1   Short title

                   This Act may be cited as the Water Act 2007 .

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3   Objects

                   The objects of this Act are:

                     (a)  to enable the Commonwealth, in conjunction with the Basin States, to manage the Basin water resources in the national interest; and

                     (b)  to give effect to relevant international agreements (to the extent to which those agreements are relevant to the use and management of the Basin water resources) and, in particular, to provide for special measures, in accordance with those agreements, to address the threats to the Basin water resources; and

                     (c)  in giving effect to those agreements, to promote the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes; and

                     (d)  without limiting paragraph (b) or (c):

                              (i)  to ensure the return to environmentally sustainable levels of extraction for water resources that are overallocated or overused; and

                             (ii)  to protect, restore and provide for the ecological values and ecosystem services of the Murray-Darling Basin (taking into account, in particular, the impact that the taking of water has on the watercourses, lakes, wetlands, ground water and water-dependent ecosystems that are part of the Basin water resources and on associated biodiversity); and

                            (iii)  subject to subparagraphs (i) and (ii)—to maximise the net economic returns to the Australian community from the use and management of the Basin water resources; and

                     (e)  to improve water security for all uses of Basin water resources; and

                      (f)  to ensure that the management of the Basin water resources takes into account the broader management of natural resources in the Murray-Darling Basin; and

                     (g)  to achieve efficient and cost effective water management and administrative practices in relation to Basin water resources; and

                     (h)  to provide for the collection, collation, analysis and dissemination of information about:

                              (i)  Australia’s water resources; and

                             (ii)  the use and management of water in Australia.

4   Definitions

             (1)  In this Act:

ACCC means the Australian Competition and Consumer Commission.

agency of the Commonwealth means:

                     (a)  a Minister of the Crown for the Commonwealth; or

                     (b)  a Department of State for the Commonwealth; or

                     (c)  a body (whether incorporated or not) established or appointed for a public purpose by or under a law of the Commonwealth; or

                     (d)  a body established, or appointed, by the Governor-General; or

                     (e)  a person holding or performing the duties of:

                              (i)  an office established by or under; or

                             (ii)  an appointment made under;

                            a law of the Commonwealth (other than the office of head of a Department of State for the Commonwealth (however described)); or

                      (f)  a person holding or performing the duties of an appointment that is made by the Governor-General (otherwise than under a law of the Commonwealth); or

                     (g)  a company in which the Commonwealth, or a body corporate referred to in paragraph (c) or (d), has a controlling interest.

agency of a State means:

                     (a)  a Minister of the Crown for the State; or

                     (b)  a Department of State for the State; or

                     (c)  a body (whether incorporated or not) established or appointed for a public purpose by or under a law of the State (including a local government body); or

                     (d)  a body established or appointed by:

                              (i)  a Governor of the State; or

                             (ii)  a Minister of the Crown for the State; or

                            (iii)  if the State is the Australian Capital Territory—the Australian Capital Territory Executive; or

                     (e)  a person holding or performing the duties of:

                              (i)  an office established by or under; or

                             (ii)  an appointment made under;

                            a law of the State (other than the office of head of a Department of State for the State (however described)); or

                      (f)  a person holding or performing the duties of an appointment that is made by:

                              (i)  a Governor of the State; or

                             (ii)  a Minister of the Crown for the State; or

                            (iii)  if the State is the Australian Capital Territory—the Australian Capital Territory Executive;

                            (otherwise than under a law of the State); or

                     (g)  a company in which the State, or a body corporate referred to in paragraph (c) or (d), has a controlling interest.

appropriate enforcement agency has the meaning given by section 137.

assist , in relation to an Authority delegate, means:

                     (a)  to perform functions in connection with the Authority delegate’s performance or exercise of a function or power delegated under section 199; or

                     (b)  to perform services for the Authority delegate in connection with the Authority delegate’s performance or exercise of a function or power delegated under section 199.

Australia , when used in a geographical sense, includes the external Territories.

authorised officer means an individual whose appointment by the Authority under section 217 is in force.

Authority means the Murray-Darling Basin Authority.

Authority Chair means the Chair of the Authority.

Authority delegate means a person to whom a function or power is delegated under section 199.

Authority member means a member of the Authority, and includes the Authority Chair.

Authority staff means the staff described in section 206.

Basin Community Committee means the committee established under section 202.

Basin Officials Committee means the committee established under section 201.

Basin Plan means the Basin Plan adopted by the Minister under section 44 (as amended from time to time).

Basin State means the following:

                     (a)  New South Wales;

                     (b)  Victoria;

                     (c)  Queensland;

                     (d)  South Australia;

                     (e)  the Australian Capital Territory.

Basin water market trading objectives and principles means the objectives and principles that are set out in Schedule 3.

Basin water resources means all water resources within, or beneath, the Murray-Darling Basin, but does not include:

                     (a)  water resources within, or beneath, the Murray-Darling Basin that are prescribed by the regulations for the purposes of this paragraph; or

                     (b)  ground water that forms part of the Great Artesian Basin.

biodiversity means the variability among living organisms from all sources (including terrestrial, marine and aquatic ecosystems and the ecological complexes of which they are a part) and includes:

                     (a)  diversity within species and between species; and

                     (b)  diversity of ecosystems.

Biodiversity Convention means the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992.

Note:          The text of the Convention is set out in Australian Treaty Series 1993 No. 32. In 2007, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).

Bonn Convention means the Convention on the Conservation of Migratory Species of Wild Animals done at Bonn on 23 June 1979.

Note:          The text of the Convention is set out in Australian Treaty Series 1991 No. 32. In 2007, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).

bulk water charge means a charge payable for the storage of water for, and the delivery of water to, any of the following:

                     (a)  infrastructure operators;

                     (b)  other operators of reticulated water systems;

                     (c)  other persons prescribed by the regulations for the purposes of this paragraph.

Bureau means the Commonwealth Bureau of Meteorology established under section 5 of the Meteorology Act 1955 .

CAMBA means the Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and their Environment done at Canberra on 20 October 1986.

Note:          The text of the Agreement is set out in Australian Treaty Series 1988 No. 22. In 2007, the text of an Agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).

civil penalty provision has the meaning given by section 146.

Climate Change Convention means the United Nations Framework Convention on Climate Change done at New York on 9 May 1992.

Note:          The text of the Convention is set out in Australian Treaty Series 1994 No. 2. In 2007, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).

Commonwealth Environmental Water Holder means the Commonwealth Environmental Water Holder established under section 104.

Commonwealth environmental water holdings has the meaning given by section 108.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

consumptive pool means the amount of water resources that can be made available for consumptive use in a particular water resource plan area under the rules of the water resource plan for that water resource plan area.

consumptive use means the use of water for private benefit consumptive purposes including irrigation, industry, urban and stock and domestic use.

contract includes a deed.

declared Ramsar wetlands has the meaning given by section 17 of the Environment Protection and Biodiversity Conservation Act 1999 .

Desertification Convention means the United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa done at Paris on 17 June 1994.

Note:          The text of the Convention is set out in Australian Treaty Series 2000 No. 18. In 2007, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).

environmental assets includes:

                     (a)  water-dependent ecosystems; and

                     (b)  ecosystem services; and

                     (c)  sites with ecological significance.

environmentally sustainable level of take for a water resource means the level at which water can be taken from that water resource which, if exceeded, would compromise:

                     (a)  key environmental assets of the water resource; or

                     (b)  key ecosystem functions of the water resource; or

                     (c)  the productive base of the water resource; or

                     (d)  key environmental outcomes for the water resource.

environmental outcomes includes:

                     (a)  ecosystem function; and

                     (b)  biodiversity; and

                     (c)  water quality; and

                     (d)  water resource health.

Note 1:       Paragraph (a) would cover, for example, maintaining ecosystem function by the periodic flooding of floodplain wetlands.

Note 2:       Paragraph (d) would cover, for example, mitigating pollution and limiting noxious algal blooms.

environmental water means:

                     (a)  held environmental water; or

                     (b)  planned environmental water.

Environmental Water Holdings Special Account means the account established by section 111.

environmental watering means the delivery or use of environmental water to achieve environmental outcomes.

environmental watering schedule means an agreement:

                     (a)  that is an agreement to coordinate the use of environmental water to maximise the benefits of environmental watering across the Murray-Darling Basin, a specified part of the Murray-Darling Basin or a specified area outside the Murray-Darling Basin; and

                     (b)  to which some or all of the following are parties:

                              (i)  holders of held environmental water (including the Commonwealth);

                             (ii)  owners of environmental assets;

                            (iii)  managers of planned environmental water; and

                     (c)  if the agreement relates to held environmental water in the Murray-Darling Basin—to which the Authority is a party.

evidential material means any of the following:

                     (a)  a thing with respect to which a provision (the compliance provision ) of Part 2, or regulations made for the purposes of Part 2, has been contravened or is suspected, on reasonable grounds, of having been contravened;

                     (b)  a thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the contravention of the compliance provision;

                     (c)  a thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of contravening the compliance provision.

executive officer of a body corporate means a person (by whatever name called and whether or not a director of the body) who is concerned in, or takes part in, the management of the body.

field relevant to the Authority’s functions has a meaning affected by subsection 178(3).

ground water means:

                     (a)  water occurring naturally below ground level (whether in an aquifer or otherwise); or

                     (b)  water occurring at a place below ground that has been pumped, diverted or released to that place for the purpose of being stored there;

but does not include water held in underground tanks, pipes or other works.

held environmental water means water available under:

                     (a)  a water access right; or

                     (b)  a water delivery right; or

                     (c)  an irrigation right;

for the purposes of achieving environmental outcomes (including water that is specified in a water access right to be for environmental use).

infrastructure operator has the meaning given by subsection 7(2).

infringement notice means an infringement notice given under section 156.

interception activity means the interception of surface water or ground water that would otherwise flow, directly or indirectly, into a watercourse, lake, wetland, aquifer, dam or reservoir that is a Basin water resource.

interest , in relation to land, means:

                     (a)  any legal or equitable estate or interest in the land; or

                     (b)  a restriction on the use of the land, whether or not annexed to other land; or

                     (c)  any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with, the land or an interest in the land.

interim water resource plan has the meaning given by section 242.

international agreement means an agreement whose parties are:

                     (a)  Australia and a foreign country; or

                     (b)  Australia and 2 or more foreign countries.

irrigation infrastructure operator has the meaning given by subsection 7(4).

irrigation network of an irrigation infrastructure operator has the meaning given by subsection 7(4).

irrigation right means a right that:

                     (a)  a person has against an irrigation infrastructure operator to receive water; and

                     (b)  is not a water access right or a water delivery right.

JAMBA means the Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment done at Tokyo on 6 February 1981.

Note:          The text of the Agreement is set out in Australian Treaty Series 1981 No. 6. In 2007, the text of an Agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).

lake :

                     (a)  means a natural lake, pond or lagoon (whether modified or not); and

                     (b)  includes a part of such a lake, pond or lagoon.

long-term annual diversion limit has the meaning given by item 7 of the table in subsection 22(1).

long-term average sustainable diversion limit has the meaning given by item 6 of the table in subsection 22(1).

maintenance includes the execution of all work of any description which is necessary to keep an existing work in the state of utility in which it was upon its original completion or upon the completion of any improvement or replacement of the work. However, it does not include:

                     (a)  the execution of any improvement to the design or function of that work; or

                     (b)  the replacement of the whole of that work; or

                     (c)  work to remedy the extraordinary failure of all or part of that work.

MDB Act means the Murray-Darling Basin Act 1993 .

MDB Agreement has the same meaning as Agreement in the MDB Act.

measures includes strategies, plans and programs.

member of the governing body of a relevant interest group has the meaning given by subsection 178(4).

modifications includes additions, omissions and substitutions.

Murray-Darling Basin means the area falling within the Murray-Darling Basin drainage division as set out in the dataset for that division that:

                     (a)  is dated 28 May 2007; and

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

                     (c)  specifies the boundary of the Murray-Darling Basin drainage division derived from the Australian Drainage Divisions, as defined by the Australian Water Resources Management Commission in 1997; and

                     (d)  is held by the Commonwealth.

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

Note 2:       A copy of the dataset can be obtained from Geoscience Australia or the Department.

Murray-Darling Basin Commission has the same meaning as Commission in the MDB Act.

Murray-Darling Basin Ministerial Council has the same meaning as Ministerial Council in the MDB Agreement.

Murray-Darling Basin Special Account means the account established by section 209.

National Water Commission means the National Water Commission established by section 6 of the National Water Commission Act 2004 .

National Water Information Standards means the standards issued under section 130.

National Water Initiative means the Intergovernmental Agreement on a National Water Initiative between the Commonwealth of Australia and the Governments of New South Wales, Victoria, Queensland, South Australia, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory (as amended from time to time).

Natural Resource Management Ministerial Council has the same meaning as in the National Water Commission Act 2004 .

operating authority means:

                     (a)  an agency of a Basin State that has the function of managing a river flow control work or a salinity work (whether or not the function is carried out by another person under a licence, contract or other arrangement with the agency); or

                     (b)  a person who has the function of managing a river flow control work or a salinity work (whether or not the function is carried out by another person under a licence, contract or other arrangement with the person).

overallocation : there is an overallocation for a water resource plan area if, with full development of water access rights in relation to the water resources of the area, the total volume of water able to be extracted by the holders of water access rights at a given time exceeds the environmentally sustainable level of take for those water resources.

overuse : there is an overuse for a water resource plan area if the total volume of water actually taken for consumptive use from the water resources of the area at a given time exceeds the environmentally sustainable level of take for those water resources.

Note:          An overuse may arise for a water resource plan area if the area is overallocated, or if the planned allocation for the area is exceeded due to inadequate monitoring or accounting.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914 .

planned environmental water has the meaning given by section 6.

premises includes the following:

                     (a)  a building;

                     (b)  a place (including an area of land);

                     (c)  a vehicle;

                     (d)  a vessel;

                     (e)  an aircraft;

                      (f)  a water resource;

                     (g)  any part of premises (including premises referred to in paragraphs (a) to (f)).

principles of ecologically sustainable development has the meaning given by subsection (2).

Ramsar Convention means the Convention on Wetlands of International Importance especially as Waterfowl Habitat done at Ramsar, Iran, on 2 February 1971.

Note:          The text of the Convention is set out in Australian Treaty Series 1975 No. 48. In 2007, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).

referring State has the meaning given by section 5.

registrable water rights has the meaning given by section 101.

regulated water charges has the meaning given by section 91.

relevant international agreement means the following:

                     (a)  the Ramsar Convention;

                     (b)  the Biodiversity Convention;

                     (c)  the Desertification Convention;

                     (d)  the Bonn Convention;

                     (e)  CAMBA;

                      (f)  JAMBA;

                     (g)  ROKAMBA;

                     (h)  the Climate Change Convention;

                      (i)  any other international convention to which Australia is a party and that is:

                              (i)  relevant to the use and management of the Basin water resources; and

                             (ii)  prescribed by the regulations for the purposes of this paragraph.

relevant State Minister , for a Basin State, means:

                     (a)  the Minister of the Crown for the State who is responsible for the administration of the State’s water management law; or

                     (b)  if there is more than one such Minister—the Minister of the Crown for the State that the Premier of the State advises the Authority, in writing, is the relevant State Minister for the State.

river flow control work has the meaning given by section 8.

ROKAMBA means the Agreement with the Government of the Republic of Korea on the Protection of Migratory Birds done at Canberra on 6 December 2006.

Note:          The text of the Agreement is set out in Australian Treaty Series 2007 No. 24. In 2007, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).

salinity work means a work to reduce, or maintain, salinity levels in the Murray-Darling Basin.

State includes the Australian Capital Territory and the Northern Territory.

State water management law means:

                     (a)  the Water Management Act 2000 , the Water Act 1912 and the Rivers and Foreshores Improvement Act 1948 of New South Wales; or

                     (b)  the Water Act 1989 and Parts 4 and 5 of the Catchment and Land Protection Act 1994 of Victoria; or

                     (c)  the Water Act 2000 of Queensland; or

                     (d)  the Natural Resources Management Act 2004 of South Australia; or

                     (e)  the Water Resources Act 2007 of the Australian Capital Territory; or

                      (f)  a law of a Basin State that:

                              (i)  is relevant to the management of Basin water resources; and

                             (ii)  is prescribed by the regulations for the purposes of this definition;

and includes regulations, and other instruments, made under those laws.

State water sharing arrangement means the provisions of:

                     (a)  the MDB Agreement; or

                     (b)  any arrangements prescribed by the regulations for the purposes of this paragraph;

that deal with the sharing of water between States.

surface water includes:

                     (a)  water in a watercourse, lake or wetland; and

                     (b)  any water flowing over or lying on land:

                              (i)  after having precipitated naturally; or

                             (ii)  after having risen to the surface naturally from underground.

take water from a water resource means to remove water from, or to reduce the flow of water in or into, the water resource including by any of the following means:

                     (a)  pumping or siphoning water from the water resource;

                     (b)  stopping, impeding or diverting the flow of water in or into the water resource;

                     (c)  releasing water from the water resource if the water resource is a wetland or lake;

                     (d)  permitting water to flow from the water resource if the water resource is a well or watercourse;

and includes storing water as part of, or in a way that is ancillary to, any of the processes or activities referred to in paragraphs (a) to (d).

temporary diversion provision has the meaning given by item 7 of the table in subsection 22(1).

thing includes a substance, and a thing in electronic or magnetic form.

tradeable water rights means:

                     (a)  water access rights; or

                     (b)  water delivery rights; or

                     (c)  irrigation rights.

transitional water resource plan has the meaning given by section 241.

water access entitlement means a perpetual or ongoing entitlement, by or under a law of a State, to exclusive access to a share of the water resources of a water resource plan area.

water access right :

                     (a)  means any right conferred by or under a law of a State to do either or both of the following:

                              (i)  to hold water from a water resource;

                             (ii)  to take water from a water resource; and

                     (b)  without limiting paragraph (a), includes the following rights of the kind referred to in that paragraph:

                              (i)  stock and domestic rights;

                             (ii)  riparian rights;

                            (iii)  a water access entitlement;

                            (iv)  a water allocation; and

                     (c)  includes any other right in relation to the taking or use of water that is prescribed by the regulations for the purposes of this paragraph.

water accounting period for a water resource plan area has the meaning given by item 2 of the table in subsection 22(1).

water allocation means the specific volume of water allocated to water access entitlements in a given water accounting period.

water charge rules has the meaning given by section 92.

water charging objectives and principles means the objectives set out in Schedule 2.

watercourse :

                     (a)  means a river, creek or other natural watercourse (whether modified or not) in which water is contained or flows (whether permanently or from time to time); and

                     (b)  includes:

                              (i)  a dam or reservoir that collects water flowing in a watercourse; and

                             (ii)  a lake or wetland through which water flows; and

                            (iii)  a channel into which the water of a watercourse has been diverted; and

                            (iv)  part of a watercourse; and

                             (v)  an estuary through which water flows.

water delivery right means a right to have water delivered by an infrastructure operator.

water-dependent ecosystem means a surface water ecosystem or a ground water ecosystem, and its natural components and processes, that depends on periodic or sustained inundation, waterlogging or significant inputs of water for its ecological integrity and includes an ecosystem associated with:

                     (a)  a wetland; or

                     (b)  a stream and its floodplain; or

                     (c)  a lake or a body of water (whether fresh or saline); or

                     (d)  a salt marsh; or

                     (e)  an estuary; or

                      (f)  a karst system; or

                     (g)  a ground water system;

and a reference to a water-dependent ecosystem includes a reference to the biodiversity of the ecosystem.

water information has the meaning given by section 125.

water market rules has the meaning given by section 97.

water resource means:

                     (a)  surface water or ground water; or

                     (b)  a watercourse, lake, wetland or aquifer (whether or not it currently has water in it);

and includes all aspects of the water resource (including water, organisms and other components and ecosystems that contribute to the physical state and environmental value of the water resource).

water resource plan for a water resource plan area means a plan that:

                     (a)  provides for the management of the water resource plan area; and

                     (b)  is either:

                              (i)  accredited under section 63; or

                             (ii)  adopted under section 69;

but only to the extent to which the water resource plan:

                     (c)  relates to Basin water resources; and

                     (d)  makes provision in relation to the matters that the Basin Plan requires a water resource plan to include.

water resource plan area means an area that:

                     (a)  contains part of the Basin water resources; and

                     (b)  is specified in the Basin Plan as an area that is a water resource plan area for the purposes of this Act.

Note:          See item 2 of the table in subsection 22(1).

water resources of a water resource plan area has the meaning given by item 2 of the table in subsection 22(1).

water service infrastructure has the meaning given by subsection 7(3).

water trading rules means the rules included in the Basin Plan under item 12 of the table in subsection 22(1).

wetland has the same meaning as in the Ramsar Convention.

             (2)  The following principles are principles of ecologically sustainable development :

                     (a)  decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;

                     (b)  if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

                     (c)  the principle of inter-generational equity—that the present generation should ensure that the health, biodiversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

                     (d)  the conservation of biodiversity and ecological integrity should be a fundamental consideration in decision-making;

                     (e)  improved valuation, pricing and incentive mechanisms should be promoted.

5   Referring States

Reference of matters by State Parliament to Commonwealth Parliament

             (1)  A State is a referring State if the Parliament of the State has referred the matters covered by subsections (3) and (4) to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:

                     (a)  if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and

                     (b)  if and to the extent to which the matters are included in the legislative powers of the Parliament of the State.

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

             (2)  A State is a referring State even if a law of the State provides that the reference to the Parliament of the Commonwealth of either or both of the matters covered by subsections (3) and (4) is to terminate in particular circumstances.

Reference covering initial provisions of this Act

             (3)  This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by including the referred provisions.

Reference covering amendments of this Act

             (4)  This subsection covers the matter of the management of water within or beneath the Murray-Darling Basin to the extent of the making of laws with respect to those matters by making express amendments of this Act.

Effect of termination of reference

             (5)  A State ceases to be a referring State if the State’s initial reference terminates.

             (6)  A State ceases to be a referring State if:

                     (a)  the State’s amendment reference terminates; and

                     (b)  subsection (7) does not apply to the termination.

             (7)  A State does not cease to be a referring State because of the termination of its amendment reference if:

                     (a)  the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

                     (b)  the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and

                     (c)  that State’s amendment reference, and the amendment reference of every other referring State, terminates on the same day.

Definitions

             (8)  In this section:

amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4).

initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (3).

referred provisions means this Act (other than Part 7) as originally enacted to the extent to which it deals with matters that are included in the legislative powers of the Parliaments of the States.

the management of water within or beneath the Murray-Darling Basin includes the following:

                     (a)  the management of any such water for consumptive purposes (including for irrigation, industry, urban use and stock and domestic use);

                     (b)  the management of any such water for environmental purposes (including for ecosystem function, biodiversity, water quality and river health);

                     (c)  trading of rights in or in relation to any such water;

                     (d)  charging for or in relation to any such water;

                     (e)  the construction, operation and maintenance of works for regulation or control of the flow of any such water;

                      (f)  the powers, functions and operation of Commonwealth authorities in relation to any such water.

6   Planned environmental water

             (1)  For the purposes of this Act, planned environmental water is water that:

                     (a)  is committed by:

                              (i)  the Basin Plan or a water resource plan for a water resource plan area; or

                             (ii)  a plan made under a State water management law; or

                            (iii)  any other instrument made under a law of a State;

                            to either or both of the following purposes:

                            (iv)  achieving environmental outcomes;

                             (v)  other environmental purposes that are specified in the plan or the instrument; and

                     (b)  cannot, to the extent to which it is committed by that instrument to that purpose or those purposes, be taken or used for any other purpose.

             (2)  For the purposes of this Act, planned environmental water is water that:

                     (a)  is preserved, by a law of a State or an instrument made under a law of a State, for the purposes of achieving environmental outcomes by any other means (for example, by means of the setting of water flow or pressure targets or establishing zones within which water may not be taken from a water resource); and

                     (b)  cannot, to the extent to which it is preserved by that instrument for that purpose or those purposes, be taken or used for any other purpose.

             (3)  The water may be committed to, or preserved for, the purpose or purposes referred to in paragraph (1)(a) or (2)(a) either generally or only at specified times or in specified circumstances.

             (4)  Without limiting paragraph (1)(b) or (2)(b), the requirements of paragraph (1)(b) or (2)(b) are taken to have been met even if the water is taken or used for another purpose in emergency circumstances in accordance with:

                     (a)  the instrument referred to in that paragraph; or

                     (b)  the law under which the instrument is made; or

                     (c)  another law.

7   Infrastructure operators etc.

             (1)  This section applies if a person owns or operates infrastructure for one or more of the following purposes:

                     (a)  the storage of water;

                     (b)  the delivery of water;

                     (c)  the drainage of water;

for the purpose of providing a service to another person.

             (2)  The person is an infrastructure operator .

             (3)  The infrastructure is water service infrastructure .

             (4)  If the infrastructure operator operates the water service infrastructure for the purposes of delivering water for the primary purpose of being used for irrigation:

                     (a)  the operator is an irrigation infrastructure operator ; and

                     (b)  the infrastructure is the operator’s irrigation network .

8   River flow control works

             (1)  For the purposes of this Act, a river flow control work is a work that:

                     (a)  regulates the flow or control of water in the watercourses of the Murray-Darling Basin, including:

                              (i)  a dam, barrage, bank, regulator, weir or lock; or

                             (ii)  a work connecting a river channel with an off-stream work that regulates the flow or control of water; or

                            (iii)  a work (including a canal) connecting a river channel with another river channel; and

                     (b)  is either:

                              (i)  owned by, or is under the control of, the Commonwealth or a Basin State; or

                             (ii)  specified in the regulations for the purposes of this paragraph.

             (2)  However, river flow control work does not include:

                     (a)  a work that is under the control of the body that is entitled, under the Snowy Hydro Corporatisation Act 1997 of New South Wales, to the Snowy water licence within the meaning of that Act; or

                     (b)  a work operated primarily to deliver water for urban retail supply; or

                     (c)  a work specified in the regulations.

             (3)  In applying paragraph (2)(a), a variation of the licence, or an amendment of the Snowy Hydro Corporatisation Act 1997 of New South Wales, after the commencement of this section is to be disregarded unless the variation is prescribed by the regulations for the purposes of this subsection.

9   Constitutional basis for Act

             (1)  This Act relies on:

                     (a)  the Commonwealth’s legislative powers under paragraphs 51(i), (v), (viii), (xi), (xv), (xx), (xxix) and (xxxix), and section 122, of the Constitution; and

                     (b)  any implied legislative powers of the Commonwealth.

Note 1:       See also sections 36 and 37, which clarify the constitutional basis for section 35.

Note 2:       See also sections 60 and 61, which clarify the constitutional basis for section 59.

Note 3:       See also section 94, which clarifies the constitutional basis for the water charge rules made under Division 1 of Part 4.

Note 4:       See also section 99, which clarifies the constitutional basis for the water market rules made under Division 2 of Part 4.

Note 5:       See also section 119, which clarifies the constitutional basis for Part 7.

Note 6:       See also section 216, which clarifies the constitutional basis for Part 10.

             (2)  If a State is a referring State, the operation of this Act (other than Part 7) in that State also relies on the referral that the State gives under paragraph 51(xxxvii) of the Constitution.

10   Basis for Basin water charge, water trading and water market rules

             (1)  This Act deals with, and provides for plans and rules made under this Act to deal with:

                     (a)  water charges in relation to:

                              (i)  the Basin water resources; or

                             (ii)  water service infrastructure that carries Basin water resources; or

                            (iii)  water access rights, irrigation rights or water delivery rights in relation to Basin water resources; and

                     (b)  the trading and transfer of tradeable water rights in relation to the Basin water resources; and

                     (c)  the market for tradeable water rights in relation to the Basin water resource.

             (2)  The basis for dealing with those topics is that:

                     (a)  the Basin water resources are physically interconnected; and

                     (b)  the Basin water resources are a major Australian water resource and, because they are interconnected, are the major Australian water resource in relation to which:

                              (i)  tradeable water rights are able to be traded between States; and

                             (ii)  water is, pursuant to that trade, able to be delivered between States; and

                     (c)  the Basin water resources are scarce and at risk of continuing scarcity and further depletion; and

                     (d)  the Basin water resources are subject to significant environmental threat; and

                     (e)  there are important and significant environmental assets that are associated with the Basin water resources and that need protection; and

                      (f)  the inefficient and/or inappropriate use of the Basin water resources would have a significant detrimental impact on:

                              (i)  the availability of the Basin water resources; and

                             (ii)  the health of the Basin water resources or the environmental assets associated with the Basin water resources; and

                     (g)  the inefficient and/or inappropriate use of the Basin water resources would have a significant detrimental economic and social impact on the wellbeing of the communities in the Murray-Darling Basin; and

                     (h)  this Act and the plans and rules relating to:

                              (i)  water charging; and

                             (ii)  trading; and

                            (iii)  the transfer of tradeable water rights; and

                            (iv)  water markets;

                            will promote:

                             (v)  the more efficient use of the Basin water resources; and

                            (vi)  the continued availability of the Basin water resources; and

                           (vii)  the health of the Basin water resources and the environmental assets associated with the Basin water resources; and

                          (viii)  the economic and social wellbeing of the communities in the Murray-Darling Basin.

11   Reading down provision in relation to the operation of sections 99 and 100 of the Constitution

             (1)  If:

                     (a)  the operation of a provision of this Act, or of regulations or another instrument made under this Act, in reliance on the Commonwealth’s legislative powers under paragraph 51(i) or (xx) of the Constitution would be invalid because of section 99 or 100 of the Constitution; and

                     (b)  the operation of that provision in reliance on another legislative power, or other legislative powers, of the Commonwealth would not be invalid because of section 99 or 100 of the Constitution;

it is the intention of the Parliament that the provision operate in reliance on the legislative power or powers referred to in paragraph (b).

             (2)  Without limiting paragraph (1)(b), the reference in that paragraph to a legislative power of the Commonwealth includes a reference to a legislative power under a referral under paragraph 51(xxxvii) of the Constitution.

             (3)  If:

                     (a)  a provision of this Act, or of regulations or another instrument made under this Act, operates in relation to trade or commerce; and

                     (b)  the operation of the provision is invalid, under section 99 or 100 of the Constitution, in relation to trade or commerce between the States;

it is intention of the Parliament that the provision operate in relation to trade or commerce within the States.

             (4)  Subsections (1) and (3) may both operate in relation to the same provision of this Act, or of regulations or another instrument made under this Act and, if they do, subsection (1) is to be applied first and then subsection (3).

             (5)  This section does not affect the operation of section 15A of the Acts Interpretation Act 1901 in relation to the provisions of this Act or the regulations or other instruments made under this Act.

12   Application to Crown etc.

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to be:

                     (a)  prosecuted for an offence; or

                     (b)  subject to civil proceedings for a civil penalty for a contravention of a civil penalty provision; or

                     (c)  given an infringement notice.

             (3)  This Act does not make an agency of the Commonwealth, or an agency of a State, liable to be:

                     (a)  prosecuted for an offence; or

                     (b)  subject to civil proceedings for a civil penalty for a contravention of a civil penalty provision; or

                     (c)  given an infringement notice.

             (4)  Subsection (3) does not apply to the following:

                     (a)  an agency of the Commonwealth of the kind referred to in paragraph (g) of the definition of agency of the Commonwealth in subsection 4(1);

                     (b)  an agency of a State of the kind that:

                              (i)  is referred to in paragraph (c) of the definition of agency of a State in subsection 4(1); and

                             (ii)  operates primarily on a commercial basis;

                     (c)  an agency of a State of the kind referred to in paragraph (g) of the definition of agency of a State in subsection 4(1).

13   The Native Title Act 1993 not affected

                   Nothing in this Act affects the operation of the Native Title Act 1993 .

14   Coverage of this Division

             (1)  This Division (other than section 15) applies only to laws of a referring State.

             (2)  This Division applies only to the following laws of the Commonwealth:

                     (a)  this Act (other than Part 7);

                     (b)  regulations made under this Act (other than regulations made for the purposes of a provision of Part 7);

                     (c)  the Basin Plan;

                     (d)  a water resource plan for a water resource plan area that is made under this Act;

                     (e)  water charge rules;

                      (f)  any other instrument made under this Act (other than Part 7).

These are referred to in this Division as the Commonwealth water legislation .

             (3)  For the purposes of this Division:

law of a State means a law of, or in force in, a State but does not include a law of the Commonwealth in force in the State.

15   Concurrent operation intended

             (1)  The Commonwealth water legislation is not intended to exclude or limit the concurrent operation of any law of a State.

             (2)  If:

                     (a)  an act or omission of a person is both an offence against the Commonwealth water legislation and an offence against the law of a State; and

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

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

             (3)  This section does not apply to a law of a State if there is a direct inconsistency between the Commonwealth water legislation and that law of a State.

Note:          Section 17 prevents direct inconsistency arising in some cases by limiting the operation of the Commonwealth water legislation.

16   Commonwealth water legislation does not apply to matters declared by State law to be an excluded matter

             (1)  Subsection (2) applies if a provision of a law of a State declares a matter to be an excluded matter for the purposes of this section in relation to:

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

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

                     (c)  the Commonwealth water legislation other than a specified provision; or

                     (d)  the Commonwealth water legislation otherwise than to a specified extent.

             (2)  By force of this subsection:

                     (a)  none of the provisions of the Commonwealth water legislation (other than this section) applies in or in relation to the State with respect to the matter if the declaration is one to which paragraph (1)(a) applies; and

                     (b)  the specified provision of the Commonwealth water legislation does not apply in or in relation to the State with respect to the matter if the declaration is one to which paragraph (1)(b) applies; and

                     (c)  the provisions of the Commonwealth water legislation (other than this section and the specified provisions) do not apply in or in relation to the State with respect to the matter if the declaration is one to which paragraph (1)(c) applies; and

                     (d)  the provisions of the Commonwealth water legislation (other than this section and otherwise than to the specified extent) do not apply in or in relation to the State with respect to the matter if the declaration is one to which paragraph (1)(d) applies.

             (3)  Subsection (2) does not apply to the declaration to the extent to which the regulations provide that that subsection does not apply to that declaration.

             (4)  In this section:

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

17   Avoiding direct inconsistency arising between the Commonwealth water legislation and State laws

Section overrides other provisions of the Commonwealth water legislation

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

Section does not deal with provisions capable of concurrent operation

             (2)  This section does not apply to a provision of a law of a State that is capable of concurrent operation with the Commonwealth water legislation.

Note:          This kind of provision is dealt with by section 15.

When this section applies to a provision of a State law

             (3)  This section applies to the interaction between a provision (the State provision ) of a law of a State and a provision (the Commonwealth provision ) of the Commonwealth water legislation only if the State provision is declared by a law of the State to be a Commonwealth water legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision).

State provision specifically permitting, authorising or requiring act or thing to be done

             (4)  The Commonwealth provision does not:

                     (a)  prohibit the doing of an act; or

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

if the State provision specifically permits, authorises or requires the doing of that act.

Other cases

             (5)  The Commonwealth provision does not operate in or in relation to the State to the extent necessary to ensure that no inconsistency arises between:

                     (a)  the Commonwealth provision; and

                     (b)  the State provision to the extent to which the State provision would, but for this subsection, be inconsistent with the Commonwealth provision.

Note 1:       The State provision is not covered by this subsection if subsection (4) applies to the State provision: if that subsection applies there would be no potential inconsistency to be dealt with by this subsection.

Note 2:       The operation of the State provision will be supported by section 15 to the extent to which it can operate concurrently with the Commonwealth provision.

18   Regulations may modify operation of the Commonwealth water legislation to deal with interaction between that legislation and State laws

             (1)  The regulations may modify the operation of the Commonwealth water legislation so that:

                     (a)  provisions of the Commonwealth water legislation do not apply to a matter that is dealt with by a law of a State specified in the regulations; or

                     (b)  no inconsistency arises between the operation of a provision of the Commonwealth water legislation and the operation of a provision of a law of a State specified in the regulations.

             (2)  Without limiting subsection (1), regulations made for the purposes of that subsection may provide that a provision of the Commonwealth water legislation:

                     (a)  does not apply to:

                              (i)  a person specified in the regulations; or

                             (ii)  a body specified in the regulations; or

                            (iii)  circumstances specified in the regulations; or

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

                     (b)  does not prohibit an act to the extent to which the prohibition would otherwise give rise to an inconsistency with a law of a State; or

                     (c)  does not require a person to do an act to the extent to which the requirement would otherwise give rise to an inconsistency with a law of a State; or

                     (d)  does not authorise a person to do an act to the extent to which the conferral of that authority on the person would otherwise give rise to an inconsistency with a law of a State; or

                     (e)  does not impose an obligation on a person to the extent to which complying with that obligation would require the person to not comply with an obligation impose on the person under a law of a State; or

                      (f)  authorises a person to do something for the purposes of the Commonwealth water legislation that the person:

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

                             (ii)  would not otherwise be authorised to do under the Commonwealth water legislation; or

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

             (3)  In this section:

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