WATER AMENDMENT BILL 2008

i Water Amendment Bill 2008 No. , 2008

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Amendme nts based on referrals of powe r

Water Act 2007

Schedule 2--Other ame ndments

263

Part 1--Repeal

263

Murray-Darling Basin Act 1993

263

Part 2--Amendments

264

Legislative Instruments Act 2003

264

Trade Practices Act 1974

264

Water Act 2007

264

Schedule 3--Transitional provisions

299

Part 1--Staff

299

Part 2--Appointments etc.

301

Part 3--Miscellaneous

303

Water Amendment Bill 2008 No. , 2008 1

A Bill for an Act to amend the Water Act 2007, and

for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Water Amendment Act 2008.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Water Amendment Bill 2008 No. , 2008

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

Immediately after the commencement of the

provision(s) covered by table item 3.

3. Schedule 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

4. Schedule 3

Immediately after the commencement of the

provision(s) covered by table item 3.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 3

Schedule 1

Amendments based on referrals

of power

Water Act 2007

1 After Part 1

Insert:

Part 1A--The Murray-Darling Basin Agreement

Division 1--Preliminary

18A Definitions

In this Act:

Agreement means the Murray-Darling Basin Agreement, as

amended from time to time in accordance with that agreement and

as set out in Schedule 1.

Note:

The Murray-Darling Basin Agreement operates as an agreement

between the parties. The text of the Agreement is set out in

Schedule 1, and as such it has further effect as provided for by this Act

(for example, see sections 18E and 18F).

Authority means the Murray-Darling Basin Authority established

by section 171.

Basin Officials Committee means the committee established under

the Agreement.

Murray-Darling Basin means the area falling within the boundary

described in the dataset that:

(a) is titled Murray-Darling Basin Boundary--Water Act 2007;

and

(b) has a dataset scale of 1:250,000; and

division derived from the dataset that is titled "Australias

River Basins 1997" and is dated 30 June 1997; and

(d) is held by the Commonwealth.

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4 Water Amendment Bill 2008 No. , 2008

Note 1:

An indicative map of this area is set out in Schedule 1A.

Note 2:

A copy of the dataset can be obtained from the Departments website:

see section 252A.

Murray-Darling Basin Ministerial Council has the same meaning

as Ministerial Council in the Agreement.

18B Meaning of referring State

Reference of matters by State Parliament to Commonwealth

Parliament

(1) A State is a referring State if the Parliament of the State has

referred the matters covered by subsections (3) and (4) in relation

to the State to the Parliament of the Commonwealth for the

purposes of paragraph 51(xxxvii) of the Constitution:

(a) if and to the extent that the matters are not otherwise included

in the legislative powers of the Parliament of the

Commonwealth (otherwise than by a reference under

paragraph 51(xxxvii) of the Constitution); and

(b) if and to the extent that the matters are included in the

legislative powers of the Parliament of the State.

This subsection has effect subject to subsections (5) and (6).

(2) A State is a referring State even if a law of the State provides that

the reference to the Parliament of the Commonwealth of either or

both of the matters covered by subsections (3) and (4) is to

terminate in particular circumstances.

Reference covering initial provisions of this Act

(3) This subsection covers the matters to which the referred provisions

for the State in question relate to the extent of making laws with

respect to those matters by including the referred provisions in this

Act.

Reference covering amendments of this Act

(4) This subsection covers:

(a) if the State in question is a Basin State--the referred subject

matters; and

(b) in any case--the matter of the application, in relation to

water resources that are not Basin water resources, of

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 5

provisions of this Act dealing with the subject matters

specified in paragraphs (c) and (d) of the definition of

referred subject matters in subsection (9) (being an

application of a kind that is authorised by the law of the State

in question);

to the extent of the making of laws with respect to those matters by

making express amendments of this Act.

Effect of termination of reference

(5) A State ceases to be a referring State if the States initial reference

terminates.

(6) Subject to subsections (7) and (8), a State ceases to be a referring

State if the States amendment reference terminates.

(7) A State does not cease to be a referring State because of the

termination of its amendment reference if:

(a) the termination is effected by the Governor of that State

fixing a day by proclamation as the day on which the

reference terminates; and

(b) the day fixed is no earlier than the first day after the end of

the period of 6 months beginning on the day on which the

proclamation is published; and

reference of every other referring State, terminate on the

same day.

(8) A State does not cease to be a referring State because of the

termination of its amendment reference if:

(a) a Bill is introduced into a House of the Parliament that

includes a proposed amendment of the referred provisions, or

that would, if enacted, have the effect that this Act would no

longer contain:

(i) subsections 22(10), (11) and (12), or provisions having

substantially the same effect; or

(ii) Part 11A, or provisions having substantially the same

effect; and

(b) the Governor of the State, by proclamation, issues a notice

stating that:

(i) the State has not agreed to the amendment; and

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6 Water Amendment Bill 2008 No. , 2008

(ii) this subsection will apply in relation to the State from a

day specified in the notice; and

Murray-Darling Basin Ministerial Council informs the other

members of the Murray-Darling Basin Ministerial Council

that the notice was issued; and

(d) the Governor does not revoke the notice before:

(i) the day specified in the notice passes; or

(ii) the Bill is enacted in a form that includes that

amendment or a substantially similar amendment;

whichever happens later.

Definitions

(9) In this section:

amendment includes the insertion, omission, repeal, substitution,

addition or relocation of words or matter.

amendment reference of a State means the reference by the

Parliament of the State to the Parliament of the Commonwealth of

the matters covered by subsection (4).

express amendment of this Act means the direct amendment of:

(a) the referred provisions; or

(b) definitions in this Act of terms used in the referred

provisions;

but does not include the enactment by a Commonwealth Act of a

provision that has, or will have, substantive effect otherwise than

as part of the text of the referred provisions or those definitions.

initial reference of a State means the reference by the Parliament

of the State to the Parliament of the Commonwealth of the matters

covered by subsection (3).

referred provisions, for a State, means:

(a) if the State is a Basin State--this Part and Parts 2A, 4, 4A,

10A and 11A, as originally enacted by the Water Amendment

Act 2008, to the extent to which they deal with matters that

are included in the legislative powers of the Parliament of the

State; or

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Water Amendment Bill 2008 No. , 2008 7

(b) if the State is not a Basin State--Parts 4A and 11A, as

originally enacted by the Water Amendment Act 2008, to the

extent to which they deal with matters that are included in the

legislative powers of the Parliament of the State.

referred subject matters means any of the following:

(a) the powers, functions and duties conferred on

Commonwealth agencies that:

(i) relate to Basin water resources; and

(ii) are conferred by or under the Agreement;

(b) the management of Basin water resources to meet critical

human water needs;

than for urban water supply after the removal of the water

from a Basin water resource);

(d) the transformation of entitlements to water from a Basin

water resource to enable trading in those water entitlements;

(e) the transfer of assets, rights and liabilities of the

Murray-Darling Basin Commission to the Authority, and

other transitional matters relating to the replacement of the

Murray-Darling Basin Commission.

(10) A reference in this section to a Part of this Act includes a reference

to any Schedule to this Act that contains provisions enacted for the

purposes of that Part.

Division 2--The Murray-Darling Basin Agreement

18C Amendme nt of Schedule 1

(1) The regulations may make amendments to Schedule 1 by

incorporating into the Agreement amendments made to, and in

accordance with, the Murray-Darling Basin Agreement.

Note 1:

The Murray-Darling Basin Agreement requires the agreement of the

Murray-Darling Basin Ministerial Council to any amendments of the

Murray-Darling Basin Agreement.

Note 2:

Amendments of the Murray-Darling Basin Agreement, made in

accordance with that agreement, operate as an agreement between the

parties. The text of the Agreement as set out in Schedule 1 will be

amended accordingly, and as such it has further effect as provided for

by this Act (for example, see sections 18E and 18F). The amendment

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8 Water Amendment Bill 2008 No. , 2008

of the Schedule by itself cannot amend the agreement between the

parties.

(2) A reference in subsection (1) to amendment includes a reference to

the insertion, omission, repeal, substitution, addition or relocation

of words or matter.

(3) Part 6 (sunsetting) of the Legislative Instruments Act 2003 does not

apply to regulations made for the purposes of this section.

18D Protocols made by the Authority

A protocol made by the Authority under a Schedule to the

Agreement is a legislative instrument, but neither section 42

(disallowance) nor Part 6 (sunsetting) of the Legislative

Instruments Act 2003 applies to the protocol.

Division 3--Functions, powers and duties under the

Agreement

18E Additional functions, powers and duties of the Authority

(1) Without limiting sections 172 and 173, the Authority has, in a

referring State or the Australian Capital Territory, the functions,

powers and duties that:

(a) are expressed to be conferred on it by or under the

Agreement; and

(b) relate to the water and other natural resources of the

Murray-Darling Basin.

(2) In performing these functions and duties and exercising these

powers, the Authority must comply with any requirements under

the Agreement.

(3) The Authority has, in connection with:

(a) the performance of its functions and duties under this Part;

and

(b) the exercise of its powers under this Part;

such powers in a referring State or the Australian Capital Territory

as it has in connection with the performance of its other functions

under this Act.

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Water Amendment Bill 2008 No. , 2008 9

(4) However, the application of subsection (3) to the Authoritys

powers under Part 10 is limited to the Authoritys powers under:

(a) Subdivision A of Division 2 of that Part (Authorised

officers); and

(b) Subdivision B of Division 2 of that Part (Powers to enter land

etc. other than for compliance purposes); and

(5) Part 10 so applies as if:

(a) the application of that Part in relation to premises in, or

information held in, a referring State or the Australian

Capital Territory were not limited by section 216 or 219 or

by subsection 238(1); and

(b) references in section 221 to the Authoritys functions under

section 219 included references to the Authoritys functions

under this Part.

(6) However:

(a) an authorised officer must not enter premises under

Subdivision B of Division 2 of that Part as applied by this

section unless he or she reasonably believes this is necessary

for the performance of any of the Authoritys functions under

this Part; and

(b) Subdivision B of Division 2 of that Part as applied by this

section does not extend to entering premises for the purposes

of:

(i) monitoring compliance with this Part or regulations

made for the purposes of this Part; or

(ii) searching for evidential material; and

under Division 3 of that Part as applied by this section unless

the Authority has reason to believe that information relating

to a matter:

(i) relevant to the performance of the Authoritys functions

under this Part; and

(ii) specified in regulations made for the purposes of this

paragraph;

is in the persons possession, custody or control (whether

held electronically or in any other form).

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10 Water Amendment Bill 2008 No. , 2008

Note:

The conferral of functions, powers and duties on the Authority by this

section does not otherwise give the Agreement any effect as a law of

the Commonwealth.

18F Additional functions, powe rs and duties of the Basin

Community Committee

(1) Without limiting section 202, the Basin Community Committee

has, in a referring State or the Australian Capital Territory, the

functions, powers and duties that:

(a) are expressed to be conferred on it by or under the

Agreement; and

(b) relate to the water and other natural resources of the

Murray-Darling Basin.

(2) In performing these functions and duties and exercising these

powers, the Basin Community Committee must comply with any

requirements under the Agreement.

Note:

The conferral of functions, powers and duties on the Basin

Community Committee by this section does not otherwise give the

Agreement any effect as a law of the Commonwealth.

18G Management of money and assets

The Authority must deal with:

(a) any money under the Agreement; and

(b) any assets it acquires with that money; and

in a way that is in accordance with the Agreement and consistent

with the purposes of the Agreement.

18H Managing water access rights etc. for the Living Murray

Initiative

(1) The Authority must, if the Living Murray Initiative so provides,

manage the rights and interests that:

(a) are:

(i) water access rights, water delivery rights, irrigation

rights or other similar rights relating to water; or

(ii) interests in, or in relation to, such rights; and

(b) are held for the purposes of the Living Murray Initiative;

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Water Amendment Bill 2008 No. , 2008 11

in accordance with and in a way that gives effect to the Living

Murray Initiative.

(2) The Living Murray Initiative is the Intergovernmental Agreement

on Addressing Water Overallocation and Achieving Environmental

Objectives in the Murray-Darling Basin of 25 June 2004 read

together with:

(a) the Supplementary Intergovernmental Agreement on

Addressing Water Overallocation and Achieving

Environmental Objectives in the Murray-Darling Basin of

14 July 2006; and

(b) arrangements referred to in clause 3.9.2 of the Agreement on

Murray-Darling Basin Reform-Referral.

2 After Part 2

Insert:

Part 2A--Critical human water needs

86A Critical human water needs to be taken into account in

developing Basin Plan

(1) Without limiting section 21, the Basin Plan must be prepared

having regard to the fact that the Commonwealth and the Basin

States have agreed:

(a) that critical human water needs are the highest priority water

use for communities who are dependent on Basin water

resources; and

(b) in particular that, to give effect to this priority in the River

Murray System, conveyance water will receive first priority

from the water available in the system.

(2) Critical human water needs are the needs for a minimum amount

of water, that can only reasonably be provided from Basin water

resources, required to meet:

(a) core human consumption requirements in urban and rural

areas; and

(b) those non-human consumption requirements that a failure to

meet would cause prohibitively high social, economic or

national security costs.

Schedule 1 A mendments based on referrals of power

12 Water Amendment Bill 2008 No. , 2008

(3) The River Murray System is the aggregate of:

(a) the main course of the River Murray upstream of the eastern

boundary of South Australia; and

(b) all tributaries entering that part of the main course upstream

of Doctors Point (near Albury); and

and

(d) the watercourses connecting Lake Victoria to the main

course; and

(e) the Darling River downstream of the Menindee Lakes

Storage; and

(f) the upper River Murray storages, namely:

(i) Lake Victoria; and

(ii) the Menindee Lakes Storage; and

(iii) the storages formed by Dartmouth Dam and Hume

Dam; and

(iv) the storages formed by the weirs, and weirs and locks,

described in Schedule A to the Agreement that are

upstream of the eastern boundary of South Australia;

and

(g) the River Murray in South Australia.

(4) Conveyance water is water in the River Murray System required to

deliver water to meet critical human water needs as far downstream

as Wellington in South Australia.

86B Basin Plan to provide for critical human water needs

(1) The Basin Plan must:

(a) include a statement of the amount of water required in each

Basin State that is a referring State (other than Queensland)

to meet the critical human water needs of the communities in

the State that are dependent on the waters of the River

Murray System; and

(b) include a statement of the amount of conveyance water

required to deliver the water referred to in paragraph (a); and

at which water in the River Murray System becomes

unsuitable for meeting critical human water needs.

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Water Amendment Bill 2008 No. , 2008 13

(2) The reference in paragraph (1)(a) to communities in a Basin State

who are dependent on the waters of the River Murray System does

not include a reference to communities dependent on the waters of

the Edward-Wakool System downstream of Stevens Weir.

86C Additional matters relating to monitoring, assessment and risk

manage ment

(1) The Basin Plan must also specify:

(a) arrangements for monitoring matters relevant to critical

human water needs, including monitoring the quality,

quantity and flows of surface water, the health of ecosystems

and social impacts on communities; and

(b) the process for assessing, and managing risks to critical

human water needs associated with, inflow prediction:

(i) in the River Murray System; and

(ii) in relation to works that are under the control of the

body that is entitled, under the Snowy Hydro

Corporatisation Act 1997 of New South Wales, to the

Snowy water licence within the meaning of that Act;

and

relating to arrangements for critical human water needs in

future years.

(2) The risk management approach referred to in paragraph (1)(c) must

address the making of decisions about whether water is:

(a) made available, in a particular year, for uses other than

meeting critical human water needs; or

(b) set aside for critical human water needs in future years.

86D Additional matters relating to Tier 2 water sharing

arrange ments

(1) The Basin Plan must also:

(a) specify the conditions under which, due to the likelihood that

the State water sharing arrangements that would apply but for

this Part (Tier 1 water sharing arrangements) will not

ensure that there is enough water to meet conveyance water

needs:

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14 Water Amendment Bill 2008 No. , 2008

(i) the Tier 1 water sharing arrangements cease to apply;

and

(ii) other State water sharing arrangements (Tier 2 water

sharing arrangements), provided for in the Agreement,

commence; and

(b) specify the conditions under which Tier 2 water sharing

arrangements cease to apply and Tier 1 water sharing

arrangements recommence; and

water sharing arrangements apply:

(i) specifies the annual volume of water required to be

reserved to meet the shortfall in conveyance water

worked out under subsection (2); and

(ii) specifies the extent to which this volume may vary

between years; and

(iii) specifies the arrangements that are to apply to ensure

that the volume of water required to meet the shortfall in

conveyance water will be reserved and provided; and

(iv) takes into account the potential inputs from the

Murrumbidgee, Darling and Goulburn Rivers; and

(d) specify arrangements for carrying water over in storage from

one year to another for New South Wales, Victoria and South

Australia; and

(e) provide for any other matters necessary to give effect to

arrangements for sharing water in the River Murray System

and in the Murrumbidgee, Darling and Goulburn Rivers in

order to provide conveyance water.

(2) The shortfall in conveyance water is worked out for the purposes

of subparagraph (1)(c)(i) by subtracting:

(a) the amount of conveyance water referred to in paragraph

86B(1)(b); from

(b) the minimum inflow sequence to the River Murray System

from:

(i) natural flows; and

(ii) works that are under the control of the body that is

entitled, under the Snowy Hydro Corporatisation Act

1997 of New South Wales, to the Snowy water licence

within the meaning of that Act.

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Water Amendment Bill 2008 No. , 2008 15

(3) The arrangements referred to in paragraph (1)(d) must:

(a) recognise South Australias right, as provided for in

clauses 91 and 130 of the Agreement, to store its entitlement

to water; and

(b) recognise that each of New South Wales, Victoria and South

Australia is responsible for meeting the critical human water

needs of that State, and will decide how water from its share

is used.

(4) State water sharing arrangements are the provisions of the

Agreement that deal with the sharing of surface water in the River

Murray System.

Note:

The rules and accounting arrangements in the Agreement partition the

shared surface water resource of the River Murray System between

New South Wales and Victoria, and detail the entitlements to this

water by South Australia. The Agreement includes provisions about

the way in which the shares are defined, transferred and accounted for,

access to and sharing of the storages, access to flows at different times

and accounting for losses and overflows. All these provisions are used

to determine the quantity of water in each States share at any given

time.

86E Additional matters relating to Tier 3 water sharing

arrange ments

(1) The Basin Plan must also:

(a) specify the conditions under which, due to one or more of the

circumstances referred to in subsection (2):

(i) Tier 2 water sharing arrangements cease to apply; and

(ii) other arrangements (Tier 3 water sharing

arrangements), provided for in the Agreement,

commence; and

(b) specify the conditions under which Tier 3 water sharing

arrangements cease to apply and Tier 2 water sharing

arrangements recommence.

(2) For the purposes of paragraph (1)(a), the circumstances are:

(a) there are extreme and unprecedented low levels of water

availability in the River Murray System; or

(b) there is extreme and unprecedented poor water quality in the

water available in the River Murray System to meet critical

human water needs; or

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16 Water Amendment Bill 2008 No. , 2008

in the River Murray System to meet critical human water

needs during the next 12 months.

86F Eme rgency responses to the reaching of trigge r points

(1) If a water quality trigger point or salinity trigger point referred to in

paragraph 86B(1)(c) is reached, the Authority must:

(a) in consultation with the Basin Officials Committee,

formulate an emergency response to ensure that water in the

River Murray System that is available to meet critical human

water needs is returned to a state suitable for meeting critical

human water needs; and

(b) subject to subsection (2), take the action necessary to

implement the emergency response.

(2) The Authority must not take any action under paragraph (1)(b) that

affects State water sharing arrangements or Border Rivers water

sharing arrangements unless the Murray-Darling Basin Ministerial

Council has agreed to the action.

(3) Border Rivers water sharing arrangements are the agreements

ratified by:

(a) the New South Wales-Queensland Border Rivers Act 1947 of

New South Wales; and

(b) the New South Wales-Queensland Border Rivers Act 1946 of

Queensland;

that deal with the distribution and use of surface water.

86G Effect of this Part on Authority and othe r agencies of the

Commonwealth

(1) The Authority and other agencies of the Commonwealth must

perform their functions, and exercise their powers, consistently

with, and in a manner that gives effect to, the matters included or

specified in the Basin Plan under this Part.

(2) Subsection (1) does not apply to the performance of a function, or

the exercise of a power, that affects State water sharing

arrangements or Border Rivers water sharing arrangements, unless:

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Water Amendment Bill 2008 No. , 2008 17

(a) the Murray-Darling Basin Ministerial Council has agreed to

the Basin Plan applying to the performance of the function or

the exercise of the power; or

(b) the performance of the function or the exercise of the power

takes place at a time when, under clause 135 of the

Agreement, the provisions of the Basin Plan required by this

Part are taken to be a Schedule to the Agreement.

(3) To avoid doubt, subsection (1) does not apply to the Authoritys

functions and powers under this Part.

86H Effect of this Part on other agencies and persons

(1) The Basin Officials Committee, an agency of a Basin State that is a

referring State or an agency of the Australian Capital Territory

must not:

(a) do an act in relation to Basin water resources if the act is

inconsistent with any of the matters included or specified in

the Basin Plan under this Part; or

(b) fail to do an act in relation to Basin water resources if the

failure to do that act is inconsistent with any of those matters.

(2) Subsection (1) applies to an act of the Basin Officials Committee,

an agency of a Basin State that is a referring State or an agency of

the Australian Capital Territory only if the act is one that relates to

the use or management of the Basin water resources.

(3) An operating authority, an infrastructure operator or the holder of a

water access right must not, in a Basin State that is a referring

State, or in the Australian Capital Territory:

(a) do an act in relation to Basin water resources if the act is

inconsistent with any of the matters included or specified in

the Basin Plan under this Part; or

(b) fail to do an act in relation to Basin water resources if the

failure to do that act is inconsistent with any of those matters.

(4) Subsection (1) or (3) does not apply to an act, or failure to act, that

affects State water sharing arrangements or Border Rivers water

sharing arrangements, unless:

(a) the Murray-Darling Basin Ministerial Council has agreed to

the Basin Plan applying to the act or failure; or

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18 Water Amendment Bill 2008 No. , 2008

(b) the act or failure takes place at a time when, under clause 135

of the Agreement, the provisions of the Basin Plan required

by this Part are taken to be a Schedule to the Agreement.

86J Additional powe rs of the Authority

(1) The Authority has, in connection with:

(a) the performance of its functions and duties under this Part;

and

(b) the exercise of its powers under this Part;

such powers in a Basin State that is a referring State, or in the

Australian Capital Territory, as it has in connection with the

performance of its other functions under this Act.

(2) The application of subsection (1) to the Authoritys powers under

Part 10 in relation to premises in, or information held in, a referring

State or the Australian Capital Territory is not limited by

section 216 or 219 or by subsection 223(1) or 238(1).

(3) Part 10 so applies as if:

(a) references in section 221 to the Authoritys functions under

section 219 included references to the Authoritys functions

under this Part; and

(b) for the purposes of Subdivision C of Division 2 of that Part,

references in the definition of evidential material in

subsection 4(1) to Part 2 included references to this Part; and

included references to this Part.

(4) However:

(a) an authorised officer must not enter premises under

Subdivision B of Division 2 of that Part as applied by this

section unless he or she reasonably believes this is necessary

for the performance of any of the Authoritys functions under

this Part; and

(b) Subdivision B of Division 2 of that Part as applied by this

section does not extend to entering premises for the purposes

of:

(i) monitoring compliance with this Part or regulations

made for the purposes of this Part; or

(ii) searching for evidential material; and

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Water Amendment Bill 2008 No. , 2008 19

(i) enter premises under Subdivision C of Division 2 of that

Part as applied by this section; or

(ii) exercise any of the powers described in subsection

223(2);

except to the extent that this is reasonably necessary to

monitor compliance with provisions of this Part or

regulations made for the purposes of this Part; and

(d) the Authority must not require a person to give information

under Division 3 of that Part as applied by this section unless

the Authority has reason to believe that information relating

to either of the following matters:

(i) the preparation and implementation of the Basin Plan in

the way provided for in this Part;

(ii) a matter that is relevant to the performance of the

Authoritys functions under this Part and that is

specified in regulations made for the purposes of this

paragraph;

is in the persons possession, custody or control (whether

held electronically or in any other form).

3 After Part 3

Insert:

Part 4--Basin water charge and water market rules

Division 1--Water charge rules

91 Regulated water charges

(1) This Division applies to the following kinds of charges:

(a) fees or charges (however described) payable to an irrigation

infrastructure operator for:

(i) access to the operators irrigation network (or services

provided in relation to that access); or

(ii) changing access to the operators irrigation network (or

services provided in relation to that access); or

(iii) terminating access to the operators irrigation network

(or services provided in relation to that access); or

Schedule 1 A mendments based on referrals of power

20 Water Amendment Bill 2008 No. , 2008

(iv) surrendering to the operator a right to the delivery of

water through the operators irrigation network;

(b) bulk water charges;

(d) a fee or charge (however described) that relates to:

(i) access to water service infrastructure; or

(ii) services provided in relation to access to water service

infrastructure; or

(iii) services provided through the operation of water service

infrastructure; or

(iv) the taking of water from a water resource;

and is of a kind prescribed by the regulations for the purposes

of this paragraph.

(2) This Division applies to a charge of the kind referred to in

subsection (1) only to the extent to which the charge relates to:

(a) Basin water resources; or

(b) water service infrastructure that carries Basin water

resources; or

taken from a Basin water resource; or

(d) water access rights, irrigation rights or water delivery rights

in relation to Basin water resources.

(3) However, this Division does not apply to charges in respect of

urban water supply activities beyond the point at which the water

has been removed from a Basin water resource.

(4) Charges to which this Division applies are regulated water

charges for the purposes of this Act.

92 Wate r charge rules

(1) The Minister may make rules (to be called water charge rules),

applying in Basin States that are referring States and in the

Australian Capital Territory, that:

(a) relate to regulated water charges; and

(b) deal with one or more of the matters referred to in

subsection (3); and

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Water Amendment Bill 2008 No. , 2008 21

and principles set out in Schedule 2.

(2) Water charge rules are legislative instruments.

(3) Water charge rules may deal with the following matters:

(a) the rules that must be applied in determining the amount of:

(i) regulated water charges generally; or

(ii) regulated water charges of a particular kind;

(b) the terms and conditions that may, or must not, be imposed in

relation to:

(i) regulated water charges generally; or

(ii) regulated water charges of a particular kind;

water charges;

(d) the process to be followed in applying for, and making or

giving, determinations or approvals of the kind referred to in

paragraph (c);

(e) the accreditation by the ACCC of arrangements under which

regulated water charges are determined or approved by

agencies of the States (instead of by the ACCC);

(f) the process to be followed in applying for, and making or

giving, accreditation of the kind referred to in paragraph (e);

(g) the terms and conditions on which arrangements are

accredited under rules made for the purposes of paragraph (e)

(including the determination of some or all of those terms

and conditions by the ACCC);

(h) the obligations to be imposed in relation to the accreditation

of arrangements under rules made for the purposes of

paragraph (e) (including the determination of some or all of

those obligations by the ACCC);

(i) the prohibition of regulated water charges of a particular kind

in the circumstances specified in the rules;

(j) the imposition of a requirement on the person determining

the amount of regulated water charges to publish:

(i) the details of the charges; and

(ii) the process for determining the amount of the charges;

(k) transitional arrangements for the introduction of, or changes

to, water charge rules;

(l) any matter that was dealt with in:

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22 Water Amendment Bill 2008 No. , 2008

(i) paragraph 15(3)(c) of Schedule E to the former MDB

Agreement; or

(ii) the Access and Exit Fees Protocol to the former MDB

Agreement made under paragraph 6(1)(f) of Schedule E

to the former MDB Agreement.

(4) Without limiting paragraph (3)(c), water charge rules may specify

the effect, and duration, of a determination or approval of the kind

referred to in that paragraph.

(5) Without limiting paragraph (3)(d), water charge rules may specify:

(a) the information that an applicant for a determination or

approval of the kind referred to in paragraph (3)(c) must give

the ACCC in relation to the application; and

(b) the timing of the steps in the process in which:

(i) the application is made; and

(ii) the determination is made or the approval is given.

(6) Without limiting paragraph (3)(e), the rules made for the purposes

of that paragraph may provide for the circumstances in which:

(a) an accreditation may be revoked; or

(b) the terms and conditions on which an accreditation is given

may be varied.

(7) Without limiting subsection (3), particular water charge rules may

be limited to either or both of the following:

(a) particular kinds of regulated water charges;

(b) regulated water charges in relation to particular water

resources.

(8) Without limiting subsection (3), water charge rules may provide

that a particular provision of the rules is a civil penalty provision.

(9) The civil penalty for a contravention of a provision specified under

subsection (8) is 200 penalty units.

(10) Without limiting subsection (3), water charge rules may provide

that a person who suffers loss or damage as a result of conduct, or

an omission, of another person that contravenes the water charge

rules may recover the amount of the loss or damage by action

against that other person or against any person involved in the

contravention.

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Water Amendment Bill 2008 No. , 2008 23

93 Process for making water charge rules

(1) The Minister must ask the ACCC for advice about water charge

rules the Minister proposes to make, or about proposed

amendments or revocations of rules.

(2) The ACCC must give the Minister advice about the proposed water

charge rules, or proposed amendments or revocations.

(3) In giving advice to the Minister about proposed water charge rules,

or proposed amendments or revocations, in relation to regulated

water charges payable to infrastructure operators, the ACCC must

have regard to:

(a) the governance arrangements of those operators; and

(b) the current charging arrangements of those operators; and

(4) The Minister must have regard to the ACCCs advice in making,

amending or revoking the water charge rules.

(5) The regulations must provide for the process that the Minister is to

follow in making, amending or revoking water charge rules.

(6) Without limiting subsection (5), the regulations must provide for:

(a) consultations with the Basin States and with infrastructure

operators; and

(b) public consultations;

as part of the process of making, amending or revoking water

charge rules.

(7) If:

(a) the Minister makes, amends or revokes water charge rules;

and

(b) the rules do not reflect the advice that the ACCC gave the

Minister under subsection (2) in relation to the rules, or the

amendments or revocations;

the Minister must, when the rules, amendments or revocations are

laid before a House of the Parliament under the Legislative

Instruments Act 2003, also lay before that House a document that

sets out:

do not reflect the advice given by the ACCC; and

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24 Water Amendment Bill 2008 No. , 2008

(d) the Ministers reasons for departing from that advice.

94 ACCC to monitor water charges and compliance

(1) The ACCC is to monitor:

(a) regulated water charges; and

(b) compliance with the water charge rules.

(2) The ACCC must give the Minister a report on the results of such

monitoring.

(3) The reports under subsection (2) must be given to the Minister in

accordance with an agreement between the Minister and the

ACCC.

95 Minister may formulate model wate r charge rules

(1) The Minister may formulate, in writing, model rules for regulated

water charges.

Note:

The model rules do not have any legal effect under this Act but are

available for adoption by States, Territories, infrastructure operators

and other persons.

(2) Model rules formulated under subsection (1) are not legislative

instruments.

96 Transitional provisions relating to wate r charge rules

(1) A request that the Minister made to the ACCC before the

commencement of this section, under subsection 93(1) as in force

before that commencement, is taken after that commencement to

be a request that the Minister made under that subsection as in

force after that commencement.

(2) Regulations made before the commencement of this section for the

purposes of subsection 93(5) or (6) as in force before that

commencement continue in force after that commencement as if

they were made for the purposes of that subsection as in force after

that commencement.

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Water Amendment Bill 2008 No. , 2008 25

Division 2--Water market rules

97 Wate r market rules

(1) The Minister may make rules (to be called water market rules),

applying in Basin States that are referring States and in the

Australian Capital Territory, that:

(a) relate to an act that an irrigation infrastructure operator does,

or fails to do, in a way that prevents or unreasonably delays

arrangements being made that would reduce the share

component of a water access entitlement of the operator to

allow:

(i) a persons entitlement to water under an irrigation right

against the operator; or

(ii) a part of that entitlement;

to be permanently transformed into a water access

entitlement that is held by someone other than the operator;

and

(b) contribute to achieving the Basin water market and trading

objectives and principles set out in Schedule 3.

Arrangements of the kind referred to in paragraph (a) are referred

to in this section as transformation arrangements.

(2) Water market rules are legislative instruments.

(3) Without limiting subsection (1), water market rules may deal with

the restrictions that an irrigation infrastructure operator may, or

may not, impose in relation to:

(a) transformation arrangements; or

(b) the trading or transferring, by a person who had an irrigation

right against the operator, of a water access entitlement, or

part of such an entitlement, obtained as a result of

transformation arrangements.

(4) Without limiting subsection (3), the restrictions referred to in that

subsection include:

(a) restrictions imposed by including provisions in a contract,

arrangement or understanding between an irrigation

infrastructure operator and:

(i) a person who has an irrigation right against the operator;

Schedule 1 A mendments based on referrals of power

26 Water Amendment Bill 2008 No. , 2008

(ii) a person who has a water access entitlement, or part of

such an entitlement, that the person obtained as a result

of transformation arrangements in relation to an

irrigation right the person had against the operator; and

(b) restrictions imposed by the way in which an irrigation

infrastructure operator conducts its operations.

(5) Without limiting subsection (1), water market rules may:

(a) permit an irrigation infrastructure operator to require security

before allowing:

(i) a person who holds an irrigation right against the

operator to obtain a water access entitlement, or part of

such an entitlement, through transformation

arrangements in relation to the irrigation right; or

(ii) a person who has obtained a water access entitlement, or

part of such an entitlement, as a result of transformation

arrangements in relation to an irrigation right the person

had against the operator to trade or transfer the water

access entitlement, or part, obtained; and

(b) provide for transitional arrangements in relation to contracts

that have been entered into between an irrigation

infrastructure operator and another person before water

market rules are made or amended.

(6) Water market rules must not prevent an irrigation infrastructure

operator from:

(a) imposing, or requiring the payment of, a regulated water

charge; or

(b) requiring the approval of a person who holds a legal or

equitable interest in an irrigation right that a person has

against the operator before allowing transformation

arrangements in relation to that irrigation right.

(7) Without limiting subsection (1), water market rules may provide

that a particular provision of the rules is a civil penalty provision.

(8) The civil penalty for a contravention of a provision specified under

subsection (7) is 200 penalty units.

(9) Without limiting subsection (1), water market rules may provide

that a person who suffers loss or damage as a result of conduct, or

an omission, of another person that contravenes the water market

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 27

rules may recover the amount of the loss or damage by action

against that other person or against any person involved in the

contravention.

(10) No claim, action or demand may be made, asserted or taken against

an irrigation infrastructure operator for anything done by the

operator solely for the purpose of complying with water market

rules.

(11) Before the Basin Plan first takes effect, this section applies in

relation to any entitlement that is a perpetual or ongoing

entitlement, by or under a law of a State or Territory, to exclusive

access to a share of the Basin water resources as if the entitlement

were a water access entitlement.

98 Process for making water market rules

(1) The Minister must ask the ACCC for advice about water market

rules the Minister proposes to make, or about proposed

amendments or revocations of rules.

(2) The ACCC must give the Minister advice about the proposed water

market rules, or proposed amendments or revocations.

(3) The Minister must have regard to the ACCCs advice in making,

amending or revoking the water market rules.

(4) The regulations must provide for the process that the Minister is to

follow in making, amending or revoking water market rules.

(5) Without limiting subsection (4), the regulations must provide for:

(a) consultations with the Basin States and with infrastructure

operators; and

(b) public consultations;

as part of the process of making, amending or revoking water

market rules.

(6) If:

(a) the Minister makes, amends or revokes water market rules;

and

(b) the rules do not reflect the advice that the ACCC gave the

Minister under subsection (2) in relation to the rules, or the

amendments or revocations;

Schedule 1 A mendments based on referrals of power

28 Water Amendment Bill 2008 No. , 2008

the Minister must, when the rules, amendments or revocations are

laid before a House of the Parliament under the Legislative

Instruments Act 2003, also lay before that House a document that

sets out:

do not reflect the advice given by the ACCC; and

(d) the Ministers reasons for departing from that advice.

99 ACCC to monitor transformation arrangements and compliance

(1) The ACCC is to monitor:

(a) transformation arrangements; and

(b) compliance with the water market rules.

(2) The ACCC must give the Minister a report on the results of such

monitoring.

(3) The reports under subsection (2) must be given to the Minister in

accordance with an agreement between the Minister and the

ACCC.

100 Transitional provisions relating to wate r market rules

(1) A request that the Minister made to the ACCC before the

commencement of this section, under subsection 98(1) as in force

before that commencement, is taken after that commencement to

be a request that the Minister made under that subsection as in

force after that commencement.

(2) Regulations made before the commencement of this section for the

purposes of subsection 98(4) or (5) as in force before that

commencement continue in force after that commencement as if

they were made for the purposes of that subsection as in force after

that commencement.

Division 3--Miscellaneous

100A Functions and powe rs of the ACCC

The ACCC has, for the purposes of this Part:

(a) the functions and powers conferred on it under Part 8 as an

appropriate enforcement agency; and

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 29

(b) the functions and powers conferred on it under section 155 of

the Trade Practices Act 1974.

4 Before Part 5

Insert:

Part 4A--Extended operation of Basin water

charge and water market rules

100B Extended operation of Basin water charge rules

(1) Water charge rules, and Division 1 of Part 4, apply in relation to all

of the water resources in a referring State, or part of a referring

State, that are not Basin water resources if:

(a) a law of the State provides that this section applies to the

State, or that part of the State; and

(b) the regulations provide that this section applies to the State,

or that part of the State.

(2) Water charge rules, and Division 1 of Part 4, apply in relation to all

of the water resources in the Northern Territory, or part of the

Territory, if:

(a) a law of the Northern Territory provides that this section

applies to the Territory, or that part of the Territory; and

(b) the regulations provide that this section applies to the

Northern Territory, or that part of the Territory.

(3) However, water charge rules, and Division 1 of Part 4, do not

apply in relation to:

(a) water resources that are prescribed by the regulations for the

purposes of this paragraph; and

(b) urban water supply activities beyond the point at which the

water has been removed from a water resource in the

referring State, or the Northern Territory.

(4) This section has effect despite subsection 91(2).

(5) This section does not affect the operation of Part 4 in relation to

Basin water resources.

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30 Water Amendment Bill 2008 No. , 2008

100C Extende d ope ration of Basin water market rules

(1) Water market rules, and Division 2 of Part 4, apply in relation to

all the non-Basin water access entitlements in a referring State, or

in a particular area of a referring State, if:

(a) a law of the State provides that this section applies in relation

to the non-Basin water access entitlements in the State, or in

that area of the State; and

(b) the regulations provide that this section applies in relation to

the non-Basin water access entitlements in the State, or in

that area of the State.

(2) Water market rules, and Division 2 of Part 4, apply in relation to

all the non-Basin water access entitlements in the Northern

Territory, or in a particular area of the Northern Territory if:

(a) a law of the Northern Territory provides that this section

applies in relation to the non-Basin water access entitlements

in the Territory, or in that area of the Territory; and

(b) the regulations provide that this section applies in relation to

the non-Basin water access entitlements in the Territory, or in

that area of the Territory.

(3) However, water market rules, and Division 2 of Part 4, do not

apply in relation to non-Basin water access entitlements that are

prescribed by the regulations for the purposes of this subsection.

(4) Water market rules, and Division 2 of Part 4, apply for the

purposes of this section as if non-Basin water access entitlements

were water access entitlements.

(5) A non-Basin water access entitlement is a perpetual or ongoing

entitlement, by or under a law of a State or Territory, to exclusive

access to a share of the water resources of an area in the State or

Territory that are not Basin water resources.

(6) This section does not affect the operation of Part 4 in relation to

Basin water resources.

100D Functions and powe rs of the ACCC

The ACCC has, for the purposes of this Part:

(a) the functions and powers conferred on it under Part 8 as an

appropriate enforcement agency; and

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Water Amendment Bill 2008 No. , 2008 31

(b) the functions and powers conferred on it under section 155 of

the Trade Practices Act 1974.

5 After Part 10

Insert:

Part 10A--Transitional matters relating to the

Murray-Darling Basin Commission

Division 1--Preliminary

239A Definitions

In this Act:

former MDB Agreement has the same meaning as Agreement had

in the Murray-Darling Basin Act 1993 immediately before the

commencement of Schedule 2 to the Water Amendment Act 2008,

including all of the changes to that agreement that the former

Murray-Darling Basin Ministerial Council had agreed to before the

commencement of that Schedule.

former Murray-Darling Basin Ministerial Council has the same

meaning as Murray-Darling Basin Ministerial Council had in this

Act immediately before the commencement of Schedule 2 to the

Water Amendment Act 2008.

Murray-Darling Basin Commission has the same meaning as

Commission had in the Murray-Darling Basin Act 1993

immediately before the commencement of Schedule 2 to the Water

Amendment Act 2008.

239B Application of this Part

This Part applies if each of the Basin States (other than the

Australian Capital Territory) is a referring State.

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32 Water Amendment Bill 2008 No. , 2008

Division 2--Assets, liabilities and legal proceedings

239C Vesting of assets of Murray-Darling Basin Commission

(1) On the commencement of this Part, the transitional assets of the

Murray-Darling Basin Commission immediately before that

commencement:

(a) cease to be assets of the Murray-Darling Basin Commission;

and

(b) become assets of the Authority without any conveyance,

transfer or assignment.

(2) The Authority becomes the successor in law in relation to the

transitional assets.

(3) A transitional asset is:

(a) any legal or equitable estate or interest in real or personal

property, whether actual, contingent or prospective; or

(b) any right, power, privilege or immunity, whether actual,

contingent or prospective;

but does not include a right, power, privilege or immunity

conferred by:

(d) regulations or other subordinate legislation made under an

Act; or

(e) the Murray-Darling Basin Act 1992 of New South Wales; or

(f) the Murray-Darling Basin Act 1993 of Victoria; or

(g) the Murray-Darling Basin Act 1996 of Queensland; or

(h) the Murray-Darling Basin Act 1993 of South Australia; or

(i) the former MDB Agreement.

239D River Murray Ope rations assets unaffected

(1) This Part does not affect:

(a) the ownership or control of River Murray Operations assets;

(b) the application of the Agreement in relation to River Murray

Operations assets.

(2) River Murray Operations assets are:

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 33

(a) the works set out in Schedule A to the former MDB

Agreement; and

(b) any other works the construction of which was authorised

under subclause 50(1) of the former MDB Agreement

(including any works authorised under Schedule C to the

former MDB Agreement); and

Murray-Darling Basin Commission under subclause 73(1) of

the former MDB Agreement.

Note:

The Agreement provides for how these assets are to be dealt with

(including in accordance with directions given by the Authority).

239E Living Murray Initiative assets unaffected

(1) This Part does not affect:

(a) the ownership or control of Living Murray Initiative assets;

(b) the application of the Living Murray Initiative in relation to

Living Murray Initiative assets.

(2) Living Murray Initiative assets are:

(a) water access rights, water delivery rights, irrigation rights or

other similar rights relating to water; or

(b) interests in, or in relation to, such rights;

that are held by a person for the purposes of the Living Murray

Initiative, but do not include the legal title to such rights or

interests if the legal title was held by the Murray-Darling Basin

Commission in its own name immediately before the

commencement of this Part.

239F Vesting of liabilities of Murray-Darling Basin Commission

(1) On the commencement of this Part, the transitional liabilities of the

Murray-Darling Basin Commission immediately before that

commencement:

(a) cease to be liabilities of the Murray-Darling Basin

Commission; and

(b) become liabilities of the Authority without any conveyance,

transfer or assignment.

Schedule 1 A mendments based on referrals of power

34 Water Amendment Bill 2008 No. , 2008

(2) The Authority becomes the successor in law in relation to the

transitional liabilities.

(3) A transitional liability is any liability, duty or obligation, whether

actual, contingent or prospective, but does not include a liability,

duty or obligation imposed by:

(a) an Act; or

(b) regulations or other subordinate legislation made under an

Act; or

(d) the Murray-Darling Basin Act 1993 of Victoria; or

(e) the Murray-Darling Basin Act 1996 of Queensland; or

(f) the Murray-Darling Basin Act 1993 of South Australia; or

(g) the former MDB Agreement.

(4) To avoid doubt, this section does not apply to liabilities that relate

to River Murray Operations assets or Living Murray Initiative

assets, except to the extent that they are liabilities of the

Murray-Darling Basin Commission immediately before the

commencement of this Part.

Note:

The Agreement provides for the Basin States to indemnify the

Authority for liabilities that were, before the commencement of this

Part, liabilities of the Murray-Darling Basin Commission relating to

River Murray Operations assets.

239G Certificates relating to vesting of land etc.

(1) This section applies if:

(a) any legal or equitable estate or interest in real property,

whether actual, contingent or prospective (a real property

asset), vests in the Authority under this Part; and

(b) there is lodged, with the Registrar of Titles or other proper

officer of the State or Territory in which the real property

asset is situated, a certificate that:

(i) is signed by the Minister; and

(ii) identifies the real property asset, whether by reference

to a map or otherwise; and

(iii) states that the real property asset has become vested in

the Authority under this Part.

(2) The Registrar of Titles or other officer may:

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 35

(a) register the matter in a way that is the same as, or similar to,

the way in which dealings in real property assets of that kind

are registered; and

(b) deal with, and give effect to, the certificate.

(3) A certificate made under paragraph (1)(b) is not a legislative

instrument.

239H Certificates relating to vesting of assets other than land etc.

(1) This section applies if:

(a) any transitional asset other than a real property asset vests in

the Authority under this Part; and

(b) there is lodged, with the person or authority who, under a law

of the Commonwealth, a State or a Territory, under a trust

instrument or otherwise, has responsibility for keeping a

certificate that:

(i) is signed by the Minister; and

(ii) identifies the transitional asset; and

(iii) states that the transitional asset has become vested in the

Authority under this Part.

(2) The person or authority may:

(a) deal with, and give effect to, the certificate as if it were a

proper and appropriate instrument for transactions in relation

to assets of that kind; and

(b) make such entries in the register as are necessary having

regard to the effect of this Part.

(3) A certificate made under paragraph (1)(b) is not a legislative

instrument.

239J Substitution of Authority as a party to pending proceedings

(1) If any proceedings to which:

(a) the Murray-Darling Basin Commission; or

(b) a person in the persons capacity as the President or a

Commissioner;

was a party were pending in any court or tribunal immediately

before the commencement of this Part, from that commencement

Schedule 1 A mendments based on referrals of power

36 Water Amendment Bill 2008 No. , 2008

the Authority is substituted for the Murray-Darling Basin

Commission or the person as a party to the proceedings.

(2) The President is the person appointed in accordance with

subclause 20(1) of the former MDB Agreement, and includes a

Deputy President appointed under subclause 20(3) (in the capacity

of Deputy President or acting President).

(3) A Commissioner is a person appointed in accordance with

subclause 20(2) of the former MDB Agreement, and includes a

Deputy Commissioner appointed under that subclause.

Note:

The Agreement provides for the Basin States to indemnify the

Authority for a share of the costs associated with, or arising from,

proceedings covered by this section.

239K Rights to sue President or Commissioner become rights to sue

Authority

If a right to sue a person, in the persons capacity as the President

or a Commissioner, existed immediately before the commencement

of this Part, but had not been exercised, from that commencement

the right to sue:

(a) ceases to be a right to sue the person; and

(b) becomes a right to sue the Authority.

Note:

The Agreement provides for the Basin States to indemnify the

Authority for a share of the costs associated with rights covered by

this section.

239L President's or Commissioner's rights to sue become rights of

Authority

If a persons right to sue, in the persons capacity as the President

or a Commissioner, existed immediately before the commencement

of this Part, but had not been exercised, from that commencement

the right to sue:

(a) ceases to be a right of the person; and

(b) becomes a right of the Authority.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 37

239M Transfer of custody of Murray-Darling Basin Commission

records

(1) On the commencement of this Part, each record or document that

was in the custody of the Murray-Darling Basin Commission

immediately before that commencement is to be transferred into

the custody of the Authority.

(2) If, immediately before the commencement of this Part, the

Murray-Darling Basin Commission owed a duty of confidence to a

person in relation to a record or document transferred under this

section, the Authority owes the same duty of confidence to the

person after the transfer.

Division 3--Effect on instruments and things done

239N References in certain instruments to Murray-Darling Basin

Commission etc.

(1) If a transitional instrument is one or more of the following:

(a) an instrument that was made by the Murray-Darling Basin

Commission;

(b) an instrument to which the Murray-Darling Basin

Commission was a party;

Murray-Darling Basin Commission;

(d) an instrument under which any right or liability accrues or

may accrue to the Murray-Darling Basin Commission;

(e) any other instrument in which a reference is made to the

Murray-Darling Basin Commission;

it continues to have effect from the commencement of this Part as

if:

(f) references in the transitional instrument to the

Murray-Darling Basin Commission (however described)

were references to the Authority; and

(g) references in the transitional instrument to the former

Murray-Darling Basin Ministerial Council (however

described) were references to the Murray-Darling Basin

Ministerial Council; and

(h) references in the transitional instrument to the contracting

governments under the former MDB Agreement (however

Schedule 1 A mendments based on referrals of power

38 Water Amendment Bill 2008 No. , 2008

described) were references to the contracting governments

under the Agreement; and

(i) in the case of a protocol made under a Schedule to the former

MDB Agreement:

(i) references in the protocol to the former MDB

Agreement were references to the Agreement; and

(ii) references in the protocol to provisions of, or Schedules

to, the former MDB Agreement were references to the

corresponding provisions of, or Schedules to, the

Agreement; and

(iii) references in the protocol to other protocols made under

Schedules to the former MDB Agreement were

references to the corresponding protocols made under

Schedules to the Agreement.

(2) However, subsection (1) does not apply to a transitional instrument

specified in the regulations.

(3) If the regulations specify a transitional instrument for the purposes

of subsection (2), the regulations may also provide one or more of

the following:

(a) that the transitional instrument has effect as if references in

the transitional instrument to the Murray-Darling Basin

Commission (however described) were references as

specified in the regulations;

(b) that the transitional instrument has effect as if references in

the transitional instrument to the former Murray-Darling

Basin Ministerial Council (however described) were

references as specified in the regulations;

the transitional instrument to the contracting governments

(however described) were references as specified in the

regulations;

(d) in the case of a protocol made under a Schedule to the former

MDB Agreement--that the transitional instrument has effect

as if references to one or more of the following:

(i) the former MDB Agreement;

(ii) provisions of, or Schedules to, the former MDB

Agreement;

(iii) other protocols made under Schedules to the former

MDB Agreement;

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 39

were references as specified in the regulations.

(4) A transitional instrument is:

(a) an instrument of a legislative character; or

(b) an instrument of an administrative character (including a

resolution made by the Murray-Darling Basin Commission);

that was in force immediately before the commencement of this

Part, but does not include an Act, a State Act or an Act of a

Territory.

239P Things done by, or in relation to, the Murray-Darling Basin

Commission etc. under Acts and instruments

(1) If, before the commencement of this Part, a thing was done by or in

relation to the Murray-Darling Basin Commission, or a committee

of the Murray-Darling Basin Commission, under:

(a) a provision (the authorising provision) of an Act, other than

a provision of the MDB Act; or

(b) a provision (the authorising provision) of an instrument

made under a provision of an Act, other than a provision of

the MDB Act;

then the thing done has effect from that commencement as if it had

been done by or in relation to the Authority, or the corresponding

committee of the Authority, under the authorising provision as in

force from that commencement.

(2) However, if the thing done is included in a class of things specified

in the regulations, it has effect from that commencement as if it

had been done by or in relation to the person or body specified in

the regulations under the authorising provision as in force from that

commencement.

(3) This section does not change the time at which the thing was

actually done.

(4) The regulations may:

(a) provide that this section does not apply to a specified class of

things done; or

(b) clarify how a thing has effect as mentioned in subsection (1)

or (2).

Schedule 1 A mendments based on referrals of power

40 Water Amendment Bill 2008 No. , 2008

239Q Things done under the forme r MDB Agreement

(1) If:

(a) a thing was done before the commencement of this Part

under a provision of the former MDB Agreement, by or in

relation to, or pursuant to a resolution of, a body or person;

and

(b) the thing still had effect immediately before that

commencement; and

(i) a provision of the Agreement to be the corresponding

provision to the provision referred to in paragraph (a);

and

(ii) in relation to that corresponding provision, a body or

person to be the corresponding body or person to the

body or person referred to in that paragraph;

the thing done has effect from that commencement as if it had been

done under the corresponding provision by or in relation to, or

pursuant to a resolution of, the corresponding body or person.

(2) Regulations made for the purposes of paragraph (1)(c):

(a) may specify:

(i) a part of a provision of the Agreement to be the

corresponding provision to a provision referred to in

paragraph (1)(a); or

(ii) a provision of the Agreement, or a part of a provision of

the Agreement, to be the corresponding provision to a

part of a provision referred to in paragraph (1)(a); and

(b) may specify different corresponding bodies or persons in

relation to different parts of a provision of the Agreement.

This subsection may be applied in relation to the different ways in

which a provision can operate as if each of those ways were a

different part of the provision.

(3) If:

(a) a thing was done before the commencement of this Part

under a provision of the former MDB Agreement, by or in

relation to, or pursuant to a resolution of, the Murray-Darling

Basin Commission; and

(b) the thing still had effect immediately before that

commencement; and

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 41

Agreement; and

(d) subsection (1) does not apply;

the thing done has effect from that commencement as if it had been

done under the corresponding provision by or in relation to, or

pursuant to a resolution of, the Authority.

(4) However, subsection (3) does not apply to a thing specified in the

regulations.

(5) The application of subsection (1), (2) or (3) to the making of an

instrument is not taken, for the purposes of the Legislative

Instruments Act 2003, to constitute the making of a legislative

instrument by:

(a) in the case of subsection (1) or (2)--the corresponding body

or person referred to in that subsection; or

(b) in the case of subsection (3)--the Authority.

(6) This section applies to protocols to the former MDB Agreement as

if they were provisions of the former MDB Agreement, and applies

to protocols to the Agreement as if they were provisions of the

Agreement.

239R Continuation of committees established by Murray-Darling

Basin Commission

If:

(a) the Murray-Darling Basin Commission established a

committee before the commencement of this Part; and

(b) the committee was in existence immediately before that

commencement;

the committee continues in existence after that commencement as

if the Authority had, on that commencement, established it under

section 203 and appointed its members under section 204.

239S Continuation of Murray-Darling Basin Commission's

corporate plan

(1) For the purposes of this Act and the Agreement, the corporate plan

of the Murray-Darling Basin Commission in force immediately

before the commencement of this Part (the Commission's

corporate plan) is taken, from that commencement:

Schedule 1 A mendments based on referrals of power

42 Water Amendment Bill 2008 No. , 2008

(a) to be a corporate plan approved by the Murray-Darling Basin

Ministerial Council under clause 34 of the Agreement; and

(b) to be included, under paragraph 213A(3)(a), in any corporate

plan of the Authority that was in force immediately before

that commencement.

(2) The Authority must, as soon as practicable after that

commencement:

(a) review the Commissions corporate plan; and

(b) if the Authority considers it necessary or desirable for there

to be a significant variation to the plan--prepare a draft

amendment, and provide it to the Basin Officials Committee,

in accordance with the Agreement.

Division 4--Financial matters

239T Financial matters

(1) The following amounts (the transitional amounts) must be

credited to the Murray-Darling Basin Special Account:

(a) amounts that, immediately before the commencement of this

Part, are in bank accounts referred to in subclause 79(1) of

the former MDB Agreement;

(b) all other amounts in the Murray-Darling Basin Commissions

possession, custody or control immediately before that

commencement.

(2) If:

(a) under an arrangement (other than the former MDB

Agreement), a State paid the Murray-Darling Basin

Commission an amount for the purposes of the performance

of the Murray-Darling Basin Commissions functions; and

(b) all or part of that amount is a transitional amount;

then:

functions of the Authority include those functions of the

Murray-Darling Basin Commission; and

(d) the Authority must spend the transitional amount in

accordance with that arrangement and not otherwise.

(3) Sections 210 and 211 have effect subject to this section.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 43

Division 5--Miscellaneous

239U Exe mption from stamp duty and other State or Territory taxes

(1) No stamp duty or other tax is payable under a law of a State or a

Territory in respect of either of the following matters (exempt

matters):

(a) the vesting of a transitional asset or transitional liability

under this Part;

(b) the operation of this Part in any other respect;

or anything connected with an exempt matter.

(2) The Minister may certify in writing:

(a) that a specified matter is an exempt matter; or

(b) that a specified thing is connected with a specified exempt

matter.

(3) A certificate made under subsection (2) is not a legislative

instrument.

(4) The Minister may, by legislative instrument, certify in writing:

(a) that matters included in a specified class are exempt matters;

(b) that things included in a specified class are connected with

exempt matters included in a specified class.

(5) In all courts, and for all purposes (other than for the purposes of

criminal proceedings), a certificate under subsection (2) or (4) is

prima facie evidence of the matters stated in the certificate.

239V Certificates taken to be authentic

A document that appears to be a certificate made or issued under a

particular provision of this Part:

(a) is taken to be such a certificate; and

(b) is taken to have been properly made or issued;

unless the contrary is established.

Schedule 1 A mendments based on referrals of power

44 Water Amendment Bill 2008 No. , 2008

239W Regulations

(1) The regulations may provide for other transitional measures

relating to the replacement of:

(a) the Murray-Darling Basin Commission; or

(b) the former MDB Agreement; or

(2) Without limiting subsection (1), regulations under that subsection

may provide for powers of the Murray-Darling Basin Commission

or the former Murray-Darling Basin Ministerial Council:

(a) that were exercisable under the former MDB Agreement; and

(b) that are not otherwise provided for in this Act;

to be exercised by the Authority, the Basin Officials Committee or

the Murray-Darling Basin Ministerial Council.

(3) Without limiting subsection (1), regulations under that subsection

may provide for the ownership or control of weir no.5 Redbank

and weir no.7 Maude.

(4) Regulations made for the purposes of subsection (3) have effect

despite section 239D.

6 After Part 11

Insert:

Part 11A--Interactions with State laws

250A Meaning of Commonwealth water legislation

In this Act:

Commonwealth water legislation means this Act, the regulations

or any other instrument made under this Act.

250B Concurrent operation intended

(1) The Commonwealth water legislation is not intended to exclude or

limit the concurrent operation of any law of a State.

(2) If:

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 45

(a) an act or omission of a person is both an offence against the

Commonwealth water legislation and an offence against the

law of a State; and

(b) the person is convicted of either of those offences;

the person is not liable to be convicted of the other of those

offences.

(3) This section does not apply to a law of a State if there is a direct

inconsistency between the Commonwealth water legislation and

that law of a State.

Note:

Section 250D avoids direct inconsistency arising in some cases by

limiting the operation of the Commonwealth water legislation.

250C Commonwealth water legislation does not apply to matters

declared by law of referring State to be excluded matters

(1) Subsection (2) applies if a provision of a law of a referring State

declares a matter to be an excluded matter for the purposes of this

section in relation to:

(a) the whole of the Commonwealth water legislation; or

(b) a specified provision of the Commonwealth water legislation;

provision; or

(d) the Commonwealth water legislation otherwise than to a

specified extent.

(2) By force of this subsection:

(a) none of the provisions of the Commonwealth water

legislation (other than this section) applies in or in relation to

the State with respect to the matter if the declaration is one to

which paragraph (1)(a) applies; and

(b) the specified provision of the Commonwealth water

legislation does not apply in or in relation to the State with

respect to the matter if the declaration is one to which

paragraph (1)(b) applies; and

than this section and the specified provisions) do not apply in

or in relation to the State with respect to the matter if the

declaration is one to which paragraph (1)(c) applies; and

Schedule 1 A mendments based on referrals of power

46 Water Amendment Bill 2008 No. , 2008

(d) the provisions of the Commonwealth water legislation (other

than this section and otherwise than to the specified extent)

do not apply in or in relation to the State with respect to the

matter if the declaration is one to which paragraph (1)(d)

applies.

(3) Subsection (2) does not apply to the declaration to the extent to

which the regulations provide that that subsection does not apply to

that declaration.

(4) In this section:

matter includes act, omission, body, person or thing.

250D Avoiding direct inconsistency arising between the

Commonwealth wate r legislation and laws of referring

States

Section overrides other provisions of the Commonwealth water

legislation

(1) This section has effect despite anything else in the Commonwealth

water legislation.

Section does not deal with provisions capable of concurrent

operation

(2) This section does not apply to a provision of a law of a referring

State that is capable of concurrent operation with the

Commonwealth water legislation.

Note:

This kind of provision is dealt with by section 250B.

When this section applies to a provision of a State law

(3) This section applies to the interaction between a provision (the

State provision) of a law of a referring State and a provision (the

Commonwealth provision) of the Commonwealth water legislation

only if the State provision is declared by a law of the State to be a

Commonwealth water legislation displacement provision for the

purposes of this section (either generally or specifically in relation

to the Commonwealth provision).

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Water Amendment Bill 2008 No. , 2008 47

State provision specifically permitting, authorising or requiring act

or thing to be done

(4) The Commonwealth provision does not:

(a) prohibit the doing of an act; or

(b) impose a liability (whether civil or criminal) for doing an act;

if the State provision specifically permits, authorises or requires the

doing of that act.

Other cases

(5) The Commonwealth provision does not operate in or in relation to

the State to the extent necessary to ensure that no inconsistency

arises between:

(a) the Commonwealth provision; and

(b) the State provision to the extent to which the State provision

would, but for this subsection, be inconsistent with the

Commonwealth provision.

Note 1:

The State provision is not covered by this subsection if subsection (4)

applies to the State provision: if that subsection applies there would be

no potential inconsistency to be dealt with by this subsection.

Note 2:

The operation of the State provision will be supported by

section 250B to the extent to which it can operate concurrently with

the Commonwealth provision.

(6) Subsections (4) and (5) do not apply in relation to the State

provision to the extent to which the regulations provide that those

subsections do not apply in relation to the State provision.

250E Regulations may modify operation of the Commonwealth

water legislation to deal with interaction between that

legislation and laws of referring States

(1) The regulations may modify the operation of the Commonwealth

water legislation so that:

(a) provisions of the Commonwealth water legislation do not

apply to a matter that is dealt with by a law of a referring

State specified in the regulations; or

(b) no inconsistency arises between the operation of a provision

of the Commonwealth water legislation and the operation of

a provision of a law of a referring State specified in the

regulations.

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48 Water Amendment Bill 2008 No. , 2008

(2) Without limiting subsection (1), regulations made for the purposes

of that subsection may provide that a provision of the

Commonwealth water legislation:

(a) does not apply to:

(i) a person specified in the regulations; or

(ii) a body specified in the regulations; or

(iii) circumstances specified in the regulations; or

(iv) a person or body specified in the regulations in the

circumstances specified in the regulations; or

(b) does not prohibit an act to the extent to which the prohibition

would otherwise give rise to an inconsistency with a law of a

referring State; or

the requirement would otherwise give rise to an

inconsistency with a law of a referring State; or

(d) does not authorise a person to do an act to the extent to which

the conferral of that authority on the person would otherwise

give rise to an inconsistency with a law of a referring State;

(e) does not impose an obligation on a person to the extent to

which complying with that obligation would require the

person not to comply with an obligation imposed on the

person under a law of a referring State; or

(f) authorises a person to do something for the purposes of the

Commonwealth water legislation that the person:

(i) is authorised to do under a law of a referring State; and

(ii) would not otherwise be authorised to do under the

Commonwealth water legislation; or

(g) will be taken to be satisfied if a law of a referring State is

satisfied.

(3) In this section:

matter includes act, omission, body, person or thing.

7 Before Schedule 2

Insert:

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 49

Schedule 1--The Murray-Darling Basin

Agreement

Note:

See section 18A.

MURRAY-DARLING BASIN

AGREEMENT

Table of Contents

PART I - INTERPRETATION

Purpose

Definitions

Interpretation

PART II -- APPROVAL, AMENDMENT AND ENFORCEMENT

Revocation of Former Agreement

Commencement of Agreement and Amendments to

Agreement

Parties to Provide for Enforcement of Agreement

PART III - THE MINISTERIAL COUNCIL

Establishment of Ministerial Council

Membership of the Ministerial Council

Functions of the Ministerial Council

10.

Ministerial Council May Direct Committee

11.

Conferral of functions by Ministerial Council

12.

Ministerial Council May Require Committee and

Authority to Report

13.

Proceedings of the Ministerial Council

14.

Resolutions Other than at Meetings

15.

Appointment of Committees

16.

Basin Community Committee to Advise Ministerial

Council

PART IV -- THE COMMITTEE

DIVISION 1 -- ESTABLISHMENT AND MEMBERSHIP OF THE

COMMITTEE

Schedule 1 A mendments based on referrals of power

50 Water Amendment Bill 2008 No. , 2008

17.

Establishment of Basin Officials Committee

18.

Membership of the Committee

19.

Appointment of Chair of the Committee

20.

Appointment of Other Members of the Committee

21.

Acting Members of the Committee

22.

Period of Appointment

23.

Standing Obligation to Disclose Interests

24.

Obligation to Disclose Interests Before Considering a

Particular Matter

25.

Chief Executive and Authority Chair May Attend

Meetings

DIVISION 2 -- FUNCTIONS AND POWERS OF THE

COMMITTEE

26.

Functions and Powers of the Committee

DIVISION 3 -- DECISION MAKING BY THE COMMITTEE

27.

Proceedings of the Committee

28.

Resolutions Other than at Meetings

PART V - THE AUTHORITY

29.

Functions, Powers and Duties of the Authority

30.

Authoritys Functions in Relation to River Operations

31.

Objectives and outcomes for river operations

32.

Continuation of Resolutions, Practices and Procedures

Relating to River Operations

33.

Referrals and Determinations in Relation to River

Operations

34.

Annual Corporate Plan

35.

Amendment of Annual Corporate Plan

PART VI -- APPLICATION OF AGREEMENT TO QUEENSLAND

AND THE AUSTRALIAN CAPITAL TERRITORY

36.

Application of Agreement to Queensland and the

Australian Capital

37.

Provisions Not Applying to Queensland

38.

Provisions not applying to the Australian Capital Territory

39.

Powers of Ministerial Council and Committee to make

determinations

40.

Factors to be Considered by Ministerial Council or

Committee

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 51

41.

Application of Previous Ministerial Council Decisions to

Queensland

42.

Application of previous Ministerial Council decisions to

the Australian Capital Territory

PART VII - INVESTIGATION, MEASUREMENT AND

MONITORING

43.

Investigations and Studies

44.

Monitoring

45.

Measurements of Water Quantity and Quality

46.

Need for Approval in Certain Cases

47.

Power to Arrange Data in Lieu

48.

Water Quality Objectives

49.

Authority to be Informed of New Proposals

50.

Environmental Assessment

51.

Protection of Catchment of Hume Reservoir

PART VIII - CONSTRUCTION, OPERATION AND MAINTENANCE

OF WORKS

52.

Works and Measures Subject to the Agreement

53.

Asset Management Plan

54.

Control and Management of RMO assets

55.

Asset Agreement

56.

Authorisation of Further Works or Measures

57.

Ancillary, Preventative and Remedial Works

58.

Preparation and Submission of Designs etc of Works for

Authority Approval.

59.

Submission of Details of Measures for Authority Approval

60.

Authority Approval of Certain Tenders

61.

Directions for the Efficient Construction etc of Works

62.

States to Facilitate Construction and Operation Within

Their Territories

63.

Works for Benefit of State Contracting Governments

64.

Declaration that Works or Measures are Effective

65.

Maintenance of Works

Commonwealth of Australia Bills

WATER AMENDMENT BILL 2008