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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
EMERGENCY WATER (MURRAY-DARLING BASIN RESCUE) BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator N Xenophon)
EMERGENCY WATER (MURRAY-DARLING BASIN RESCUE) BILL 2008
1. Background
The purpose of this bill is to ensure the environmental and economic
sustainability of the Murray-Darling Basin by empowering the Minister
and the Murray-Darling Basin Authority (the Authority) to establish an
Interim Basin Plan as an emergency measure, until such time that a
Basin Plan is adopted under the Water Act 2007. In so doing, the
Minister is empowered to make decisions about how best to allocate
water for system maintenance, to the environment, to water users and
holders of a water access entitlement of a water access right, and to
share, manage and allocate the Basin water resources as well as manage
all processes that may adversely affect them.
2. Commencement
This Act commences on the day on which it receives the Royal Assent.
3. Objects
The objects of the Act are to empower the Minister and the Authority
to address the current crisis affecting the Murray-Darling Basin as an
emergency measure as outlined above.
4. Interpretation
Clause 4 refers the interpretation of words in this bill back to the
Water Act 2007.
5. Schedule(s)
Clause 5 provides for schedules amending existing legislation (see
Schedule 1 below).
6. Powers of Minister in relation to management of Basin Water Resources
Clause 6 provides the Minister with the powers required to determine
whether an Interim Basin Plan is required as an emergency measure to
apply until such time that he or she approves a Basin Plan consistent
with the Water Act 2007.
7. Where the Minister has determined that such a plan is required, clause
7 of the bill empowers the Minister to direct the Authority to prepare
an Interim Basin Plan. It provides that where such a direction is
given, the Authority must prepare an Interim Basin Plan within 30 days
of that direction. An Interim Basin Plan prepared by the Authority
must include any determination made by the Minister under clause 9, 10
or 11 of the bill.
8. Approval of Interim Basin Plan
Clause 8 empowers the Minister to approve an Interim Basin Plan
prepared by the Authority either in its original form or in an amended
form. It also empowers the Minister to approve an alternative Interim
Basin Plan. Where the Minister amends the Authority's Interim Basin
Plan or prepares an alternative Interim Basin Plan, he or she must
consult the Authority. In these circumstances, the Minister is also
required to table an explanation of the reason(s) why he or she did
not approve the Interim Basin Plan in its original form.
9. Matters that may be determined by the Minister
Clause 9 provides matters that the Minister may determine in order to
give effect to an Interim Basin Plan. It also requires the Minister
to have regard to matters set out in clause 12 when making a
determination.
10. Sharing Regime
Clause 10 relates to the allocation of water for essential system
maintenance after an Interim Basin Plan is approved. The purpose of
this clause is to ensure that, in making a determination pursuant to
subsection 9(1), the Minister determines the share of water that is
needed to maintain essential system functions and to maintain water
quality, the share of the remaining non-flood water to which a Basin
State is entitled and the share, if any, to be granted to the
environment as a clearly identifiable and inalienable entitlement to a
water allocation in the water resource plan area. One of the effects
of this clause is to treat the Basin States and the environment as
separate and distinct shareholders of Basin water resources.
11. Activities inconsistent with international agreements
Clause 11 enables the Minister to determine that certain activities
are inconsistent with relevant international agreements as defined in
the Water Act 2007.
12. Matters to which Minister must have regard when making a determination
Clause 12 provides matters to which the Minister must have regard when
making a determination under the bill. These include, the principles
set out in the National Water Initiative, critical human needs,
environmental needs and obligations including international
obligations, community needs, efficient market processes, maintaining
permanent plantings, relevant international agreements, the effects of
adverse climate change and the need for any adjustment burden to be
shared equitably across the Murray-Darling Basin, the need for
economically efficient water use and investment, other benefits
available to particular users of the Basin water resources, the need
to prevent activities that contribute to the improper use, storage and
diversion of water and any other matter which the Minister considers
necessary.
13. Constitution of Authority for the purposes of implementing the bill
Clause 13 sets out the constitution of the Authority for the purposes
of implementing the bill. In addition to a Chair and 4 other members,
the Authority is to include a Chief Executive Officer, and that
position is provided for in Schedule 1 of the bill.
Clause 13 also enables the Chair and members of the Authority (who may
otherwise be appointed on a part-time basis under the Water Act 2007),
to be appointed on a full-time basis for the purposes of developing
and implementing an Interim Basin Plan.
14. Powers of Authority in relation to implementation, compliance and
enforcement of Interim Basin Plan
Clause 14 sets out that the Authority is responsible for implementing
an Interim Basin Plan as approved by the Minister. Further, it
provides that for the purposes of investigating compliance with and
enforcing an Interim Basin Plan, the Authority is to have the same
enforcement powers as it has under the Water Act 2007 and the same
enforcement powers as the ACCC and the Minister under the Water Act
2007, except to the extent of any inconsistency.
15. Trade and Commerce
Clause 15 provides that no natural person or agency of a State may
limit or impede the transfer or sale and purchase of water access
entitlements, water access rights and water allocations among Basin
States.
16. Inconsistent State or Territory actions
Clause 16 proscribes States and Territories from acting in a manner
inconsistent with an Interim Basin Plan or a determination made in
accordance with the provisions of the bill.
17. Activities by constitutional corporations
Clause 17 outlines activities which constitutional corporations, their
employees and agents are prohibited from undertaking without the
consent of the Minister. Those activities all relate to impeding the
flow of water from the Murray-Darling Basin or taking part in any
activity that diverts or significantly intercepts water from the
system.
18. Acquisition of property
Clause 18 empowers the Minister to acquire a proportion or all of a
water access entitlement and water access right in a water resource
plan area or, any land associated with an acquired water access
entitlement or an acquired water access right if appropriate, for the
purposes of maintaining the reliability of water access entitlements
and water access rights or returning water use to sustainable limits.
19. Declaration of taxation schemes detrimental to management of Basin
water resources
Clause 19 deals with taxation schemes that are detrimental to the
management of Basin water resources. It provides that the ACCC must
inquire into the effects of arrangements in the Income Tax Assessment
Act 1997 on the water market and into the nature of irrigation
practice and investment and provide advice to the Minister based on
the outcome of the inquiry. Where the Minister determines that a
taxation scheme is detrimental to the management of the Basin water
resources, he or she is required to cause a copy of that determination
to be provided to the Treasurer who, in turn, is required to prepare a
response to the determination which must be laid before both Houses of
Parliament within a specified timeframe.
20. Failure to comply with Interim Basin Plan made under this Act
Clause 20 stipulates the effects of failing to comply with a
determination made under the bill. It provides the Minister with the
power to assess the impact of the failure of any Basin State on other
shareholders and the quantitative effect of that failure to comply on
the Basin water resources and to reduce the Basin's State share in the
Basin water resources. Where the Basin State continues to fail to
comply with a determination, the Minister must apply for an injunction
against the Basin State in accordance with the Water Act 2007.
21. Inconsistent Commonwealth laws
Clause 21 provides that where a provision of the bill is inconsistent
with a provision of any other law of the Commonwealth, the relevant
provision of the bill prevails, and the other law is, to the extent of
the inconsistency, invalid.
22. Application of Legislative Instruments Act 2003
Clause 22 relates to the application of the Legislative Instruments
Act 2003.
23. Annual Reports by Minister
Clause 23 requires the Minister to prepare, and lay before each House
of the Parliament, an annual report on the operation of the bill.
24. Regulations
Clause 23 provides for the making of regulations.
Schedule 1
Schedule 1 amends the Water Act 2007, for the purposes of appointing a
Chief Executive Officer to the Authority. It sets out the duties of
the Chief Executive Officer as well as all other matters related to
his or her appointment.