide advice to the
Ministerial Council on the impacts of the Basin Plan five years after
it first takes effect.
18. Provisions relating to the establishment of the new Ministerial
Council and the Basin Officials Committee, and their respective
functions and decision-making powers for matters such as State water
shares and natural resource management programs, are set out in the
revised Agreement. However, the Bill does provide for the appointment
of the Commonwealth member of the Basin Officials Committee, who is
the Committee Chair.
The Basin Plan
19. The current Act provides for a Basin Pan for the water resources
of the Murray-Darling Basin (see Part 2 of the Act). The Bill expands
the mandatory content of the Basin Plan to include arrangements for
critical human water needs for those communities dependent on the
waters of the River Murray System, excluding communities dependent on
the waters of the Edward-Wakool System downstream of Stevens Weir,
near Deniliquin in New South Wales. Critical human water needs and the
River Murray System are defined in the Bill.
20. The Basin Plan will specify the volume of water required to meet
critical human water needs in South Australia, New South Wales and
Victoria, the conveyance water in the River Murray System (as far
downstream as Wellington in South Australia) required to deliver
critical human needs water, the conditions under which special water
sharing arrangements are implemented and the process that will apply
in times of low water availability.
Australian Competition and Consumer Commission (ACCC)
21. The amendments provide for a uniform approach to regulation by
extending the ACCC's regulatory role within the Murray-Darling Basin.
22. The water market rules and the water charge rules provided for
in the Act will apply to all water service providers that charge
regulated water charges, and their transactions, not just those
entities and transactions within the scope of the Commonwealth's
constitutional powers.
23. The water charge rules will be able to provide that the ACCC
determines or approves all regulated water charges in the Basin, other
than charges relating to urban water supply activities beyond the
point at which the water has been removed from a Basin water resource.
24. The Bill also provides that Basin States can opt to extend the
geographical application of the ACCC's regulatory role for water
markets and water charges to areas outside of the Basin to achieve a
uniform approach to regulation in their State. This 'opt in' provision
is also available to Western Australia, Tasmania and the Northern
Territory (noting that Western Australia and Tasmania would need to
refer powers in addition to 'opting-in' in order to participate).
Allocation of risks in relation to reductions in water availability
25. The Bill will give effect to the Commonwealth's commitment in
the Reform IGA to take on a greater share of the risks relating to
future reductions in water allocations in the Murray-Darling Basin
(arising from a reduction of the long-term sustainable diversion limit
but not from a change in water reliability resulting from other
aspects of the Basin Plan) and to bring forward the date on which the
new knowledge component of that risk becomes a Commonwealth
responsibility. The Commonwealth's acceptance of a greater share of
risk, and bringing forward of the date at which it becomes responsible
for the new knowledge component of that risk is contingent on the
Basin States enacting legislation in their jurisdiction to give effect
to the remaining share of risk that remains a State responsibility.
FINANCIAL IMPACT STATEMENT
26. COSTINGS FOR THE MEASURES UNDER WATER FOR THE FUTURE WERE AGREED
BY THE COMMONWEALTH GOVERNMENT IN APRIL 2008 TO AN OVERALL AMOUNT OF
$12.9 BILLION ('TOTAL RESOURCING' BASIS) OVER 10 YEARS.
27. The Murray-Darling Basin Authority will retain the fees and
charges, if any, that it collects for cost-recovery purposes.
NOTES ON INDIVIDUAL CLAUSES
CLAUSE 1 - SHORT TITLE
28. This is a formal provision setting out how the Act is to be
cited, that is the Water Amendment Act 2008.
Clause 2 - Commencement
29. This clause provides a table that sets out the commencement
dates of the various sections in, and Schedules to, the Bill.
30. Because Schedule 1 of this Bill relies in part on referrals of
power from the referring States, it is only able to be enacted and to
commence after the referring States have passed legislation through
their Parliaments referring the necessary powers to the Commonwealth
and that legislation has commenced.
Clause 3 - Schedule(s)
31. This clause is the formal enabling provision providing that each
Act specified in a Schedule is amended or repealed as set out in that
Schedule.
SCHEDULE 1 - Amendments based on referrals of power
Water Act 2007
Item 1 - After Part 1
Part 1A - The Murray-Darling Basin Agreement
32. This item inserts a new Part 1A which sets out definitions of
particular relevance to the referred Parts of this Bill, provides for
the amendment of the text of the revised Agreement set out in Schedule
1 and the status of protocols made under Schedules to the revised
Agreement, and confers on the Authority and Basin Community Committee
functions and powers set out in the revised Agreement.
Division 1 - Preliminary
18A Definitions
33. Section 18A includes definitions of particular relevance to the
referred provisions of the Bill. It defines the term Agreement to
mean the revised Agreement, as amended from time to time in accordance
with that Agreement and set out in Schedule 1. The parties to the
revised Agreement are the Commonwealth, New South Wales, Victoria,
South Australia, Queensland and the Australian Capital Territory.
34. The Agreement will come into effect on commencement of the Bill,
which will insert the Agreement as a Schedule to the Act.
35. The note under this definition clarifies that the Agreement
operates as an agreement between the parties, but notes that further
certain clauses in the Bill (such as proposed sections 18D and 18E)
will give some legislative effect to the Agreement.
36. Section 18A also defines the terms Authority, Basin Officials
Committee, Murray-Darling Basin and Murray-Darling Basin Ministerial
Council.
18B Referring States
37. Section 18B defines when a State will be a referring State. In
summary, a State will be a referring State if the Parliament of the
State has referred the following to the Parliament of the
Commonwealth:
(a) if the State is a Basin State, the power to enact Parts 1A, 2A,
4, 4A, 10A and 11A of the Bill, and the Schedules in the Bill
included for the purposes of those Parts (Schedules 1 and 1A),
and if the State is not a Basin State, the power to enact Part
4A of Schedule 1 of the Bill (see subsections 18B(1), (3) and
(10) (definitions of initial reference and referred
provisions)); and
(b) a limited subject matter reference that allows the Parliament of
the Commonwealth to make express amendments to the text referred
to in paragraph (a) referred by the State in question (see
subsections 18B(1),(4) and (10) (definitions of amendment,
amendment reference, express amendment and referred subject
matters)).
38. Amendments include the insertion, omission, repeal,
substitution, addition or relocation of words or matter. The reference
to insertion, substitution and addition are broad enough to include
the insertion, substitution or addition of new substantive matter.
39. The Agreement on Murray-Darling Basin Reform - Referral
(Referral IGA) will provide that the Commonwealth will not make any
amendments to Parts 1A, 2A, 4, 4A, 10A and 11A and Schedule 1 as
inserted into the Act by this Bill without the agreement of all
referring Basin States.
40. A State ceases to be a referring State if the Parliament of the
State repeals its initial reference of powers, referred to in
paragraph 37(a) above (subsection 18B(5)).
41. A State can remain part of the scheme if it terminates only its
amendment reference described in paragraph 37(b) above in two
circumstances (subsection 18B(6)):
a) if it gives at least six months notice of the termination and if
every other referring State terminates its amendment reference
on the same day (subsection 18B(7)); or
b) if a Bill is introduced into the Commonwealth Parliament that:
. includes a proposed amendment of the referred provisions; or
. effectively removes subsections 22(10), (11) and (12) or
Part 11A; and
the State in question has not agreed to the amendment and the
State Governor gives a notice of the State's intention to
terminate and the Bill is enacted (subsection 18B(8)).
42. The State referral bills complementary to this section of the
Bill will have the effect that if a State terminates its amendment
reference in accordance with subsections 18B(7) or (8), the operation
of the referred provisions of the Act vis-à-vis that State based on
the reference will be preserved as they were in force at the point in
time immediately prior to the termination.
43. A State will not cease to be a referring State simply because
the State reference legislation provides that the reference to the
Commonwealth Parliament of either or both of the matters it has
referred are to terminate in particular circumstances
(subsection 18B(2)).
44. The amendment reference will not restrict the capacity of the
Commonwealth Parliament to amend the Act in reliance on the
legislative powers that it has apart from the references.
Division 2 - The Murray-Darling Basin Agreement
18C Amendment of Schedule 1
45. Section 18C enables regulations to be made to amend Schedule 1
to update the text of the revised Agreement set out in the Schedule 1
when amendments are made to that Agreement (subsection 18C(1)). Note 1
clarifies that under the revised Agreement, amendments to the
Agreement can only be made if agreed to by the Ministerial Council.
Note 2 confirms that amendments to the revised Agreement operate as an
agreement between the parties and that an amendment of Schedule 1
alone, without amendment of the revised Agreement in accordance with
its amendment provisions, cannot amend the Agreement.
46. This Henry VIII style regulation making power (or in other words
power to amend an Act by regulations) is considered necessary in the
limited context of amending the text of the Agreement as set out in
Schedule 1. As an intergovernmental agreement, the revised Agreement
can be amended through the agreement of all participating
jurisdictions. The regulation making power will ensure that an up to
date version of the Agreement is at all times included in Schedule 1
to the Act. This Bill does not otherwise provided for the Act to be
modified by regulations.
47. Subsection 18C(2) clarifies that amendments to the text of the
Agreement set out in Schedule 1 can encompass a broad scope of changes
to words and matter including insertion, omission, repeal,
substitution, addition or relocation. This broad scope for amendments
ensure that if the Ministerial Council includes new substantive matter
into the Agreement, this can be reflected in Schedule 1.
48. Subsection 18C(3) provides that these regulations are not
subject to the sunsetting provisions in Part 6 of the Legislative
Instruments Act 2003. This exemption is required in order to
facilitate the operation of an intergovernmental agreement involving
the Commonwealth and the Basin States.
18D Protocols made by the Authority
49. Section 18D provides that any protocols made by the Authority
under a Schedule to the Agreement (the text of which is set out in
Schedule 1) are legislative instruments within the meaning of section
5 of the Legislative Instruments Act 2003. The protocols will allow
the Authority to develop operating rules and procedures to give effect
to the Schedules made under the Agreement from time to time.
50. These protocols are not however subject to the disallowance
provisions in Part 5 of the Legislative Instruments Act 2003 (the
purpose of which is to provide for scrutiny by the Parliament of
legislative instruments) or the sunsetting provisions in Part 6 of the
Legislative Instruments Act 2003 (the purpose of which is to ensure
that legislative instruments are up to date and in force for only so
long as they are needed).
51. Subsections 44(1) and 54(1) of the Legislative Instruments Act
2003, respectively, allow for exceptions to disallowance and
sunsetting in respect of instruments made under enabling legislation
that facilitates an intergovernmental scheme involving the
Commonwealth and one or more States in order to preserve the intended
operation of the scheme. The Water Amendment Act 2008 will be such
enabling legislation and protocols would fall under these subsections.
The express statement to this effect in section 18D is for the
avoidance of doubt.
18E Additional functions, powers and duties of the Authority
52. Section 18E of Part 1A transfers functions, powers and duties of
the Murray-Darling Basin Commission to the Murray-Darling Basin
Authority, as provided for in the Reform IGA.
53. Section 18E confers on the Authority the functions, powers and
duties expressed to be conferred on it by or under the Agreement,
insofar as they relate to the water and other natural resources of the
Murray-Darling Basin, and requires the Authority to comply with the
Agreement in exercising these functions (subsections 18E(1) and (2)),
in addition to the requirements of the Act. These functions and powers
are in addition to those conferred by or under sections 172 and 173 of
the Act.
54. Subsections 18E(3) to (6) ensure that the Authority has the
necessary power to perform its functions and duties and exercise the
powers conferred on it under this Part. For example subsection 18E(3)
ensures that the Authority's powers to acquire, hold and dispose of
real and personal property, to contract and to lease land provided for
in section 173 of the Act can be used to fulfil its functions and
duties under Part 1A.
55. Subsection 18E(4) limits the Authority's ability to exercise its
powers under Part 10 of the Act in relation to the performance of its
functions conferred by or under the Agreement. The Authority may
appoint authorised officers, enter land other than for compliance
purposes, and gather information for the purposes of Part 1A (under
Subdivisions A and B of Division 2, and Division 3 of Part 10).
However, an authorised officer does not have the power to enter land
under Subdivision C of Part 10 for the purpose of monitoring
compliance with Part 1A or searching for evidence of a breach of the
provisions of Part 1A.
56. Importantly, the Authority's powers to enter land and gather
information in order to perform its functions and duties under Part 1A
are subject to the same restrictions as the Authority's general powers
to enter land and gather information for the performance of its other
functions (subsection 18E(6)). These restrictions include, for
example, a requirement that any entry into land is reasonably
necessary for the performance of the Authority's functions.
57. A note to section 18E clarifies that the conferral of these
functions and powers on the Authority does not otherwise give the
Agreement effect as a Commonwealth law.
18F Additional functions, powers and duties of the Basin Community
Committee
58. Section 18F confers on the Basin Community Committee the
functions, powers and duties that are expressed to be conferred on it
by or under the Agreement, insofar as they relate to the water and
other natural resources of the Murray-Darling Basin, and requires the
Committee to comply with the Agreement in performing these functions
in addition to the requirements of the Act. These functions are in
addition to those conferred under section 202(2) of the Act.
59. A note to section 18F clarifies that the conferral of these
functions and powers on the Basin Community Committee does not
otherwise give the Agreement effect as a Commonwealth law.
18G Management of Money and Assets
60. Section 18G requires the Authority to deal with any money or
assets it acquires under the Agreement in accordance with the terms of
the Agreement and its purpose.
18H Managing water access rights etc. for the Living Murray Initiative
61. Section 18H requires the Authority, if so provided for under the
Living Murray Initiative, to manage the water rights and interests
held under the Living Murray Initiative, in accordance with, and to
give effect to, the Initiative. The Living Murray Initiative is
defined in subsection 18G(2).
Item 2 - After Part 2
Part 2A - Critical human water needs
62. This item inserts a new Part 2A, which requires the Basin Plan
to include certain arrangements for meeting critical human water needs
as provided for in the Reform IGA.
86A Critical human water needs to be taken into account in developing the
Basin Plan
63. This section requires critical human water needs to be taken
into account in the preparation of the Basin Plan, having regard to
the following specific principles agreed in the 3 July 2008 Reform
IGA:
. that critical human water needs are the first priority water use
for communities dependent on Basin water resources (paragraph
86A(1)(a)); and
. that conveyance water will receive the first priority from
available water in the River Murray System (paragraph 86A(1)(b)).
64. Definitions for the terms critical human water needs, the River
Murray System and conveyance water are set out in subsections 86A(2),
86A(3) and 86A(4), respectively.
86B Basin Plan to provide for critical human water needs
65. This section outlines the mandatory matters relating to critical
human water needs to be included in the Basin Plan. They are to:
. state the amount of water required in New South Wales, Victoria and
South Australia to meet critical human water needs of communities
dependent on the River Murray System (paragraph 86B(1)(a));
. state the amount of conveyance water required to distribute water
to these communities, (paragraph 86B(1)(b)); and
. specify water quality and salinity trigger points at which water in
the River Murray System is unsuitable for meeting human needs
(paragraph 86B(1)(c)).
66. Subsection 86B(2) clarifies that the communities dependent on
the River Murray System referred to in paragraph 86B(1)(a) do not
include those dependent on the Edward-Wakool System downstream of
Stevens Weir, which is near Deniliquin in New South Wales.
86C Additional matters relating to monitoring, assessment and risk
management
67. This section outlines additional matters that must be specified
in the Basin Plan relating to critical human water needs. These
include:
. arrangements for monitoring of matters relevant to critical human
water needs including water quality and quantity, ecosystem health
and social impact; and
. a risk assessment and management process to support water sharing
arrangements for critical human water needs in the River Murray
System (including inflows from the Snowy Mountains Hydro Scheme,
which transfers significant net quantities of water from the Snowy
Catchment into the Murray-Darling Basin).
68. The Basin Plan will also provide for inter-annual planning to
inform decisions about how water is allocated for all uses in order to
meet critical human water needs in future years.
86D Additional matters relating to Tier 2 water sharing arrangements
69. State water sharing arrangements are the provisions of the
Agreement that deal with the sharing of surface water in the River
Murray System (section 86D(4)). These arrangements are relevant to New
South Wales, Victoria and South Australia.
70. Part X of the Agreement provides for a three tier system of
water sharing arrangements in the River Murray System, and provides
that the triggers for moving between the tiers are the triggers set
out in the Basin Plan. Tier 1 arrangements are state water sharing
arrangements for periods of normal water availability. Tier 2 water
sharing arrangements apply when there is not enough water under Tier 1
sharing arrangements to meet conveyance water needs. Tier 3 water
sharing arrangements apply in extreme and unprecedented circumstances.
71. Section 86D provides that the Basin Plan must specify the
conditions that would require Tier 2 water sharing arrangements to
apply and the conditions under which Tier 1 arrangements would resume.
72. A reserves policy for application in periods in which Tier 2
applies must also be specified in the Basin Plan. This policy will
specify the annual volume of water to be reserved to manage the
shortfall in conveyance water. The formula to determine the shortfall
in conveyance water is described in subsection 86D(2).
73. The Basin Plan must specify arrangements for carrying water over
in storage from year to year and can also provide for any other
matters to give effect to water sharing arrangements in the River
Murray System and in its major tributaries in order to provide
conveyance water (paragraphs 86D(1)(d) and (e)).
74. Subsection 86D(3) clarifies that arrangements for carrying water
over must recognise South Australia's right to store its entitlement
to water under the Agreement (see clauses 91 and 130) and the
responsibility of each of New South Wales, Victoria and South
Australia to meet its own critical human water needs and decide how
its share of water is used.
86E Additional matters relating to Tier 3 water sharing arrangements
75. Under this section, the Basin Plan must specify the conditions
that would require Tier 3 water sharing arrangements to apply. The
conditions must be due to the circumstances set out in section 86E(2).
The Basin Plan must also specify the conditions under which Tier 3
sharing arrangements would cease and Tier 2 sharing arrangements would
resume.
86F Emergency responses to the reaching of trigger points
76. This section sets outs an emergency response process should
water quality or salinity trigger points determined by the Basin Plan
be reached. Where a trigger point is reached, this section requires
the Authority to develop and implement actions to ensure water
available for critical human needs is returned to a state suitable for
human use.
77. Where the Authority's proposed response affects State water
sharing arrangements or Border Rivers water sharing arrangements, the
Authority will only be permitted to implement actions to return
critical human needs water to a state suitable for use if the Murray-
Darling Basin Ministerial Council agrees to such actions. The
Authority is to consult with the Basin Officials Committee in
formulating any response.
78. Subsection 86F(3) defines the term 'Border Rivers water sharing
arrangements'.
86G Effect of this Part on Authority and other agencies of the
Commonwealth
79. This section sets out the legal obligation of the Authority and
other Commonwealth agencies to perform functions and exercise powers
consistently with, and to give effect to, matters in the Basin Plan
relating to critical human water needs (subsection 86G(1)).
80. Subsection 86G(2) limits the obligation imposed by subsection
86G(1) so that it does not apply to the performance of functions and
exercise of powers that affect State water sharing arrangements
unless:
. the Ministerial Council agrees (paragraph 86G(2)(a)); or
. they are performed or exercised during a time when the Basin Plan
provisions for critical human water needs are taken to be a
Schedule to the Agreement (paragraph 86G(2)(b)).
81. The Agreement (clause 135) requires a Schedule to be prepared to
give operational effect to Tier 2 water sharing arrangements for
critical human water needs in the Basin Plan. Until this Schedule has
been made, the provisions relating to critical human needs in the
Basin Plan are taken to be this Schedule.
82. State water sharing arrangements are set out in the Agreement
and can only be changed by unanimous decision of Ministerial Council.
83. Subsection 86G(4) clarifies that subsection 86G(1) does not
apply to the Authority's functions under Part 2A, in developing the
Basin Plan. This is because it would not be logical for the Authority
to be bound by act consistently with and give effect to an existing
Basin Plan when preparing amendments to that Basin Plan.
86H Effect of this Part on other agencies and persons
84. This section provides, in relation to Basin water resources, that:
. the Basin Officials Committee and the agencies of Basin States that
are referring States or the Australian Capital Territory; and
. operating authorities, infrastructure operators and holder of water
access rights;
must not act in a manner that is inconsistent with those matters in
the Basin Plan relating to critical human water needs (subsections
86H(1) and (3)).
85. Subsection 86G(2) provides that the obligations of the Basin
Officials Committee, and agencies of Basin States that are referring
States or the Australian Capital Territory not to act inconsistently
with the critical human water needs matters in the Basin Plan applies
only to an act that relates to the use or management of Basin water
resources. This provision is intended to ensure that, when being
consulted on the draft Basin Plan, or draft amendments to the Basin
Plan, insofar as the drafts relate to the matters set out in Part 2A,
the Basin Officials Committee may make comments that are inconsistent
with what is currently set out in the Basin Plan.
86. Subsection 86H(4) limits the obligation imposed by subsections
86H(1) and (3) so that it does not apply to actions that would affect
State water sharing arrangements unless:
. the Ministerial Council agrees (paragraph 86H(4)(a)); or
. the actions are taken at a time when the Basin Plan provisions for
critical human water needs are taken to be a Schedule to the
Agreement (paragraph 86H(4)(b)).
87. This is a similar arrangement to that provided for in section
86G above and reflects the protection accorded to State water sharing
arrangements under the Reform IGA.
86J Additional powers of the Authority
88. This section ensures that the Authority has the necessary power
to perform its functions and duties and exercise the powers conferred
on it under this Part. For example subsection 86J(1) ensures that the
Authority's powers to acquire, hold and dispose of real and personal
property, to contract and to lease land provided for in section 173 of
the Act can be used to fulfil its functions and duties under Part 2A.
89. The Authority may appoint authorised officers, enter land for
the purpose of performing functions, monitoring compliance with Part
2A or searching for evidence of a breach of the provisions of Part 2A
(Subdivisions A, B and C of Division 2 of Part 10) and gather
information for the purposes of Part 2A (Division 3 of Part 10)
(subsection s 86J(2) and (3)).
90. Importantly, an authorised officer's powers to enter land and
gather information in order to perform its functions and duties under
Part 2A are subject to the same restrictions as the Authority's
general powers to enter land and gather information for the
performance of its other functions (subsection 86J (4)). These
restrictions include, for example, a requirement that any entry into
land is reasonably necessary for the performance of the Authority's
functions under Part 2A. Similarly, an authorised officer's powers to
enter land to monitor compliance under Subdivision C are limited to
circumstances in which it is reasonably necessary to monitor
compliance with the provisions of, or regulations made under, Part 2A.
Item 4 - After Part 3
Part 4 - Basin water charges and water market rules
91. This item re-enacts Part 4 of the Act (with some amendments
detailed below) with the support of references from Basin State
Parliaments. In summary, Part 4 provides the ACCC with the role of
developing and enforcing water charge and water market rules along the
lines of policy and reform commitments agreed in the National Water
Initiative. The Minister makes the water charge and water market rules
after considering the advice of the ACCC.
92. The purpose of these provisions is to ensure that water markets
are able to operate freely throughout the Basin and that perverse
outcomes from inconsistent water charging arrangements are avoided.
93. This re-enactment gives effect to the agreement of the Basin
States and the Commonwealth under the Reform IGA in relation to
creating a uniform approach to regulation of water markets and water
charges in the Basin. It does this by:
. expanding the application of the water charge rules to all entities
in referring Basin States that charge regulated water charges,
i.e., so that they are no longer limited in their application to
entities falling within Commonwealth constitutional power (see
section 94 of the Act as originally enacted);
. expanding the application of the water market rules to all
irrigation infrastructure operators, i.e., so that they are no
longer limited in their application to entities falling within
Commonwealth constitutional power (see section 99 of the Act as
originally enacted); and
. allowing the rules to provide that the ACCC may determine or
approve, or may accredit arrangements under which State agencies
determine or approve, any regulated water charges.
94. Proposed sections 255A and 255B in Item 161 of Schedule 2
provide for the application of the water charge and water market rules
in Basin States that are not referring States. In these
circumstances, the rules will operate as they do under the current
Act, based only on Commonwealth constitutional power.
95. A number of other minor technical and administrative amendments
to clarify the operation of Part 4 have also been made.
96. A further outcome of the Reform IGA was an agreement by the
Commonwealth to allow States to extend the operation of the water
charge rules and/or water market rules to areas of the State outside
the Basin on an 'opt in' basis. The provisions to give effect to this
Agreement are in Part 4A of the Bill (see item 5 below.)
Division 1 - Water charge rules
91 Regulated water charges
97. Paragraph 91(2)(c) is amended to provide that Division 1 applies to
regulated water charges to the extent to which the charge relates to
'water service infrastructure that carries water that has been taken
from a Basin water resource'. This amendment is to clarify that
Division 1 is to apply to water service infrastructure carrying water
that remains a Basin water resource (e.g., a channel into which the
water of a watercourse has been diverted) and also infrastructure
carrying water that used to be a Basin water resource (e.g., a pipe
transporting water that has been pumped out of a watercourse).
98. Existing paragraph 91(2)(c), which provides that Division 1 applies to
regulated water charges to the extent to which the charge relates to
'water access rights, irrigation rights or water delivery rights in
relation to Basin water resources' has been renumbered as paragraph
91(2)(d).
92 Water charge rules
99. Subsection 92(1) is amended to clarify that the water charge
rules made under this section apply to the referring Basin States and
Australian Capital Territory.
100. Paragraph 92(3)(c) is amended to expand the extent to which the
rules can provide for the ACCC to determine water charges. Previously,
the rules could not permit the ACCC to make determinations or approve
certain charges levied by irrigation infrastructure operators or water
planning and water management charges levied by entities other than
the Authority. As amended, paragraph 92(3)(c) will permit the rules to
enable the ACCC to determine or approve all regulated water charges.
101. Likewise, paragraph 92(3)(e) is amended so that the rules may provide
for the ACCC to accredit arrangements under which a State agency may
determine or approve any type of regulated water charge. Prior to
amendment, similar limitations to those described above in respect of
paragraph 92(3)(c) applied.
102. A minor amendment is made to paragraph 92(3)(l) to clarify that the
reference to the MDB Agreement in that paragraph is a reference to the
former MDB Agreement as defined in subsection 4(1).
103. Finally, subsection 92(7) which provided for the ACCC to determine or
approve water planning and management charges imposed by the Authority
has been removed because, as a result of the expansion of the ACCC's
determination role, this function is now covered by paragraph
92(3)(c).
93 Process for making water charge rules
104. Amendments are made to subsections 93(1) and (4) to clarify that the
Minister is required to seek, and have regard to the advice of the
ACCC on any proposed amendments or revocations of the water charge
rules.
105. Subsections 93(2) and (3) are amended to clarify that the ACCC is to
provide advice on proposed amendments or revocations. Subsection 93(5)
is amended to clarify that the regulations are to set out the process
the Minister is to follow in amending or revoking the water charge
rules. Subsection 93(6) is amended to increase clarity. The
requirement on the Minister to table reasons for departing from ACCC
advice in s 93(7) is also clarified to include departing from ACCC
advice on amending or revoking water charge rules.
106. Current section 94 is not replicated in Part 4. However, proposed
section 255A provides for the application of the water charge rules in
Basin States that are not referring States in substantially the same
terms as section 94 did (Item 161 of Schedule 2). Current sections 95
and 96 are re-numbered to sections 94 and 95 respectively. There is a
minor amendment to Section 94 to clarify the ACCC's monitoring role.
96 Transitional provisions relating to water charge rules
107. New section 96 is inserted so that actions and regulations under the
provisions of this Division under the Act are taken to have been done
or made under the new provisions. This includes the Minister's request
to the ACCC for advice about water charge rules (see subsection 93(1))
and regulations made about the process for making water charge rules,
including in relation to consultation requirements (see subsections
93(5) and (6)).
Division 2 - Water market rules
97 Water market rules
108. Subsection 97 is amended to clarify that the water market rules made
under this section apply to the referring Basin States and Australian
Capital Territory.
109. Paragraph 97(1)(a) is amended to refer to a part of a person's
entitlement to water. This is to clarify that the rules may apply both
to a trade or transfer for the whole of a person's entitlement to
water under an irrigation right and a part only of that entitlement.
110. Consequential amendments are made to paragraph 97(3)(b) and
subparagraphs 97(4)(a)(ii) and 97(5)(a)(i) and (ii).
111. New subsection 97(11) clarifies that, although the definition of
'water access entitlement' relates to the water resources of water
resource plan areas (which are specified in the Basin Plan), the water
market rules can apply to entitlements to Basin water resources, even
before the Basin Plan first takes effect.
98 Process for making water market rules
112. Amendments are made to subsections 98(1) and (3) to clarify that the
Minister is required to seek, and have regard to, the advice of the
ACCC on any proposed amendments or revocations of the water market
rules.
113. Subsections 98(2) is amended to clarify that the ACCC is to provide
advice on proposed amendments or revocations. Subsection 98(4) is
amended to clarify that the regulations are to set out the process the
Minister is to follow in amending or revoking the water charge rules.
Subsection 98(5) is amended to increase clarity. The requirement on
the Minister to table reasons for departing from ACCC advice in s
93(6) is also clarified to include departing from ACCC advice on
amending or revoking water charge rules.
114. Current section 99 is not replicated in Part 4. However, proposed
section 255B (Item161 of Schedule 2) provides for the application of
the water market rules in Basin States that are not referring States
in substantially the same terms as section 99 did..
99 ACCC to monitor transformation arrangements and compliance
115. A minor amendment is made to Section 99 (which was section 100 in the
Act as originally enacted) to clarify the ACCC's monitoring role.
100 Transitional provisions relating to water market rules
116. New section 100 is inserted so that actions and regulations under the
provisions of this Division under the Act are taken to have been done
or made under the new provisions. This includes the Minister's request
to the ACCC for advice about water charge rules (see subsection 98(1))
and regulations made about the process for making water charge rules,
including in relation to consultation requirements (see subsections
98(5) and (6)).Act
Division 3 - Miscellaneous
100A Functions and powers of the ACCC
117. This item inserts a new section, which ensures that the ACCC has the
enforcement powers provided for in Part 8 of the Act and under section
155 of the Trade Practices Act 1974 for the performance of its
functions under this Part, as these are necessary for it to
effectively perform its monitoring and enforcement functions.
Item 5 - Before Part 5
Part 4A - Extended operation of Basin water charge and water market rules
118. This item inserts new Part 4A before Part 5. Part 4A gives effect to
the Reform IGA by allowing Basin States to extend the geographical
application of the ACCC's regulatory role in relation water charges
and/or water markets as provided for under Part 4 to areas outside of
the Basin.
119. The intent of Part 4A is to allow States to choose to achieve a
uniform approach to regulation across their jurisdictions. The ability
to 'opt in' also applies to jurisdictions outside of the Basin,
including Western Australia and Tasmania should they choose to refer
their powers, and the Northern Territory. This Part does not apply to
the Australian Capital Territory because it falls entirely within the
Basin and it is, under Part 4 subject to the water charge and water
market rules.
120. Although the intention of this Part is to provide for the uniform
application of water charge and water market rules across a State, a
State may choose to opt-in for only part of the State outside the
Murray-Darling Basin, if it considers that there are good reasons not
to apply the water charge and/or water market rules to a specific area
of the State.
100B Extended operation of the Basin water charge rules
121. Subsections 100B(1) and (2) set out the mechanism for a State or the
Northern Territory to opt-in to extend the operation of Basin water
charge rules to all or part of the State or Territory outside of the
Murray-Darling Basin. In order for the geographical extension to
occur, the relevant State or Territory must make a law stating that
section 100B applies to the State or Territory, or part of State or
Territory and a Commonwealth regulation must also be made under
paragraph 100B(1)(b) providing the same thing.
122. The extended operation of the water charge rules can be limited by
regulation (section 100B(3)(a)).
123. As under Part 4, water charge and water market rules applied under
Part 4A do not apply in relation to urban water supply activities
beyond the point at which the water has been removed from a water
resource in the relevant jurisdiction.
124. The operation of Part 4A does not affect the operation of Part 4 in
relation to water charging, for Basin water resources (subsection
100B(5).
100C Extended operation of the Basin water market rules
125. Likewise, subsections 100C(1) and (2) sets out the mechanism for a
State or the Northern Territory to opt-in to extend the operation of
Basin water market rules to or entitlements to water held in respect
of all or part of the area of that State or Territory outside of the
Murray-Darling Basin. In order for the geographical extension to
occur, the relevant State or Territory must make a law stating that
section 100C applies to the State and a Commonwealth regulation must
also be made under paragraph 100C(1)(b) providing the same thing.
126. The extended operation of the water market rules can be limited by
regulation (section 100C(3)).
127. The operation of Part 4A does not affect the operation of Part 4 in
relation to water markets, for Basin water resources (subsection
100C(6)).
100D Functions and powers of the ACCC
128. This section ensures that the ACCC has the enforcement powers provided
for in Part 8 of the Act and under section 155 of the Trade Practices
Act 1974 for the performance of its functions under this Part, as
these are necessary for it to effectively perform its monitoring and
enforcement functions.
Item 5 - After Part 10
Part 10A - Transitional matters relating to the Murray-Darling Basin
Commission
129. This item inserts part 10A after Part 10. This new Part has 5
Divisions and gives effect to outcomes of the Reform IGA, relating to
the transition of the functions, duties and powers of Murray-Darling
Basin Commission (the Commission) to the new Murray-Darling Basin
Authority (the Authority).
Division 1 - Preliminary
130. Section 239A sets out definitions of particular relevance to these
transitional provisions, being the definitions of former MDB
Agreement, former Murray-Darling Basin Ministerial Council and Murray-
Darling Basin Commission.
131. Section 239B provides that Part 10A only applies if each of the Basin
States is a referring State. This is because Part 10A cannot
practically operate if all Basin States do not agree to the same
arrangements for the transfer of the existing functions, assets,
liabilities, etc of the Murray-Darling Basin Commission to the
Authority.
Division 2 - Assets, liabilities and legal proceedings
132. Section 239C provides that the transitional assets of the Commission
become assets of the Authority and that the Authority will assume
legal responsibility for these assets. Transitional assets are defined
in subsection 239C(3).
133. Part 10A, in particular section 239C, does not affect the ownership or
control of River Murray Operation Assets or the application of the
revised Agreement to these assets (section 239D). River Murray
Operation Assets are defined in subsection 239D(2) and include all
assets managed by the Commission under the former Murray-Darling Basin
Agreement. These will now be managed by the Authority under the
revised Agreement.
134. Further, Part 10A, in particular section 239C does not affect the
ownership and control of Living Murray Initiative assets, except to
the extent that the Commission holds legal title to such assets, in
which case the legal title passes to the Authority (section 239E).
Living Murray Initiative Assets are defined in subsection 239E(2).
135. Section 239F provides that the transitional liabilities of the
Commission become liabilities of the Authority and the Authority
assumes legal responsibility for these liabilities. Transitional
liabilities are defined in subsection 239F(3). 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 transitional assets.
136. Section 239G provides a process for registering any real property
assets that vest in the Authority, via a certificate signed by the
Minister and lodged with the Registrar of Titles in the relevant State
or Territory.
137. A certificate signed by the Minister under this section is not a
legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003. A provision to this effect is
included in s 239E(3) to assist readers.
138. Section 239H provides a process for registering any assets other than
real property that vest in the Authority, via a certificate signed by
the Minister and lodged with the relevant person or authority in the
Commonwealth, a State or Territory.
139. A certificate signed by the Minister under this section is not a
legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003. A provision to this effect is
included in s 239E(3) to assist readers.
140. Section 239J provides that where the Commission or a person who was a
Commission President or Commissioner was a party to any legal or
administrative proceedings prior to the transition, the Authority will
become the party to those proceedings. The terms 'President' and a
'Commissioner' are defined in subsections 239J(2) and (3). The term
President also encompasses a Deputy President. The note to section
239J records that the Agreement provides for Basin States to indemnify
the Authority for a share of any costs of these proceedings.
141. Section 239K provides that any right to sue a person who was a
Commission President, Deputy President or Commissioner that existed
but was not exercised prior to transition becomes a right to sue the
Authority. A note to this section records that the Agreement provides
for Basin States to indemnify the Authority for a share of any costs
associated with a person's exercise of these rights.
142. Likewise, where the President, Deputy President or a Commissioner had
a right to sue but had not exercised that right prior to transition,
this becomes a right of the Authority (section 239L).
143. All records and documents of the Commission will be transferred to the
Authority. Any duty of confidence owed to a person by the Commission
in relation to these records also transfers to the Authority (section
239M).
Division 3 - Effect on instruments and things done
144. Section 239N provides that transitional instruments relevant to the
Murray-Darling Basin Commission will continue to have effect with a
reference to the Commission treated as a reference to the Authority, a
reference to the former Murray-Darling Basin Ministerial Council as a
reference to the Murray-Darling Basin Ministerial Council and a
reference to the contracting governments under the former MDB
Agreement as a reference to the contracting governments under the new
Agreement (subsection 239N(1)). Transitional instruments are defined
in subsection 239N(4). Subsection 239N(2) and (3) provide a capacity
to make regulations to alter the general effect of section 239N(1),
where a direct mapping of references from the former bodies to the new
bodies would not be appropriate because of the modification of their
functions resulting from the amendments made in the new Agreement.
145. Section 239P provides for things that were done by, or in relation to
the Commission or its committees under a provision of a Commonwealth
Act or instrument (other than the MDB Act). Section 239P provides that
these things will continue to have effect as if they were done by the
Authority or the corresponding committee of the Authority. Subsections
239P(2) and (4) provide for the making of regulations to alter the
general effect of section 239P when a direct mapping of things done
from the Commission to the Authority is not appropriate because of the
modification of the Authority's functions resulting from the
amendments made in the new Agreement.
146. Section 239Q provides that things done under a provision of the former
MDB Agreement by or in relation to, or pursuant to a resolution of, a
body or person, and for which regulations specify a corresponding
provision in the Agreement, or a corresponding body or person, will
have effect as if done under a corresponding provision of the
Agreement, or in relation to a resolution of the corresponding body or
person. If no regulations are made to provide otherwise, a thing done
by, in relation to, or pursuant to a resolution of the Commission
under a provision of the former MDB Agreement has effect as if it had
been done under a corresponding provision of the Agreement by, in
relation to or pursuant to a resolution of the Authority, provided
there is a corresponding provision.
147. Section 239R provides for the continuation in existence of all
committees of the Commission in existence at the commencement of Part
10A, as committees of the Authority.
148. Section 239S provides that the Commission's corporate plan as in force
immediately before the commencement of Part 10A is taken to be the
Authority's corporate plan for its Agreement functions, but does not
replace any corporate plan that might have been made by the Authority
in relation to its non-Agreement functions. Subsection 239S(2)
requires the Authority to review the transitioned corporate plan as
soon as practicable after the commencement of Part 10A, and prepare a
draft amendment if it considers it necessary or desirable to do so.
Division 4 - Financial matters
149. Subection 239T(1) provides that all monies held or controlled by the
Commission are 'transitional amounts' and must be credited to the
Murray-Darling Basin Special Account. Subsection 239T(2) refers to
arrangements where a State has made a payment to the Commission to
perform certain functions. For the purposes of spending the relevant
amount, the Authority will assume these functions and can only expend
the transitional amount consistent those arrangements.
Division 5 - Miscellaneous
150. Section 239U defines certain matters, such as the vesting of assets,
as 'exempt matters'. Exempt matters and matters connected with exempt
matters are exempt from stamp duty and other State taxes. The Minister
may certify that a particular matter (or a class of matters) is an
exempt matter (or class) or that a thing (or a class of things) is
connected with an exempt matter (or matters) (subsections 239U(2) and
(3)). In all courts and for all other purposes, such a certificate is
prima facie evidence of a matter being exempt or a thing being
connected with an exempt matter (subsection 239U(5)).
151. A certificate by the Minister under subsection 239U(2) is not a
legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003 (subsection 239U(4)). A provision to
this effect is included in s 239U(4) to assist readers. However, a
certificate under subsection 239U(3) is a legislative instrument.
152. Section 239V describes what is taken to be an authentic certificate
made under this Part.
153. Section 239W allows for the regulations to address other matters
relating to the replacement of the Commission, former MDB Agreement
and former Murray-Darling Basin Ministerial Council, including the
status of two weirs (Maude and Redbank) which were formerly managed by
the Commission (the parties to the former MDB Agreement have agreed
that these be managed solely by NSW).
Item 6 - After Part 11
Part 11A - Interactions with State laws
154. This item re-enacts sections 15 to 18 of the Act (as originally
enacted) as sections 250B to 250E, partially in reliance on the
referral of powers from the referring States.
155. Section 250A defines the term 'Commonwealth water legislation' to mean
the Act, and any regulations or other instrument made under it.
156. Section 250B provides that, in all circumstances where the
Commonwealth water legislation and a State law can operate
concurrently, they are intended to do so. This means, for example,
that if a State sets more stringent targets than those that are set
under the Commonwealth water legislation, the State targets would not
be inconsistent with the Commonwealth law and would continue to
operate.
157. The effect of sections 250C and 250D are that a referring State can
displace the operation of the Commonwealth water legislation, in two
circumstances:
. in relation to certain matters declared by State law to be excluded
matters (section 250C); and
. in relation to certain provisions of State laws which would
otherwise be inconsistent with the Act (section 250D).
158. In addition, section 250E will provide for a mechanism whereby
Commonwealth regulations made under the Act may modify the operation
of the Commonwealth water legislation, so that the Commonwealth water
legislation, does not apply to a matter that is dealt with by a
specified law of a referring Basin State or to avoid inconsistency
between a provision of the Commonwealth water legislation and a
specified provision of a referring Basin State law. A referring Basin
State may request the Commonwealth to make such regulations.
159. In the Referral IGA to be signed by all Basin States, the referring
Basin States undertook to avail themselves of the displacement
mechanism only in relation to unintended inconsistencies between the
Commonwealth water legislation and legislation of a referring Basin
State and where the legislation of the referring Basin State is not
inconsistent with the objects of the Act.
160. If the referring Basin States were to avail themselves of this
mechanism in other circumstances, the Commonwealth retains a power to
override the State displacement provisions (subsections 250C(3) and
250D(6)).
Item 7 - Before Schedule 2
161. This item insert a new Schedule 1 - The Murray-Darling Basin
Agreement.
162. This Schedule will set out the text of the new Murray-Darling Basin
Agreement, as defined in s 18A.
163. This item also inserts a new Schedule 1A - - The Murray-Darling Basin,
which contains a revised map. The map itself has not changed from the
previous Schedule 1 map, but the notations on the map describe the
dataset that provides the boundary of the Basin, in accordance with
the revised definition of 'Murray-Darling Basin'. The previous
Schedule 1 map is repealed by item 163 in Schedule 2.
SCHEDULE 2 - Other Amendments
Part 1 - Repeal
Murray-Darling Basin Act 1993
Item 1 The whole of the Act
164. Item 1 repeals the whole of the Murray-Darling Basin Act 1993. The
Murray-Darling Basin Act 1993 provides for the approval of amendments
to the former Murray-Darling Basin Agreement, for the appointment and
terms and conditions of Commissioners and Deputy Commissioners and
various miscellaneous provisions relevant to giving effect to the
Agreement. The original Murray-Darling Basin Agreement and amendments
to that Agreement were set out in a Schedule to the Murray-Darling
Basin Act 1993.
165. The revised Agreement is now to be attached as Schedule 1 to the Act.
The Agreement itself will now set out the procedures for its
amendment. Part 1A set out in Schedule 1 will confer on the Authority,
as a matter of Commonwealth law, the functions expressed to be
conferred on it under the revised Agreement.
Part 2 - Amendments
Legislative Instruments Act 2003
Item 2 Subsection 7(1) (table item 11)
166. This item repeals item 11 in the Table in section 7 of the Legislative
Instruments Act 2003. Section 7 lists instruments declared not to be
legislative instruments.
167. Item 11 in the Table sets out the Schedules to the former Murray-
Darling Basin Agreement, which are to be repealed by this Bill.
Trade Practices Act 1974
Items 3 and 4 Paragraphs 155(9A)(a), (b) and (c)
168. Items 3 and 4 make minor amendments to paragraph 155(9A)(a), (b) and
(c) of the Trade Practices Act 1974 to insert 'or 4A' after Part 4.
This will ensure that the ACCC will be able to obtain information in
respect of the effect of, and compliance with, the water charge and
water market rules as they apply if a State or the Northern Territory
'opts-in' under Part 4A, in the same manner as they can obtain
information with respect to the water charge and water market rules
under Part 4.
169. New Part 4A in this Bill (see Item 3 in Schedule 1 to the Bill) allows
the States and the Northern Territory to 'opt-in' such that the ACCC's
regulatory role for water markets and/or water charges extends to
areas outside of the Murray-Darling Basin,
Item 5 Paragraph 155AAA(21)
170. Section 155AAA of the Trade Practices Act 1974 sets out the
circumstances in which ACCC officials can disclose protected
information. In order to ensure that information obtained under
section 155 of the Trade Practices Act 1974 in relation to the
Authority's performance of its functions and powers under Parts 4 and
4A is treated in the same way as other information obtained in the
course of its other monitoring and enforcement functions, a reference
to information obtained for the purposes of Part 4 and 4A has been
included in the definition of 'protected information' in
section 155AAA(21).
Water Act 2007
Item 6 Division 1 of Part 1 (heading)
171. This item repeals the heading to Division 1, because Division 2 of
Part 1 has been moved into Part 11A in Schedule 1 and Part 1 is
therefore no longer divided into Divisions.
Items 7 to 37
Definitions - Subsection 4(1)
172. Items 7 to 37 insert a number of new definitions including signpost
definitions to a number of definitions set out in Schedule 1 to this
Bill, such as Agreement and Authority. This item also repeals some
redundant definitions and amends existing definitions to take into
account other amendments made to the Act, for instance by including
the new position of Chief Executive into the definition of Authority
Member.
Item 38 Section 5
173. Item 38 repeals section 5 which is now included in modified form in
section 18B. New section 5 provides that the text referred is to be
interpreted in accordance with the Acts Interpretation Act 1901 of the
Commonwealth as in force on the day on which Schedule 1 to the Water
Amendment Act 2008 commences. This is intended to preclude any
possible argument that the scope of the reference may change as a
result of amendments to the Acts Interpretation Act 1901.
Item 39 to 41 Subsection 9(1), 9(1) (notes 3 and 4) and subsection 9(2)
174. Items 39 to 41 amend section 9, which sets out the constitutional
basis for Act, so that it applies only to the constitutional basis of
the non-referred Parts of the Act. A new section 9A provides for the
constitutional basis of the referred Parts of the Act.
175. Item 40 repeals notes 3 and 4 to subsection 9(1) which are redundant
either as a result of the reduced scope of the amended section 9, or
because the sections referred to in the notes will be deleted.
Item 42 After section 9
176. This item inserts new section, 9A, setting out the constitutional
basis of Parts 1A, 2A, 4, 4A, 10A and 11A. In a referring State,
these Parts rely for their constitutional validity both on the powers
referred by the referring State to the Commonwealth and on other
Commonwealth constitutional powers under section 51 of the
Constitution. In non-referring Basin States, the provisions rely for
their validity on Commonwealth constitutional powers under section 51
alone. In the Territories, the provisions rely for their
constitutional validity on the Commonwealth's constitutional powers
under section 51 and section 122 (the Territories power).
177. It is to be noted that only Parts 4A and 11A are applicable to
referring States that are not Basin States and only Part 4A is
applicable to the Northern Territory. All of Parts 1A, 2A, 4, 4A, 10A
and 11A are applicable to referring Basin States, and all of these
Parts, other than Parts 4A and 11A, are applicable to the Australian
Capital Territory.
Item 43 After subparagraph 10(1)(a)(ii)
178. This is a consequential amendment that follows from the amendment to
paragraph 91(2)(c) described above in relation to Item 3. The item
inserts a new subparagraph 10(1)(a)(iia) to include water service
infrastructure that carries water that has been taken from a Basin
water resource so that the description of what water charges may
relate to is consistent across the Act.
Item 44 After section 12
179. This item inserts new section 12A which provides that Murray-Darling
Basin Ministerial Council must act in conformity with any requirements
under the revised Agreement in performing its functions under the Act.
By way of example, such requirements include voting procedures.
Item 45 Division 2 of Part 1
180. Item 45 repeals Division 2 of Part 1. The substance of this Division
is now provided for in Part 11A. Section 14, which formerly
constrained the operation of Division 2 of Part 1 such that it did not
cover Part 7 of the Act has not been carried across to Part 11A. It
has become obsolete in light of the wider operation of Part 11A,
relating to the entire Act.
Items 46 to 48 Subsection 21(2) (note), at the end of subsection 21(3)
(before the note), and subsection 21(3) (note)
181. Section 21 sets out the general basis on which the Basin Plan is to be
developed.
182. Item 46 inserts an additional note under subsection 21(2) which notes
that Part 2A (set out in Schedule 1 to this Bill) includes an
additional matter with respect to which the regard must be had in
preparing the Basin Plan. This is the matter of critical human water
needs covered by Note 2. Note 1 in item 46 is already included in the
Act.
183. Item 47 includes an additional element requiring the Basin Plan to
take account of the ecological character descriptions of all declared
Ramsar Sites and other key environmental assets within the Murray-
Darling Basin prepared in accordance with the National Framework and
Guidance for Describing the Ecological Character of Wetlands endorsed
by the Natural Resource Management Ministerial Council. These
descriptions can be used to assist water management planning and
monitoring activities. The framework can also be used to describe
important wetlands that are not Ramsar wetlands.
184. Item 48 inserts a new note that provides that a copy of the National
Framework and Guidance document can be found on the Department's
website. Note 1 in item 49 is already included in the Act.
Item 49 At the end of paragraph 21(4)(c)
185. Item 49 inserts an additional subparagraph 21(4)(c)(x), requiring the
Authority and the Minister to have regard to 'any other arrangements
between States for the sharing of water' during development of the
Basin Plan. This insertion is required because the definition of the
term State water sharing arrangements now in section 86D(4) of
Schedule 1 has been modified from the definition originally included
in the Act such that it is no longer capable of covering these other
State water sharing arrangements (the definition previously included a
regulation making power which allowed the inclusion of water sharing
arrangements in addition to those applicable in the River Murray
System). This possibility has been removed because the term is now
used in an Agreement-specific context.
186. Other arrangements between States for the sharing of water include the
Border Rivers water sharing arrangements between Queensland and New
South Wales (see also the definition of Border Rivers water sharing
arrangements in section 86F(3) of Schedule 1), and ground water
sharing arrangements between South Australia and Victoria.
Item 50 Subsection 21(5)
187. In the current Act, certain sections refer to when the Basin Plan
'takes effect' and others to when the Basin Plan 'first takes effect'.
These sections are intended to express the same concept so the
language as been made consistent by including the word 'first' in all
sections where it is currently not present.
Item 51 At the end of Subsection 22(1)
188. Subsection 22(1) lists the mandatory content of the Basin Plan. Item
51 inserts a note under subsection 21(2) which notes that Part 2A (set
out in Schedule 1) includes an additional mandatory content item. This
item covers matters relating to critical human water needs.
Item 52 Paragraph 26(1)(j)
189. This item repeals the paragraph and substitutes a new paragraph in the
same terms, except that it now refers to the former Murray-Darling
Basin Agreement.
Item 53 After subsection 34(1)
190. Section 34 sets out the legal effect of the Basin Plan on the
Authority and other agencies of the Commonwealth. This item inserts a
new subsection and note providing that section 34 does not impose
legal obligations in relation to matters in the Basin Plan relating to
critical human water needs. The obligations of the Authority and other
agencies of the Commonwealth in relation to such matters are provided
for in section 86G.
Items 54 and 55 Subsection 35(1) and after subsection 35(1)
191. Section 35 sets out the legal effect of the Basin Plan on non-
Commonwealth agencies and other persons and bodies. Item 54 omits the
reference to the Murray-Darling Basin Commission in subsection 35(1)
as the Commission will cease to exist, and replaces it with a
reference to the Basin Officials Committee.
192. Item 55 inserts a new subsection and note providing that section 35
does not impose legal obligations in relation to matters in the Basin
Plan relating to critical human water needs. The obligations of
persons covered by section 35 in relation to such matters is provided
for in section 86H.
Items 56 and 57 Subsection 36(5), subsection 36(6)
193. Item 56 repeals subsection 36(5) because section 35 does not rely on a
referral from the States for its operation. Item 57 makes a
consequential amendment to subsection 36(6) to remove reference to
subsection 36(5), which is being repealed.
Items 58 and 59 Subsection 37(6) and subsection 37(7)
194. Item 58 repeals subsection 37(6) because section 35 does not rely on a
referral from the States for its operation. Item 59 makes a
consequential amendment to subsection 37(7) to remove reference to
subsection 37(6), which is being repealed.
Item 60 After section 43
195. This item inserts a new section 43A after section 43, to give effect
to one of the outcome of the Reform IGA which gives the Murray-Darling
Basin Ministerial Council an advisory role on the Basin Plan. It
provides for the Authority to seek comments from the Murray-Darling
Ministerial Council on the proposed Basin Plan.
196. Once the Authority has carried out the required public consultations
and made any alterations to a proposed Basin Plan under section 43, a
copy of the plan must be provided to each member of the Ministerial
Council. The Authority must also advise Council on the socio-economic
implications of any reductions in the sustainable diversion limits in
the proposed Plan (subsections 43A(2) and 43A(3)).
197. The Ministerial Council then has 6 weeks to provide comments in
writing to the Authority on the proposed Basin Plan including any
disagreement with the long-term sustainable diversion limits or any
other aspect of the proposed Basin Plan that is not of a factual or
scientific nature (subsection 43A(4), see also subsection 48(5)).
198. If the Council does not provide comments within that period, this is
taken to mean the Council has no comments (subsection 43A(5)).
199. Where the Ministerial Council provides written comments stating that
the Council or one or more of is members disagrees with any of the
relevant aspects of the proposed Basin Plan, subsection 43A(6) sets
out the process the Authority must follow. This includes consideration
of the issues raised by the Council or its members, further
consultations as necessary and documentation of the consultations and
the Authority's conclusions. The Authority must either confirm or
alter the proposed Plan, and provide a copy to the Ministerial Council
along with its views on the matters raised by the Ministerial Council.
200. The Ministerial Council then has 3 weeks to provide written notice to
the Minister about its views on the proposed Plan, including the long
term sustainable diversion limits or any other aspect of the proposed
Basin Plan that is not of a factual or scientific nature (subsection
43A(7), see also subsection 48(5)). The Ministerial Council or its
members may indicate to the Minister that they are satisfied with the
proposed Basin Plan or that they still have outstanding comments.
201. If the Council does not provide written notice to the Minister within
that period, this is taken to mean the Council has no further views
(subsection 43A(8)).
Items 61 and 62 Subsection 44(1) and subsection 44(3)
202. These items omit '60 days' and '30 days', respectively, and substitute
'12 weeks' and '6 weeks', respectively, as the period within which
the Minister make a decision in respect of the proposed Basin Plan in
the manner prescribed after it has been given to the Minister by the
Authority. This amendment is made for consistency so that all time
frames in the process for preparing and making the Basin Plan are
expressed in weeks rather than days.
Item 63 After subsection 44(5)
203. This item inserts new subsection 44(5A) to clarify that should the
Ministerial Council have no comments or views on the proposed Basin
Plan, this does not affect the Minister's power to give suggestions or
directions to the Authority the proposed the Basin Plan under this
section.
Item 64 After section 47
204. This item inserts a new section 47A after section 47 providing for the
timeframe and process for the Authority to seek comments from the
Murray-Darling Basin Ministerial Council on a proposed amendment of
the Basin Plan. Similarly to section 43A this item gives effect to one
of the outcomes of the Reform IGA which gives the Murray-Darling Basin
Ministerial Council an advisory role on the Basin Plan. The time
frames and processes are identical to the timeframes and processes for
consulting the Ministerial Council on the proposed Basin Plan, except
that for proposed amendments to the Basin Plan, the Authority is not
required to provide the Ministerial Council with separate advice on
the likely socio-economic implications of any reductions in the long-
term average sustainable diversion limit proposed in the amendment
(see section 43A).
Item 65 Subsection 48(1)
205. This item omits '60 days' and substitutes '12 weeks' as the period
within the Minister must make a decision in respect of a proposed
amendment of the Basin Plan in the manner prescribed after it has been
given to the Minister by the Authority. This amendment is made for
consistency so that all time frames in the process for preparing and
making the Basin Plan are expressed in weeks rather than days.
Item 66 After subsection 48(5)
206. This item inserts new subsection 48(5A) to clarify that should the
Ministerial Council have no comments or views on a proposed amendment
of the Basin Plan, this does not affect the Minister's power to give
suggestions or directions to the Authority on the proposed amendments
to Basin Plan under this section.
Item 67 Before section 50
207. This item inserts a new section 49A to give effect to the Reform IGA.
The Authority must advise the Murray-Darling Basin Ministerial Council
on the impacts of the Basin Plan as soon as possible after the fifth
anniversary of the Plan, and publish this information on its website.
Items 68, 69 and 70, Paragraph 50(1)(a), subsection 50(4) and paragraph
56(2)(a)
208. In the current Act, certain sections refer to when the Basin Plan
'takes effect' and others to when the Basin Plan 'first takes effect'.
These sections are intended to express the same concept so the
language has been made consistent by including the word 'first' in all
sections where it is currently not present.
Item 71 Subsection 59(1)
209. Section 59 imposes legal obligations in relation to water resource
plans on non-Commonwealth agencies and other persons and bodies. Item
71 omits the reference to the Murray-Darling Basin Commission in
subsection 59(1) as the Commission will cease to exist, and replaces
it with a reference to the Basin Officials Committee.
Items 72 and 73 Subsection 60(5) and subsection 60(6)
210. Item 74 repeals subsection 60(5) because section 59 does not rely on a
referral from the States for its operation. Item 75 makes a
consequential amendment to subsection 60(6) to remove reference to
subsection 60(5), which is being repealed.
Items 74 and 75 Subsection 61(6) and subsection 61(7)
211. Item 76 repeals subsection 61(6) because section 59 does not rely on a
referral from the States for its operation. Item 77 makes a
consequential amendment to subsection 61(7) to remove reference to
subsection 61(6), which is being repealed.
Items 76 to 83, 86, 87 and 90 Subsection 74(2) (note 1), after section 74,
after subsection 75(1), paragraph 75(2)(b), at the end of subsection 75(2),
after subsection 75(3), subsection 75(4), paragraph 75(4)(b), paragraphs
77(4)(a) and (b) and 79(2)(f), after subsection 81(3), paragraphs 83(6)(a)
and (b) and 85(2)(e)
212. These items give effect to the modifications to clauses 48 to 50
(Assigning risks for Changes in Allocation) of the National Water
Initiative, which were agreed to in Part 10 of the Reform IGA.
213. Clauses 48 to 50 of the National Water Initiative identify three types
of risk relating to future reductions in water allocation or
reliability for consumptive use: seasonal or long term changes in
climate and periodic natural events such as bushfires and drought;
bona fide improvements in the knowledge of water systems' capacity to
sustain particular extraction levels ('new knowledge'); and changes in
government policy (for example new environmental objectives).
214. Under the National Water Initiative, and the Act as originally
enacted, risks relating to future reductions in water allocations or
reliability for consumptive use were shared as follows:
. Until 2014, the risks were to be borne by users;
. After 2014, the risks were to be shared in accordance with the
table set out below
|Reduction |Water access |State share |Commonwealth |
|due to new |entitlement | |share |
|knowledge |holder share | | |
|over 10 year| | | |
|period | | | |
|0 to 3% |All of the |Nil |Nil |
| |reduction | | |
|3 to 6% |All of the |1/3 of any |2/3 of any |
| |reduction to 3% |reduction from 3|reduction from 3|
| | |to 6% |to 6% |
|More than 6%|All of the |1/3 of any |2/3 of any |
| |reduction to 3% |reduction from 3|reduction from 3|
| | |to 6%, plus 1/2 |to 6%, plus 1/2 |
| | |of any reduction|of any reduction|
| | |from 6% and |from 6% and |
| | |above |above |
215. In the Reform IGA, the Commonwealth agreed to take on a greater share
of the risks relating to future reductions in water allocations
(arising from a reduction of the long-term sustainable diversion
limit, but not from a change in water reliability resulting from other
aspects of the Basin Plan). The Commonwealth also agreed to take on
this risk at an earlier date in those Basin States which took on their
risk sharing obligations under clauses 48 to 50 of the National Water
Initiative, as modified by clause 10.1.3 of the Agreement on Murray-
Darling Basin Reform, and did so by enacting legislation to this
effect by 30 June 2009.
216. Item 77 inserts new section 74A which requires the Minister to make a
written determination about whether a State has applied the risk
management framework provided for in paragraphs 48 to 50 of the
National Water Initiative, as modified by clause 10.1.3 of the Reform
IGA, in its water management law by the 30 June 2009 and at all times
since, or by a later date specified in regulations (subsection
74A(1)). This later date must be before the Basin Plan first takes
effect (subsection 74A(2)). A capacity to extend the date has been
included to cover a situation where despite best endeavours a Basin
State is unable to pass the required legislation before 30 June 2009
(subsections 74A(1) and (2)).
217. The Minister's written determination can be revoked and the Minister
can seek the advice of the National Water Commission in relation to
the making or revoking of determinations (subsections 74A(3) and (4)).
218. A determination by the Minister under this section is not a
legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003. A provision to this effect is
included in subsection 74A(5) to assist readers.
219. A note to subsection 74A(1) refers to new Schedule 3A, which sets out
the text of the relevant risk assignment clauses of the National Water
Initiative and the Reform IGA.
220. The Government accepts that section 46 together with Division 9 of
Part 2 of New South Wales's Water Management Act 2000 complies with
the current National Water Initiative risk assignment framework, and
that it will only be a question of whether New South Wales has
adjusted its legislation to take into account clause 10.1.3 of the
Reform IGA in order for the Minister to be satisfied that New South
Wales has satisfied the requirements for the Commonwealth to take on
an additional share of the risk.
221. If New South Wales, or any other State, applies the agreed risk
assignment framework in its legislation before the Bill is passed by
the House of Representatives, the Government will move an amendment to
the Bill to include a provision that deems the Minister to have made
the determination referred to in section 74A in respect of New South
Wales, or such other State.
222. Where the Minister has not made a determination in relation to a Basin
State under section 74A, the risk allocation provision in the Act as
originally enacted will continue to apply in relation to that Basin
State. However, in respect of Basin States in relation to which a
determination under section 74A is deemed to have been, or has been,
made, items 76 and 79 to 83 insert amendments into Division 4 of Part
2 (Allocation of risk in relation to reductions in water availability)
which provide for the Commonwealth to take on the agreed additional
share of risk.
223. This agreed additional share of risk is as follows:
. The Commonwealth's share of the risk for any reductions in the long-
term average sustainable diversion limit exceeding 3%, in any 10
year period, as a result of 'new knowledge' of water systems will
be 100% (see table below) (Items 80 and 81, subsection 75(2) and
(3)).
. The Commonwealth will take on this share of the risk from the
expiry of current State water resource plans (transitional and
interim plans under the Act) (Item 83, paragraph 75(4)(b)).
|Reduction due |Water access |State share |Commonwealth |
|to new |entitlement | |share |
|knowledge over |holder share | | |
|10 year period | | | |
|0 to 3% |All of the |Nil |Nil |
| |reduction to 3%| | |
|More than 3% |All of the |Nil |100 % of any |
| |reduction to 3%| |reduction from |
| | | |3% and above |
224. Some other minor amendments have been made to Division 4 of Part 2 for
clarification. Thus items 78 and 87 insert new subsections 75(1A) and
81(3A) to clarify that reductions resulting from the new knowledge
category of risk do not overlap with reductions resulting from the
other two specified categories of risk (seasonal or long term changes
in climate and periodic natural events such as bushfires and drought
and changes in government policy) and are to be accounted for
separately.
225. Further items 86 and 90 amend paragraphs 77(4)(a) and (b) and 79(2)(f)
and paragraphs 83(6)(a) and (b) and 85(2)(e) to clarify that when the
term 'value' is used, what is being referred to is the market value of
a water access entitlement.
Items 84, 85, 88 and 89 Subparagraphs 77(1)(b)(iii) and (iv),
subparagraphs 83(1)(b)(iii) and (iv)
226. In the current Act, certain sections refer to when the Basin Plan
'takes effect' and others to when the Basin Plan 'first takes effect'.
These sections are intended to express the same concept so the
language has been made consistent by including the word 'first' in all
sections where it is currently not present.
Item 91 Part 4
227. This item repeals the whole of Part 4. Part 4 has been re-enacted in
is entirety and is explained at Item 3 in Schedule 1 to this Bill.
Item 92 At the end of section 105
228. This item inserts a new subsection 105(5) which clarifies that the
requirements for the Commonwealth Environmental Water Holder to manage
the Commonwealth environmental water holdings in accordance with the
environmental watering plan under the Basin Plan, when the
Commonwealth environmental water holdings relate to the Murray-Darling
Basin, does not prevent the Commonwealth environmental water holder
from returning water held under water rights or interests in the
Murray-Darling Basin to the Snowy River to give effect to the
agreement on increasing environmental flows to the Snowy between the
Commonwealth, New South Wales and Victoria.
Item 93 Subsection 108(3)
229. This item amends subsection 108(3) (by repealing the current
definition and replacing it). The effect is to include a new category
of water rights and interests that are excluded from the Commonwealth
environmental water holdings. This category covers water rights and
interests held by the Authority for the purpose of the Living Murray
Initiative.
Items 94 and 95 paragraph 123(2)(b) and subparagraph 123(2)(b)(ii)
230. These items amend section 123 to ensure that the Director of
Meteorology is not precluded from publishing information about water
use in a particular geographical region merely because there is only
one large corporate user in that region.
Item 96 Section 125 (definition of water information)
231. This item amends the definition of water information (by repealing the
current definition and replacing it) to ensure that the Bureau of
Meteorology is able to request metadata relating to the water
information provided. Metadata includes information about the accuracy
of the data, the source, copyright, collection details (including
method and parameters such as temperature and time) and calibration
and conversion details.
Item 97 Paragraph 137(b)
232. This item inserts references to Part 4A in paragraph 137(b)
(Appropriate enforcement agency for contraventions to which this Part
applies) to ensure that the Australian Competition and Consumer
Commission is able to rely on the enforcement provisions under Part 8
for the purposes of enforcing compliance with water charge and water
market rules applying by virtue of Part 4A.
Item 98 Paragraphs 172(1)(b) and (c) (note)
233. This repeals the note to paragraphs 172(1)(b) and (c) and substitutes
a new note to remove reference to the Murray-Darling Basin Commission,
which will cease to exist.
Item 99 After paragraph 172(1)(e)
234. This item inserts an additional paragraph under the Authority's
research and investigations functions to allow the Authority to
develop an integrated water model in consultation with the Basin
States. This modelling tool will enable, across the Murray-Darling
Basin, surface and groundwater hydrology and related ecological and
other features to be simulated and studied under different policy
options and climatic and other conditions. This will lead to the
improved management of the Basin's water resources.
Item 100 Paragraph 172(1)(g)
235. This item repeals paragraph 172(1)(g) and substitutes a new paragraph.
236. Currently, the Authority can only make a recommendation to a Basin
State or an agency about any matters, including measures carried out
by the Basin State or an agency, which the Authority considers could
affect water quality or quantity.
237. The new paragraph will allow the Authority to also make
recommendations to the Commonwealth or an agency of the Commonwealth
and to make recommendations about works that the Authority considers
could in any way affect the quality or quantity of Basin water
resources.
Item 101 At the end of subsection 172(1)
238. This item adds a note at the end of subsection 172(1) to record that,
in addition to the functions conferred on it by section 172, the
Authority also has the functions conferred on it by Part 1A, relating
to the revised Agreement, and by Part 2A, relating to arrangements for
critical human water needs.
Items 102 and 103 Paragraphs 172(2)(a) and (b)
239. These items remove reference to the Murray-Darling Basin Commission in
the description of the Authority's functions, given that the
Commission will no longer exist.
Item 104 Subsection 172(3)
240. Paragraph 172(1)(g), as amended by this Bill (see Item 100), confers
on the Authority the function of making recommendations to the
Commonwealth, a Basin State or Commonwealth or Basin State agencies
about any matter the Authority considers could affect the quality or
quantity of the Basin water resources.
241. This item amends subsection 172(3) so that the Authority is required
to inform all the members of the Ministerial Council, not just the
Commonwealth Minister, about any recommendations it makes under
paragraph 172(1)(g).
Item 105 Section 173
242. This item repeals Section 173 and replaces it with a new section 173
setting out the Authority's powers. Although the Authority remains an
Financial Management and Accountability Act 1997 body, it will be able
to acquire, hold and dispose of real and personal property and enter
into contracts in its own name, rather than having the Authority Chair
do these things on behalf of the Commonwealth, for the benefit of the
Authority (subsection 173(2)).
243. Notes to subsection 173(1) signpost where the Authority's functions
are set out, and where the other main powers of the Authority are
located.
244. Notes to subsection 173(2) draw the reader's attention to the
Authority's powers to sue and be sued in its own name (section
176(1)(c)) and reference the Commonwealth legislation regulating the
exercise of powers to acquire property and enter contracts - Lands
Acquisition Act 1989 and Financial Management and Accountability Act
1997.
245. Subsections 173(3) and (4) provide that any real property held, and
any money received by the Authority, is held and received on behalf of
the Commonwealth. This is integral to the Authority's nature as a body
that is governed by the Financial Management and Accountability Act
1997.
246. Notes to subsections 173(3) and (4) clarify that these subsections do
not have the effect of transferring property or money to the
Authority.
Item 106 At the end of subsection 174(1)
247. This item adds a note to subsection 174(1) to refer to clause 145 of
the revised Agreement, which allows the Commonwealth to recover from
the Basin States a proportion of any payment it has made for an act or
omission of the Authority in the execution in good faith of the powers
vested in the Authority.
Item 107 At the end of subsection 175(2)
248. This item adds some additional functions in subsection 175(2) in
respect of which the Authority is not subject to direction by the
Minister. These are the functions conferred on the Authority by or
under the revised Agreement through Part 1A of Schedule 1 of the Bill
and functions relating to critical human water needs in Part 2A. The
Ministerial Council has ultimate responsibility for the revised
Agreement. Subject to arrangements for critical human water needs
affecting State sharing arrangements (in which case the Ministerial
Council becomes involved), the Authority is not subject to direction
by the Minister in respect of its functions under Part 2A.
Item 108 Before paragraph 177(a)
249. This item gives effect to the outcomes of the Reform IGA about the
membership and appointments to the Authority, inserting paragraph
before paragraph (a) to include a Chief Executive so that the
Authority has both a Chair and a Chief Executive.
Item 109 Subsections 178(5) and (6)
250. This item amends the basis of appointments to the Authority to omit
'Authority Chair' and substitute 'Chief Executive'. This means the
Authority will have a full-time Chief Executive, a part-time Chair and
four other part-time members.
Item 110 At the end of section 178
251. This item adds a new subsection 178(8) to provide that an act of the
Authority is not invalid because of a defect or irregularity in the
appointment of Authority members.
Items 111 and 112 Section 179 and at the end of section 179 (before the
note)
252. Items 111 and 112 insert a new subsection into section 179. New
section 179(2) provides that the sum total of years that an Authority
member may hold office, made up of the first appointment period and
any period/s of re-appointment, must not exceed 8 years. This
provision does not include periods of acting appointment.
Items 113 and 114 Before subsection 180(1) and subsection 180(2)
253. Item 113 inserts a new subsection 180(1A) to allow the Minister to
appoint an acting Chief Executive, if there is a vacancy or for other
specified reasons.
254. Item 114 is amended such that subsection 180(2), which provides for
the appointment of acting authority members, does not apply to the
appointment of either an acting Authority Chair or an acting Chief
Executive.
Items 115 to 117 Subsections 184(1) and (2), sections 185 and 187
255. These items amend the sections providing for the Chair to keep the
Minister informed, prohibiting the outside employment of the Chair
without approval and providing for the leave of the Chair and the
granting of leave by the Chair. References to the Chair will be
replaced by references to the Chief Executive to reflect the fact that
the Chief Executive will now be the full time Agency Head.
Items 118 to 121 Paragraphs 189(2)(c), (d) and (e) and after paragraph
189(2)(e)
256. Section 189 provides for the circumstances in which the Minister may
terminate the appointment of Authority members. Items 118 to 120 omit
references to the Authority Chair in section 189 and substitute them
with reference to the Chief Executive. This reflects the fact that the
Chief Executive will now be the full time Agency Head rather than the
Authority Chair and thus it is the Chief Executive that should be
subject to termination in different circumstances to those applicable
to other Authority members.
257. Item 121 inserts a new paragraph 189(2)(ea) after paragraph 189(2)(e)
which provides for the possible termination of the appointment of an
Authority member if they engage in paid employment that conflicts or
could conflict with performance of their duties as an Authority member
and without the Minister's approval.
Items 122 to 127 Subdivision D of Division 3 of Part 9 (heading),
subsections 201(1) and (2) and paragraphs 201(2)(b), (c) and (d),
subsections 201(3) to (6)
258. These items reflect the fact that the Basin Officials Committee is now
established under the revised Agreement (the text of which is set out
in Schedule 1 of Schedule 1 to this Bill). Part IV of the revised
Agreement includes provisions relating to the membership, appointment
and procedures of the Committee (including requirements relating to
disclosure of interests). Subsections 201(1), (3), (4), (5) and (6)
are thus rendered obsolete and are deleted (items 123 and 127).
259. Further changes include:
. Item 122, which repeals the heading 'Subdivision D - Advisory
Committees' and replaces it with 'Subdivision D - Basin Officials
Committee', as other Advisory Committees are now to be provided for
in Subdivision E;
. Item 124, which repeals the heading to subsection 201(2), and
clarifies that the Basin Official Committee has the functions
listed in subsection 201(2) in addition to the functions which are
conferred on it under the revised Agreement; and
. Items 125 and 126, which repeal paragraphs 201(2)(c) and (d) and
make consequential tidying up amendments. These functions are
removed because they are functions that are to be conferred on the
Basin Officials Committee under the revised Agreement.
Item 128 After Section 201
260. This item inserts three new sections to set out the appointment
arrangements for the Chair and an acting Chair of the Basin Officials
Committee.
261. This item also inserts a new Subdivision heading 'Subdivision E -
Other Advisory Committees', which sits immediately above section 202
(Basin Community Committee).
262. Section 201A provides for appointment by the Minister of the Secretary
of the Department or a member of the Senior Executive Service as the
Chair of the Basin Officials Committee (subsections 201A(1) and (2)).
Section 17AA of the Acts Interpretation Act 1901 provides a definition
of an SES employee.
263. Subsection 201A(3) provides that the appointment of the Chair is not
invalid merely because of a defect or irregularity with the
appointment.
264. Section 201B provides for appointment of an acting Chair of the Basin
Officials Committee. An acting Chair must be the Secretary of the
Department or a member of the Senior Executive Service (subsections
201B(1) and (2)). An individual appointed as acting Chair can act as,
and perform the functions and exercise the power of the Chair during a
vacancy in the office of the Chair or certain other specified absences
(subsection 201B(4)).
265. An acting Chair's appointment is not tied to the appointment of a
particular person as Chair (subsection 201B(3)).
266. Section 201C provides that the period of appointment for the Chair is
as specified in the instrument of appointment.
Item 129 At the end of subsection 202(2)
267. This item inserts a note after subsection 202(2) to refer to the other
functions of the Basin Community Committee conferred on it by section
18F.
Item 130 Subsection 202(7) (at the end of the definition of water user)
268. This item adds an additional class of persons that fall within the
definition of water user, that is persons engaged in interceptions
activities with a significant impact on water resources (whether on an
activity by activity basis or cumulatively). Under paragraph
202(5)(b), the Basin Community Committee's membership must include at
least 8 individuals who are water users or representatives of one or
more water users.
Item 131 Subsection 204(1)
269. This item amends subsection 204(1) to clarify that the Authority
appoints members of advisory committees with the exception of the
Basin Officials Committee.
Item 132 Subsections 204(2)
270. This item repeals subsection 204(2), which is obsolete as the Basin
Officials Committee is no longer an advisory committee set up by the
Authority. Subsection 204(2) refers to subsections 201(4) and (5),
which are also being repealed (see Item 127).
Item 133 Subsection 204(3)
271. This item amends subsection 204(3) to provide that to be eligible for
appointment to the Basin Community Committee, an individual must also
be nominated by the Ministerial Council. This gives effect to the
Reform IGA.
Items 134 to 136 Subsection 205(1), after subsection 205(1) and subsection
205(2)
272. Item 134 amends subsection 205(1) to clarify that the Minister cannot
give procedural directions to the Basin Officials Committee. This is
because the Basin Officials Committee is no longer an advisory
committee set up by the Authority. Item 136 amends subsection 205(2)
to reflect this change.
273. Item 135 inserts a new sub section 205(1A) to clarify that the
Minister cannot give directions to the Basin Community Committee in
respect of its functions, powers and duties under the revised
Agreement (conferred under section 18F). The Basin Community Committee
is answerable to the Ministerial Council in respect of these
functions.
Items 137 to 140 Subsection 206(2), section 207 (note), section 208
274. These items omit the references to the Chair in sections 206, 207 and
208 and replace them with references to the Chief Executive, to
reflect the fact that the Chief Executive is now the Head of the
Authority under the Public Service Act 1999 and the Financial
Management and Accountability Act 1997.
Items 141 to 147 Paragraphs 210(b), (c) and (d), after paragraph 210(d),
paragraph 210(e), after paragraph 210(e), and at the end of section 210
(before the note).
275. These items amend section 210 to reflect the fact that the Authority
can now hold property and enter into contracts in its own name (see
section 173), rather than the Commonwealth undertaking this function
on behalf of the Authority.
276. These items also expand the categories of amounts that can be credited
to the Murray-Darling Basin Special Account to ensure that all types
of amounts currently received by the Murray-Darling Basin Commission
can continue to be received by the Authority when it assumes the
Commission's functions.
Item 148 paragraph 211(2)(a)
277. This item omits 'Commonwealth' and substitutes 'Authority' to reflect
the fact that the Authority can now hold property and enter into
contracts in its own name (see section 173), rather than the
Commonwealth undertaking this function on behalf of the Authority.
Item 149 Subsection 212(5)
278. This item reflects the fact that the Authority may now charge and
recover fees it its own name.
Item 150 After Subdivision C of Division 5 of Part 9
279. This item inserts a new Subdivision (Subdivision CA - Corporate Plan)
to give effect to the outcomes of the Reform IGA with respect to the
role of the Authority. The Commonwealth and Basin States agreed that
the Act would provide for the Authority to prepare an annual corporate
plan and budget which will cover both its Basin Plan role and its
functions under the revised Agreement.
280. Section 213A (Corporate Plan) deals with the preparation of the
corporate plan.
281. The plan must be prepared at least once per financial year, and must
cover a period of four financial years (subsections 213A(1) and (2)).
Subsection 213A(3) outlines the content of the corporate plan. This
includes the corporate plan approved by the Murray-Darling Ministerial
Council under the revised Agreement and the objectives, activities and
budget of the Authority for its Act-related functions.
282. Subsection 213A(4) requires the Authority to keep the Minister
informed about matters that may affect achieving the objectives set
out in the plan.
283. Section 213B (Variation of the Corporate Plan) allows the Authority to
vary the corporate plan at any time, except for that part of the
corporate plan approved by the Ministerial Council under the revised
Agreement, which may only be varied in accordance with the revised
Agreement.
284. Subsection 213B(3) requires the Authority to provide the Minister with
a copy of the variation.
Item 151 to 155 Subsections 214(1), (2) and (4)
285. Items 151 and 153 amend subsections 214(1) and 214(2) to require the
Chief Executive to prepare the annual report rather than the Authority
Chair. This is because the Chief Executive replaces the Authority
Chair as Head of Agency.
286. Item 152 amends subsection 214(1) to ensure the annual report is sent
to all members of the new Murray-Darling Basin Ministerial Council as
soon as it is prepared, not just to the Minister. This leads to the
consequential amendment repealing subsection 214(4), made under Item
155. Subsection 214(4) required the annual report to be sent to the
relevant State Ministers before the report is tabled in Parliament.
287. Item 154 adds a new paragraph 214(2)(e), which sets out additional
information that must be included in the annual report. This includes
information about the implementation of the corporate plan (see new
section 213A) and any other matters on which the Authority is required
to report under the revised Agreement.
Item 156 Paragraphs 216(3)(b) and (4)(b)
288. This item omits the reference to 'or a referring State' from
paragraphs 216(3)(b) and 216(4)(b) because those Parts of the Act that
rely on the referral are now to be listed in section 18B.
Item 157 Part 11 (heading)
289. This item repeals the heading 'Transitional' and substitutes for it
the heading 'Other transitional matters'. This is to take account of
the fact that the new Part 11A in Schedule 1 is now headed
'Transitional'.
Item 158 Subsection 246(3)
290. This item corrects a cross-reference by replacing the reference to
'subsection 65(2)' with a reference to 'subsection 55(2)'.
Item 159 Section 248 (note)
291. This item expands the note's application to all environmental assets
rather than limiting it to Basin environmental assets. This is to more
accurately reflection the import of subsection 105(3).
Item 160 After section 252
292. This item inserts a new section, 252A, which requires the Commonwealth
to make the dataset for the Murray-Darling Basin publicly available on
the Department's website.
Item 161 After section 255
293. This item inserts sections 255A (Application of water charge rules in
Basin States that are not referring States) and 255B (Application of
water market rules in Basin States that are not referring States).
These items provide for the application of the water charge rules and
water market rules in Basin States that are not referring States (for
example in the circumstance where a Basin State terminates its
reference). These sections list the Commonwealth constitutional powers
by virtue of which the water charge and water market rules can apply
in the absence of a referral of power from the States. These sections
are similar to sections 94 and 99 of the Act as originally enacted.
Item 162 At the end of section 256
294. This item inserts three new subsections 256(3), (4) and (5).
Subsection 256(3) allows regulations made under section 256 for the
purposes of Part 7 to make provision in relation to a matter by
applying, adopting or incorporating any matter contained in an
instrument or other writing as it is in force from time to time
(rather than only as in force at a particular point in time). This is
contrary to the general presumption in subsection 14(2) of the
Legislative Instruments Act 2003 as noted by subsection 256(4).
295. A capacity to apply, adopt or incorporate matters contained in an
instrument or other writing as it is in force from time to time is
particularly necessary under Part 7 for the Bureau of Meteorology
which is charged with producing a National Water Account. For example,
in order to do this it needs to obtain information from a wide range
of persons. Section 126 provides that it may specify persons or a
class of persons required to give water related information to the
Bureau in regulations. One such class of persons are local
governments. The range of local government bodies and their
responsibilities change from time to time. It is necessary to be able
to refer in the regulations to an up to date list of such bodies (for
example the register of local councils maintained by each State).
296. It should be noted that any regulations seeking to make provision in
relation to a matter by applying, adopting or incorporating any matter
contained in an instrument or other writing as it is in force from
time to time will be subject to Parliamentary scrutiny. This provides
a capacity for Parliament to consider any proposal to apply, adopt or
incorporate a particular matter as it is in force from time to time
and object should it have concerns.
297. Finally subsection 256(5) ensures that any instrument or other writing
applied, adopted or incorporated by regulation will be made publicly
available on the Bureau's website.
Item 163 Schedule 1
298. This item repeals the current Schedule 1 which sets out a map of the
Murray-Darling Basin. Schedule 1 is substitutes with Schedule 1A -
The Murray-Darling Basin, which contains a revised map. This is
provided for in item 7 of Schedule 1.
Item 164 Subparagraph 2(a)(ii) of Schedule 2 (second occurring)
299. This item renumbers the second instance of subparagraph 2(a)(ii) as
subparagraph 2(a)(iii).
Item 165 After Schedule 3
300. This item inserts a new Schedule 3A - Risk assignment framework, with
two parts: Part 1 sets out clauses 48 to 50 of the National Water
Initiative; and Part 2 sets out clause 10.1.3 of the Reform IGA. These
clauses are relied on in Part 2, Division 4 of the Act (Allocation of
risks in relation to reductions in water availability) as amended by
Schedule 2 of this Bill.
SCHEDULE 3 - Transitional Provisions
Part 1 - Staff transferring to the Authority
301. Items 1 and 2 operate so that where existing staff of the Commission
become employees of the Authority, their annual leave credits and long
service leave entitlements will be transferred and not paid out.
Further, existing staff of the Commission with accrued long service
leave transferring to the Authority will continue to accrue, and will
continue to be able to be take, their long service leave in accordance
with the Long Service Leave Act 1976 of the Australian Capital
Territory rather than in accordance with the Long Service Leave
(Commonwealth Employees) Act 1976 of the Commonwealth, which will
apply to all new employees.
302. Item 3 applies so that when the Commission's collective agreement
transmits to the Authority when Commission employees are employed by
the Authority, the collective agreement also applies to persons who
are employed by the Authority after the transmission (other than at
SES level). However, the collective agreement will not apply to those
employees to the extent that the person's terms of employment are
provided for by a Commonwealth law.
Part 2 - Appointments etc
303. An Authority member and acting Chair has been appointed to the
Authority by the Minister under the Act. The position of Chair is
being modified by the amendments to the Act set out in Schedule 2. In
particular the Chair will no longer be the Head of Agency, with this
position instead being filled by a Chief Executive. Item 4 deems the
person appointed as an Authority member and acting Chair under the Act
prior to the commencement of Schedule 2 to be the Chief Executive on
commencement of Schedule 2.
304. The Chief Executive is able to perform any of the functions and
exercise any powers of the Authority if there are insufficient
Authority members appointed to make up a quorum after commencement
(Item 5(1)). However, this ability is limited to a maximum period of
12 months (Item 5(2)). This is considered to provide a reasonable time
for the appointment of all Authority members.
305. Item 6 provides for officers of the Commission authorised to enter
land under the New South Wales, Victorian and South Australian Murray-
Darling Basin Acts for the purposes of the Agreement, and who transfer
to the over to the Authority, to be deemed to be authorised officers
for the same purposes under Part 10 of the Act. They are not,
however, deemed to be officers for functions exercised under the Act
other than under Part 1A.
Part 3 - Miscellaneous
306. Item 7 enables delegation of all of the Authority's functions and
powers to the Chief Executive to take effect on commencement of this
Part.
307. Item 8 provides for the Commonwealth to indemnify former Presidents,
Deputy Presidents, Commissioners and officers of the Commission for
any liability incurred, prior to the transition, for an act or
omission the course of performing their duties. This excludes any
liability arising from an act or omission in bad faith (Item 8(4)).
The Agreement provides for the Basin States to indemnify the
Commonwealth for a share of the costs associated with this indemnity.
308. Item 9 provides for the making of regulations providing for further
transitional matters relating to the transfer of employees from the
Murray-Darling Basin Commission to the Authority.