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Water Amendment Bill 2008

Schedule 2 Other amendments

Part 1 Repeal

Murray-Darling Basin Act 1993

1  The whole of the Act

Repeal the Act .



 

Part 2 Amendments

Legislative Instruments Act 2003

2  Subsection 7(1) (table item 11)

Repeal the item.

Trade Practices Act 1974

3  Paragraph 155(9A)(a)

After “Part 4”, insert “or 4A”.

4  Paragraphs 155(9A)(b) and (c)

Omit “that Part”, substitute “Part 4 of that Act”.

5  Subsection 155AAA(21) (after paragraph (e) of the definition of protected information )

Insert:

               ; or (f)  information that:

                              (i)  was obtained by the Commission under section 155; and

                             (ii)  relates to a designated water matter within the meaning of that section.

Water Act 2007

6  Division 1 of Part 1 (heading)

Repeal the heading.

7  Subsection 4(1)

Insert:

Agreement has the meaning given by section 18A.

8  Subsection 4(1) (definition of Authority )

Repeal the definition, substitute:

Authority has the meaning given by section 18A.

9  Subsection 4(1) (definition of Authority member )

After “and includes”, insert “the Chief Executive and”.

10  Subsection 4(1) (definition of Basin Officials Committee )

Repeal the definition, substitute:

Basin Officials Committee has the meaning given by section 18A.

11  Subsection 4(1)

Insert:

Border Rivers water sharing arrangements has the meaning given by subsection 86F(3).

12  Subsection 4(1)

Insert:

Chief Executive means the Chief Executive of the Authority.

13  Subsection 4(1)

Insert:

Commissioner has the meaning given by subsection 239J(3).

14  Subsection 4(1)

Insert:

Commonwealth water legislation has the meaning given by section 250A.

15  Subsection 4(1)

Insert:

conveyance water has the meaning given by subsection 86A(4).

16  Subsection 4(1)

Insert:

critical human water needs has the meaning given by subsection 86A(2).

17  Subsection 4(1)

Insert:

former MDB Agreement has the meaning given by section 239A.

18  Subsection 4(1)

Insert:

former Murray-Darling Basin Ministerial Council has the meaning given by section 239A.

19  Subsection 4(1)

Insert:

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

20  Subsection 4(1)

Insert:

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.

21  Subsection 4(1)

Insert:

Living Murray Initiative has the meaning given by subsection 18H(2).

22  Subsection 4(1)

Insert:

Living Murray Initiative assets has the meaning given by subsection 239E(2).

23  Subsection 4(1) (definition of MDB Act )

Repeal the definition.

24  Subsection 4(1) (definition of MDB Agreement )

Repeal the definition.

25  Subsection 4(1) (definition of Murray-Darling Basin )

Repeal the definition, substitute:

Murray-Darling Basin has the meaning given by section 18A.

26  Subsection 4(1) (definition of Murray-Darling Basin Commission )

Repeal the definition, substitute:

Murray-Darling Basin Commission has the meaning given by section 239A.

27  Subsection 4(1) (definition of Murray-Darling Basin Ministerial Council )

Repeal the definition, substitute:

Murray-Darling Basin Ministerial Council has the meaning given by section 18A.

28  Subsection 4(1)

Insert:

non-Basin water access entitlement has the meaning given by subsection 100C(5).

29  Subsection 4(1)

Insert:

President has the meaning given by subsection 239J(2).

30  Subsection 4(1) (definition of referring State )

Omit “section 5”, substitute “section 18B”.

31  Subsection 4(1)

Insert:

River Murray Operations assets has the meaning given by subsection 239D(2).

32  Subsection 4(1)

Insert:

River Murray System has the meaning given by subsection 86A(3).

33  Subsection 4(1) (definition of State )

Before “includes”, insert “(except in section 18B)”.

34  Subsection 4(1) (definition of State water sharing arrangement )

Repeal the definition, substitute:

State water sharing arrangement has the meaning given by subsection 86D(4).

35  Subsection 4(1)

Insert:

transitional asset has the meaning given by subsection 239C(3).

36  Subsection 4(1)

Insert:

transitional instrument has the meaning given by subsection 239N(4).

37  Subsection 4(1)

Insert:

transitional liability has the meaning given by subsection 239F(3).

38  Section 5

Repeal the section, substitute:

5   Application of the Acts Interpretation Act 1901 to Parts 1A, 2A, 4, 4A, 10A and 11A

             (1)  The Acts Interpretation Act 1901 , as in force on the day on which Schedule 1 to the Water Amendment Act 2008 commences, applies to Parts 1A, 2A, 4, 4A, 10A and 11A.

             (2)  Amendments of the Acts Interpretation Act 1901 made after that day do not apply to those Parts.

39  Subsection 9(1)

Omit “(1) This Act”, substitute “This Act (other than Parts 1A, 2A, 4, 4A, 10A and 11A)”.

40  Subsection 9(1) (notes 3 and 4)

Repeal the notes.

41  Subsection 9(2)

Repeal the subsection.

42  After section 9

Insert:

9A   Constitutional basis of Parts 1A, 2A, 4, 4A, 10A and 11A

Operation in a Basin State

             (1)  The operation of Parts 1A, 2A, 4, 4A, 10A and 11A in a referring State that is a Basin State is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and

                     (b)  the legislative powers that the Commonwealth Parliament has in respect of matters to which those Parts relate because those matters are referred to it by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.

Note:          The State reference fully supplements the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.

             (2)  The operation of Parts 1A, 2A, 4 and 11A in a Basin State (other than the Australian Capital Territory) that is not a referring State is based on the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

Operation in a State that is not a Basin State

             (3)  The operation of Parts 4A and 11A in a referring State that is not a Basin State is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and

                     (b)  the legislative powers that the Commonwealth Parliament has in respect of matters to which those Parts relate because those matters are referred to it by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.

Note:          The State reference fully supplements the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.

Operation in the Australian Capital Territory

             (4)  The operation of Parts 1A, 2A, 4 and 10A in the Australian Capital Territory is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of that Territory; and

                     (b)  the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

Operation in the Northern Territory

             (5)  The operation of Part 4A in the Northern Territory is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of that Territory; and

                     (b)  the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

43  After subparagraph 10(1)(a)(ii)

Insert:

                           (iia)  water service infrastructure that carries water that has been taken from a Basin water resource; or

44  After section 12

Insert:

12A   Actions of the Murray-Darling Basin Ministerial Council

                   If this Act requires or permits the Murray-Darling Basin Ministerial Council to do a thing, the Murray-Darling Basin Ministerial Council is required or permitted to do the thing in accordance with any requirements specified in the Agreement.

45  Division 2 of Part 1

Repeal the Division.

46  Subsection 21(2) (note)

Repeal the note, substitute:

Note 1:       See Articles 7 and 8 of the Biodiversity Convention.

Note 2:       The Basin Plan must also be prepared having regard to critical human water needs (see Part 2A).

47  At the end of subsection 21(3) (before the note)

Add:

             ; and (c)  take account of the ecological character descriptions of:

                              (i)  all declared Ramsar wetlands within the Murray-Darling Basin; and

                             (ii)  all other key environmental sites within the Murray-Darling Basin;

                            prepared in accordance with the National Framework and Guidance for Describing the Ecological Character of Australia’s Ramsar Wetlands endorsed by the Natural Resource Management Ministerial Council.

48  Subsection 21(3) (note)

Repeal the note, substitute:

Note 1:       See Article 3 of the Ramsar Convention.

Note 2:       A copy of the National Framework and Guidance for Describing the Ecological Character of Australia’s Ramsar Wetlands may be found on the Department’s website.

49  At the end of paragraph 21(4)(c)

Add:

                    ; and (x)  any other arrangements between States for the sharing of water.

50  Subsection 21(5)

After “Basin Plan” (last occurring), insert “first”.

51  At the end of subsection 22(1)

Add:

Note:          The Basin Plan must also include matters relating to critical human water needs (see Part 2A).

52  Paragraph 26(1)(j)

Repeal the paragraph, substitute:

                      (j)  any matter that was dealt with in:

                              (i)  Schedule E to the former MDB Agreement (other than paragraph 15(3)(c) of that Schedule); or

                             (ii)  the Protocols to the former MDB Agreement made under Schedule E to the former MDB Agreement (other than the Protocol on Access and Exit Fees).

53  After subsection 34(1)

Insert:

          (1A)  Subsection (1) does not apply in relation to any of the matters included or specified in the Basin Plan under Part 2A (Critical human water needs).

Note:          For the effect of the Basin Plan on the Authority and other agencies of the Commonwealth in relation to these matters, see section 86G.

54  Subsection 35(1)

Omit “The Murray-Darling Basin Commission”, substitute “The Basin Officials Committee”.

55  After subsection 35(1)

Insert:

          (1A)  Subsection (1) does not apply in relation to any of the matters included or specified in the Basin Plan under Part 2A (Critical human water needs).

Note:          For the effect of the Basin Plan on other agencies and persons in relation to these matters, see section 86H.

56  Subsection 36(5)

Repeal the subsection.

57  Subsection 36(6)

Omit “, (4) and (5)”, substitute “and (4)”.

58  Subsection 37(6)

Repeal the subsection.

59  Subsection 37(7)

Omit “, (5) and (6)”, substitute “and (5)”.

59A  At the end of section 41

Add “together with any document prepared under paragraph 43(11)(a) or 43A(6)(d)”.

59B  Paragraph 43(11)(b)

Repeal the paragraph.

60  After section 43

Insert:

43A   Authority to seek comments from Murray-Darling Basin Ministerial Council on proposed Basin Plan

             (1)  This section applies once the Authority has complied with section 43 in relation to a proposed Basin Plan.

             (2)  Without limiting subsection 42(1), the Authority must give each member of the Murray-Darling Basin Ministerial Council a copy of the proposed Basin Plan (incorporating any alterations it has made under paragraph 43(10)(b)).

             (3)  The copy must be given together with the Authority’s advice to the Murray-Darling Basin Ministerial Council on the likely socio-economic implications of any reductions in the long-term average sustainable diversion limits proposed in the proposed Basin Plan.

             (4)  The Murray-Darling Basin Ministerial Council must, within 6 weeks after the Authority complied with subsection (2), give the Authority a written notice:

                     (a)  stating that neither the Murray-Darling Basin Ministerial Council nor any of its members have any comments on the proposed Basin Plan; or

                     (b)  stating that the Murray-Darling Basin Ministerial Council, or one or more of its members, disagrees with one or both of the following:

                              (i)  the long-term average sustainable diversion limits proposed in the proposed Basin Plan;

                             (ii)  any other aspect of the proposed Basin Plan in relation to which the Minister may give a direction under subparagraph 44(3)(b)(ii);

                            and specifying the nature of the disagreement.

Note:          Subsection 44(5) specifies matters in relation to which the Minister must not give a direction.

             (5)  If the Murray-Darling Basin Ministerial Council does not give the Authority such a notice within that period of 6 weeks, the Murray-Darling Basin Ministerial Council and its members are taken not to have any comments on the proposed Basin Plan.

             (6)  If the Murray-Darling Basin Ministerial Council gives the Authority a notice that states under paragraph (4)(b) matters with which the Murray-Darling Basin Ministerial Council, or one or more of its members, disagrees, the Authority must:

                     (a)  consider the matters; and

                     (b)  undertake such consultations in relation to the matters as the Authority considers necessary or appropriate; and

                     (c)  either:

                              (i)  confirm the proposed Basin Plan, and give each member of the Murray-Darling Basin Ministerial Council a copy of the unaltered proposed Basin Plan, together with the Authority’s views on the matters; or

                             (ii)  alter the proposed Basin Plan, and give each member of the Murray-Darling Basin Ministerial Council a copy of the altered proposed Basin Plan, together with the Authority’s views on the matters; and

                     (d)  prepare a document that summarises:

                              (i)  any submissions it received in response to the consultations referred to in paragraph (b); and

                             (ii)  how it addressed those submissions; and

                            (iii)  the extent (if any) to which its consideration of those submissions has affected the version of the Plan, or the views, given to the members of the Murray-Darling Basin Ministerial Council under paragraph (c); and

                     (e)  publish on its website a copy of the document prepared under paragraph (d).

             (7)  The Murray-Darling Basin Ministerial Council must, within 3 weeks after the Authority complied with paragraph (6)(c), give the Minister a written notice:

                     (a)  stating that neither the Murray-Darling Basin Ministerial Council nor any of its members express any further views on the proposed Basin Plan; or

                     (b)  setting out the views of the Murray-Darling Basin Ministerial Council, or one or more of its members, on one or both of the following:

                              (i)  the long-term average sustainable diversion limits proposed in the proposed Basin Plan;

                             (ii)  any other aspect of the proposed Basin Plan in relation to which the Minister may give a direction under subparagraph 44(3)(b)(ii).

Note:          Subsection 44(5) specifies matters in relation to which the Minister must not give a direction.

             (8)  If the Murray-Darling Basin Ministerial Council does not give the Minister such a notice within that period of 3 weeks, the Murray-Darling Basin Ministerial Council and its members are taken not to express any further views on the proposed Basin Plan.

61  Subsection 44(1)

Omit “60 days”, substitute “12 weeks”.

62  Subsection 44(3)

Omit “30 days”, substitute “6 weeks”.

63  After subsection 44(5)

Insert:

          (5A)  To avoid doubt, subsections 43A(5) and (8) do not affect the Minister’s power to give suggestions or directions to the Authority under this section.

63A  At the end of section 45

Add “together with any document prepared under paragraph 47(11)(a) or 47A(5)(d)”.

63B  Paragraph 47(11)(b)

Repeal the paragraph.

64  After section 47

Insert:

47A   Authority to seek comments from Murray-Darling Basin Ministerial Council on proposed amendment of Basin Plan

             (1)  This section applies once the Authority has complied with section 47 in relation to a proposed amendment of the Basin Plan.

             (2)  Without limiting subsection 46(1), the Authority must give each member of the Murray-Darling Basin Ministerial Council a copy of the proposed amendment of the Basin Plan (incorporating any alterations it has made under paragraph 47(10)(b)).

             (3)  The Murray-Darling Basin Ministerial Council must, within 6 weeks after the Authority complied with subsection (2), give the Authority a written notice:

                     (a)  stating that neither the Murray-Darling Basin Ministerial Council nor any of its members have any comments on the proposed amendment; or

                     (b)  stating that the Murray-Darling Basin Ministerial Council, or one or more of its members, disagrees with one or both of the following:

                              (i)  the long-term average sustainable diversion limits proposed in the proposed amendment;

                             (ii)  any other aspect of the proposed amendment in relation to which the Minister may give a direction under subparagraph 48(3)(b)(ii);

                            and specifying the nature of the disagreement.

Note:          Subsection 48(5) specifies matters in relation to which the Minister must not give a direction.

             (4)  If the Murray-Darling Basin Ministerial Council does not give the Authority such a notice within that period of 6 weeks, the Murray-Darling Basin Ministerial Council and its members are taken not to have any comments on the proposed amendment.

             (5)  If the Murray-Darling Basin Ministerial Council gives the Authority a notice that states under paragraph (3)(b) matters with which the Murray-Darling Basin Ministerial Council, or one or more of its members, disagrees, the Authority must:

                     (a)  consider the matters; and

                     (b)  undertake such consultations in relation to the matters as the Authority considers necessary or appropriate; and

                     (c)  either:

                              (i)  confirm the proposed amendment, and give each member of the Murray-Darling Basin Ministerial Council a copy of the unaltered proposed amendment, together with the Authority’s views on the matters; or

                             (ii)  alter the proposed amendment, and give each member of the Murray-Darling Basin Ministerial Council a copy of the altered proposed amendment, together with the Authority’s views on the matters; and

                     (d)  prepare a document that summarises:

                              (i)  any submissions it received in response to the consultations referred to in paragraph (b); and

                             (ii)  how it addressed those submissions; and

                            (iii)  the extent (if any) to which its consideration of those submissions has affected the version of the Plan, or the views, given to the members of the Murray-Darling Basin Ministerial Council under paragraph (c); and

                     (e)  publish on its website a copy of the document prepared under paragraph (d).

             (6)  The Murray-Darling Basin Ministerial Council must, within 3 weeks after the Authority complied with paragraph (5)(c), give the Minister a written notice:

                     (a)  stating that neither the Murray-Darling Basin Ministerial Council nor any of its members express any further views on the proposed amendment; or

                     (b)  setting out the views of the Murray-Darling Basin Ministerial Council, or one or more of its members, on one or both of the following:

                              (i)  the long-term average sustainable diversion limits proposed in the proposed amendment;

                             (ii)  any other aspect of the proposed Basin Plan in relation to which the Minister may give a direction under subparagraph 48(3)(b)(ii).

Note:          Subsection 48(5) specifies matters in relation to which the Minister must not give a direction.

             (7)  If the Murray-Darling Basin Ministerial Council does not give the Minister such a notice within that period of 3 weeks, the Murray-Darling Basin Ministerial Council and its members are taken not to express any further views on the proposed amendment.

65  Subsection 48(1)

Omit “60 days”, substitute “12 weeks”.

66  After subsection 48(5)

Insert:

          (5A)  To avoid doubt, subsections 47A(4) and (7) do not affect the Minister’s power to give suggestions or directions to the Authority under this section.

67  Before section 50

Insert:

49A   Authority to advise Murray-Darling Basin Ministerial Council on impacts of Basin Plan

             (1)  The Authority must give advice to the Murray-Darling Basin Ministerial Council on the impacts of the Basin Plan as soon as possible after the end of the first 5 years after the Basin Plan takes effect.

             (2)  The Authority must make a copy of the advice available on the Authority’s website.

68  Paragraph 50(1)(a)

After “Basin Plan” (second occurring), insert “first”.

69  Subsection 50(4)

After “Basin Plan” (first occurring), insert “first”.

70  Paragraph 56(2)(a)

After “Basin Plan” (first occurring), insert “first”.

71  Subsection 59(1)

Omit “The Murray-Darling Basin Commission”, substitute “The Basin Officials Committee”.

72  Subsection 60(5)

Repeal the subsection.

73  Subsection 60(6)

Omit “, (4) and (5)”, substitute “and (4)”.

74  Subsection 61(6)

Repeal the subsection.

75  Subsection 61(7)

Omit “, (5) and (6)”, substitute “and (5)”.

76  Subsection 74(2) (note 1)

Omit “, for reductions that occur on or after 1 January 2015,”.

77  After section 74

Insert:

74A   States applying the risk assignment framework

             (1)  The Minister must, in writing, determine that a Basin State is a State to which this section applies if the Minister is satisfied that a State water management law of the State:

                     (a)  has applied the risk assignment framework provided for in clauses 48 to 50 of the National Water Initiative, read in conjunction with clause 10.1.3 of the Agreement on Murray-Darling Basin Reform of 3 July 2008; and

                     (b)  has applied that framework by, and at all times since:

                              (i)  30 June 2009; or

                             (ii)  a later day specified in the regulations.

Note:          Clauses 48 to 50 of the National Water Initiative and clause 10.1.3 of the Agreement on Murray-Darling Basin Reform of 3 July 2008 are set out in Schedule 3A.

             (2)  The day specified in regulations made for the purposes of subparagraph (1)(b)(ii) must not be later than the day on which the Basin Plan first takes effect.

          (2A)  The Minister is taken, on the commencement of this section, to have made a determination under subsection (1) that New South Wales is a State to which this section applies.

             (3)  The Minister must, in writing, revoke a determination made under subsection (1) if satisfied that there is no longer a State water management law of the State that gives effect to that framework.

             (4)  In considering whether to make a determination under subsection (1), or revoke it under subsection (3), the Minister may ask the National Water Commission for advice.

             (5)  A determination made under subsection (1), or a revocation under subsection (3), is not a legislative instrument.

78  After subsection 75(1)

Insert:

          (1A)  In working out the amount of the Commonwealth Government policy component or the new knowledge component, any reduction that is a result of matters referred to in clause 48 of the National Water Initiative is to be disregarded.

Note:          Clause 48 of the National Water Initiative is set out in Part 1 of Schedule 3A.

79  Paragraph 75(2)(b)

After “if” (first occurring), insert “the Basin State in which the water resource plan area is located is not a State to which section 74A applies, and”.

80  At the end of subsection 75(2)

Add:

             ; and (c)  if the Basin State in which the water resource plan area is located is a State to which section 74A applies—the Commonwealth’s share of the reduction also includes so much of the new knowledge component (if any) as is worked out under subsection (3A).

81  After subsection 75(3)

Insert:

          (3A)  The amount to be included in the Commonwealth’s share of the reduction under paragraph (2)(c) is to be worked out on the basis that, for reductions in the long-term average sustainable diversion limit for the water resources, or that part of the water resources, of the water resource plan area in any 10 year period, the Commonwealth’s share of the reductions:

                     (a)  does not include so much of new knowledge components of those reductions as does not exceed (in aggregate) 3% of the relevant diversion limit; and

                     (b)  includes all of so much of the new knowledge components of those reductions as exceeds (in aggregate) 3% of the relevant diversion limit.

82  Subsection 75(4)

After “subsection (3)”, insert “or (3A)”.

83  Paragraph 75(4)(b)

Repeal the paragraph, substitute:

                     (b)  on or after:

                              (i)  if the Basin State in which the water resource plan area is located is a State to which section 74A applies, and a transitional water resource plan or an interim water resource plan has effect for the area—the day on which that plan ceases to have effect; or

                             (ii)  in any other case—1 January 2015.

84  Subparagraph 77(1)(b)(iii)

After “Basin Plan”, insert “first”.

85  Subparagraph 77(1)(b)(iv)

After “Basin Plan” (first occurring), insert “first”.

86  Paragraphs 77(4)(a) and (b) and 79(2)(f)

Before “value”, insert “market”.

87  After subsection 81(3)

Insert:

          (3A)  In working out the amount of the Commonwealth Government policy component or the new knowledge component, any reduction that is a result of matters referred to in clause 48 of the National Water Initiative is to be disregarded.

Note:          Clause 48 of the National Water Initiative is set out in Part 1 of Schedule 3A.

88  Subparagraph 83(1)(b)(iii)

After “Basin Plan”, insert “first”.

89  Subparagraph 83(1)(b)(iv)

After “Basin Plan” (first occurring), insert “first”.

90  Paragraphs 83(6)(a) and (b) and 85(2)(e)

Before “value”, insert “market”.

91  Part 4

Repeal the Part.

92  At the end of section 105

Add:

             (5)  Paragraph (4)(a) does not prevent the Commonwealth Environmental Water Holder making available water from the Commonwealth environmental water holdings for the purposes of protecting or restoring the environmental assets of an area outside the Murray-Darling Basin so as to:

                     (a)  give effect to an agreement between the Commonwealth and one or more States; and

                     (b)  return water to the Snowy River.

93  Subsection 108(3)

Repeal the subsection, substitute:

             (3)  However, Commonwealth environmental water holdings do not include:

                     (a)  water access rights, water delivery rights, irrigation rights or other similar rights relating to water; or

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

that:

                     (c)  the Commonwealth (including any agency of the Commonwealth) holds for the purpose of the use of water by the Commonwealth (including any agency of the Commonwealth) in the performance of functions that are not related to its functions of water management under this Act; or

                     (d)  the Commonwealth (including any agency of the Commonwealth) holds for the purposes of the Living Murray Initiative (including rights or interests that vested in the Authority under section 239C having been held for that purpose by the Murray-Darling Basin Commission before the commencement of Part 10A).

94  Paragraph 123(2)(b)

Omit “a person’s”, substitute “an individual’s”.

95  Subparagraph 123(2)(b)(ii)

Omit “person’s”, substitute “individual’s”.

96  Section 125 (definition of water information )

Repeal the definition, substitute:

water information means:

                     (a)  any raw data, or any value added information product, that relates to:

                              (i)  the availability, distribution, quantity, quality, use, trading or cost of water; or

                             (ii)  water access rights, water delivery rights or irrigation rights; or

                     (b)  any metadata relating to data of a kind referred to in paragraph (a);

and includes contextual information relating to water (such as land use information, geological information and ecological information).

97  Paragraph 137(b)

After “Part 4” (wherever occurring), insert “or 4A”.

98  Paragraphs 172(1)(b) and (c) (note)

Repeal the notes, substitute:

Note:       The Authority may adopt Basin State records, and request the Basin States to take these measurements etc. (see subsection (2)).

99  After paragraph 172(1)(e)

Insert:

                    (ea)  to develop, in consultation with the Basin States, an integrated water model for the Murray-Darling Basin;

100  Paragraph 172(1)(g)

Repeal the paragraph, substitute:

                     (g)  to make recommendations to:

                              (i)  the Commonwealth; or

                             (ii)  a Basin State; or

                            (iii)  an agency of the Commonwealth or a Basin State;

                            about any matter (including the carrying out of any works or other measures by the Commonwealth, State or agency) that the Authority considers could in any way affect the quality or quantity of the Basin water resources;

101  At the end of subsection 172(1)

Add:

Note:          The Authority also has the functions conferred on it by Part 1A (The Murray-Darling Basin Agreement) and Part 2A (Critical human water needs).

102  Paragraph 172(2)(a)

Omit “the Murray-Darling Basin Commission,”.

103  Paragraph 172(2)(b)

Repeal the paragraph.

104  Subsection 172(3)

Omit “the Basin Officials Committee”, substitute “the other members of the Murray-Darling Basin Ministerial Council, and inform the Basin Officials Committee,”.

105  Section 173

Repeal the section, substitute:

173   Authority’s powers

             (1)  The Authority has power to do anything that is necessary or convenient to be done for or in connection with the performance of its functions.

Note 1:       The Authority’s functions are set out in section 172, and in Part 1A (The Murray-Darling Basin Agreement) and Part 2A (Critical human water needs).

Note 2:       The Authority also has the powers conferred on it by Parts 1A and 2A.

             (2)  The Authority’s powers include, but are not limited to, the following powers:

                     (a)  the power to acquire, hold and dispose of real and personal property;

                     (b)  the power to enter into contracts.

Note 1:       Under paragraph 176(1)(c), the Authority may also sue and be sued in its corporate name.

Note 2:       Acquisitions of interests in land will be done in accordance with the Lands Acquisition Act 1989 and the Financial Management and Accountability Act 1997 .

Note 3:       The Chief Executive of the Authority may also enter into contracts on behalf of the Commonwealth. See section 44 of the Financial Management and Accountability Act 1997 .

             (3)  Any real or personal property held by the Authority is held for and on behalf of the Commonwealth.

Note:          This subsection does not have the effect of transferring property to the Authority.

             (4)  Any money received by the Authority is received for and on behalf of the Commonwealth.

Note:          This subsection does not have the effect of transferring money to the Authority.

             (5)  To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (3).

106  At the end of subsection 174(1)

Add:

Note:          Clause 145 of the Agreement provides for the Commonwealth to recover from the Basin States a proportion of any payment made by the Commonwealth in respect of any act or omission of the Authority in the execution in good faith of the powers vested in the Authority by or under the Agreement.

107  At the end of subsection 175(2)

Add:

                   ; (e)  the performance of a function that is conferred under Part 1A or 2A.

108  Before paragraph 177(a)

Insert:

                    (aa)  a Chief Executive;

109  Subsections 178(5) and (6)

Omit “Authority Chair”, substitute “Chief Executive”.

110  At the end of section 178

Add:

             (8)  An act of the Authority is not invalid because of a defect or irregularity in connection with the appointment of the Chief Executive, Authority Chair or any other member of the Authority.

111  Section 179

Before “An Authority member”, insert “(1)”.

112  At the end of section 179 (before the note)

Add:

             (2)  The sum of an Authority member’s first appointment period and any period or periods of re-appointment must not exceed 8 years (not including any periods of acting appointment).

113  Before subsection 180(1)

Insert:

Acting Chief Executive

          (1A)  The Minister may appoint a member of the Authority staff who is an SES employee to act as the Chief Executive:

                     (a)  during a vacancy in the office of the Chief Executive, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Chief Executive:

                              (i)  is absent from duty or Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

114  Subsection 180(2)

After “other than” (wherever occurring), insert “the Chief Executive or”.

Note:       The heading to subsection 180(2) is altered by inserting “ Chief Executive or ” after “ other than ”.

115  Subsections 184(1) and (2)

Omit “Authority Chair”, substitute “Chief Executive”.

116  Section 185

Omit “Authority Chair”, substitute “Chief Executive”.

117  Section 187

Omit “Authority Chair” (wherever occurring), substitute “Chief Executive”.

118  Paragraph 189(2)(c)

Omit “Authority Chair”, substitute “Chief Executive”.

119  Paragraph 189(2)(d)

Omit “if the member is not the Authority Chair—”.

120  Paragraph 189(2)(e)

Omit “Authority Chair”, substitute “Chief Executive”.

121  After paragraph 189(2)(e)

Insert:

                    (ea)  if the member is not the Chief Executive—the member engages, except with the Minister’s approval, in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office; or

122  Subdivision D of Division 3 of Part 9 (heading)

Repeal the heading, substitute:

Subdivision D Basin Officials Committee

123  Subsection 201(1)

Repeal the subsection.

124  Subsection 201(2)

Omit “(2) The”, substitute “In addition to the functions that the Agreement confers on the Basin Officials Committee, the”.

Note:       The heading to subsection 201(2) is deleted.

125  Paragraph 201(2)(b)

Omit “resources;”, substitute “resources.”.

126  Paragraphs 201(2)(c) and (d)

Repeal the paragraphs.

127  Subsections 201(3) to (6)

Repeal the subsections.

128  After section 201

Insert:

201A   Appointment of Chair of the Basin Officials Committee

             (1)  The Chair of the Basin Officials Committee is to be appointed by the Minister by written instrument.

Note:          For re-appointment, see subsection 33(4A) of the Acts Interpretation Act 1901 .

             (2)  To be eligible for appointment as the Chair of the Basin Officials Committee, an individual must be the Secretary of the Department or an SES employee.

             (3)  The appointment of the Chair of the Basin Officials Committee is not invalidated merely because of a defect or irregularity in connection with the appointment.

201B   Acting Chair of the Basin Officials Committee

             (1)  The Minister may, by written instrument, appoint an individual to act as the Chair of the Basin Officials Committee.

             (2)  To be eligible for appointment to act as the Chair of the Basin Officials Committee, an individual must be the Secretary of the Department or an SES employee.

             (3)  An individual’s appointment to act as the Chair of the Basin Officials Committee:

                     (a)  does not cease to have effect merely because the Chair’s appointment ceases to have effect; and

                     (b)  if the Chair is replaced by the appointment of another Chair—continues in effect in relation to the new Chair.

             (4)  An individual appointed to act as the Chair of the Basin Officials Committee may act as, and perform the functions and exercise the powers of, the Chair:

                     (a)  during a vacancy in the office of the Chair, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Chair:

                              (i)  is absent from duty or Australia; or

                             (ii)  is, for any reason, unable to attend a meeting of the Basin Officials Committee; or

                            (iii)  is, for any reason, unable to perform the duties of the office.

             (5)  Anything done by or in relation to an individual purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

201C   Period of appointment for Chair of the Basin Officials Committee

             (1)  The Chair of the Basin Officials Committee (including an acting Chair) holds office for the period specified in his or her instrument of appointment.

             (2)  This section does not affect the operation of section 33A of the Acts Interpretation Act 1901 .

Subdivision E Other advisory committees

129  At the end of subsection 202(2)

Add:

Note:          The Basin Community Committee also has the functions conferred on it by the Agreement (see section 18F).

130  Subsection 202(7) (at the end of the definition of water user )

Add:

               ; or (e)  is engaged in interception activities with a significant impact (whether on an activity-by-activity basis or cumulatively) on water resources.

131  Subsection 204(1)

After “advisory committee”, insert “(other than the Basin Officials Committee)”.

132  Subsection 204(2)

Repeal the subsection.

133  Subsection 204(3)

After “an individual must”, insert “be nominated by the Murray-Darling Basin Ministerial Council and must”.

134  Subsection 205(1)

After “advisory committee”, insert “(other than the Basin Officials Committee)”.

135  After subsection 205(1)

Insert:

          (1A)  However, the Basin Community Committee is not subject to direction under subsection (1) in relation to its functions, powers and duties under section 18F.

136  Subsection 205(2)

Omit “the Basin Officials Committee or”.

137  Subsection 206(2)

Omit “Authority Chair” (wherever occurring), substitute “Chief Executive”.

138  Section 207 (note)

Omit “Authority Chair”, substitute “Chief Executive”.

139  Section 208

Omit “Authority Chair”, substitute “Chief Executive”.

Note:       The heading to section 208 is altered by omitting “ Chair ” and substituting “ Chief Executive ”.

140  Section 208

Omit “Chair’s”, substitute “Chief Executive’s”.

141  Paragraph 210(b)

Omit “Commonwealth”, substitute “Authority”.

142  Paragraph 210(c)

Repeal the paragraph.

143  Paragraph 210(d)

Omit “Commonwealth”, substitute “Authority”.

144  After paragraph 210(d)

Insert:

                   (da)  interest received by the Commonwealth from the investment of an amount standing to the credit of the Account;

145  Paragraph 210(e)

Omit “Commonwealth”, substitute “Authority”.

146  After paragraph 210(e)

Insert:

                    (ea)  amounts received by the Authority in relation to assets that vest in the Authority under section 239C;

                   (eb)  amounts received by the Authority as refunds or repayments of the whole or part of amounts paid by the Murray-Darling Basin Commission before the commencement of Schedule 1 to the Water Amendment Act 2008 ;

147  At the end of section 210 (before the note)

Add:

                   ; (g)  amounts not otherwise covered by this section that are received by the Authority in connection with the performance of the Authority’s functions under this Act or the regulations.

148  Paragraph 211(2)(a)

Omit “Commonwealth”, substitute “Authority”.

149  Subsection 212(5)

Repeal the subsection, substitute:

             (5)  A fee must not be such as to amount to taxation.

150  After Subdivision C of Division 5 of Part 9

Insert:

Subdivision CA Corporate plan

213A   Corporate plan

             (1)  The Authority must prepare a corporate plan at least once a financial year and give it to the Minister.

             (2)  The corporate plan must cover a period of 4 financial years.

             (3)  The corporate plan for a financial year must:

                     (a)  include the corporate plan approved by the Murray-Darling Basin Ministerial Council under the Agreement in relation to that year; and

                     (b)  set out:

                              (i)  the objectives of the Authority; and

                             (ii)  the planned activities of the Authority for the 4 financial years relating to its functions under this Act (other than Part 1A); and

                            (iii)  the budget for those planned activities.

             (4)  The Authority must keep the Minister informed about matters that might significantly affect the achievement of the objectives set out in the corporate plan.

213B   Variation of corporate plan

             (1)  The Authority may at any time vary the corporate plan on its own initiative.

             (2)  The Authority must not vary the part of the plan that is the corporate plan approved by the Murray-Darling Basin Ministerial Council under the Agreement, unless the variation has been approved in accordance with the Agreement.

             (3)  The Authority must give a copy of the variation to the Minister.

151  Subsection 214(1)

Omit “Authority Chair”, substitute “Chief Executive”.

152  Subsection 214(1)

After “the Minister”, insert “, and to each other member of the Murray-Darling Basin Ministerial Council,”.

153  Subsection 214(2)

Omit “Authority Chair”, substitute “Chief Executive”.

154  At the end of subsection 214(2)

Add:

                   ; (e)  information about the Authority’s activities during the year, including information about:

                              (i)  implementation of the Authority’s corporate plan; and

                             (ii)  any other matters on which the Authority is required to report under the Agreement.

155  Subsection 214(4)

Repeal the subsection.

156  Paragraphs 216(3)(b) and (4)(b)

Omit “or a referring State”.

157  Part 11 (heading)

Repeal the heading, substitute:

Part 11 Other transitional matters

158  Subsection 246(2)

Omit “Subsection 55(2)”, substitute “Subsection 65(6)”.

159  Section 248 (note)

Omit “the Basin’s”.

160  After section 252

Insert:

252A   Dataset for Murray-Darling Basin to be publicly available

                   The Commonwealth must make a copy of the dataset referred to in the definition of Murray-Darling Basin in section 18A available on the Department’s website.

161  After section 255

Insert:

255A   Application of water charge rules in Basin States that are not referring States

             (1)  If a Basin State is not a referring State, water charge rules apply in the State to a regulated water charge if one or more of the paragraphs in subsection (2) are satisfied.

             (2)  This subsection applies if:

                     (a)  the person imposing the charge, or making the demand, is a constitutional corporation; or

                     (b)  the person on whom the charge is imposed, or from whom the charge is demanded, is a constitutional corporation; or

                     (c)  the charge is imposed, or payment of the charge is demanded, in the course of trade and commerce between the States or between a State and a Territory; or

                     (d)  the person who imposes, or demands payment of, the charge does so in a Territory; or

                     (e)  the charge relates to:

                              (i)  a water resource in a Territory; or

                             (ii)  water service infrastructure in a Territory; or

                            (iii)  tradeable water rights in relation to a water resource in a Territory; or

                      (f)  the charge is imposed, or payment of the charge is demanded, using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).

             (3)  Subsection (2), and the paragraphs of that subsection, do not limit the operation (if any) that the water charge rules validly have apart from this section.

255B   Application of water market rules in Basin States that are not referring States

             (1)  If a Basin State is not a referring State, water market rules apply in the State to an act, or a failure to do an act, by an infrastructure operator that has an effect on:

                     (a)  the ability of a person who holds an irrigation right against the operator to obtain a water access entitlement; or

                     (b)  the ability of a person who held an irrigation right against the operator to trade or transfer a water access entitlement;

if one or more of the paragraphs in subsection (2) are satisfied.

             (2)  This subsection applies if:

                     (a)  the infrastructure operator or the person who holds, or held, the irrigation right is a constitutional corporation; or

                     (b)  the act is done, or the failure to do the act occurs, in the course of trade and commerce between the States or between a State and a Territory; or

                     (c)  the act is done, or the failure to do the act occurs, in a Territory; or

                     (d)  the water access right, or the irrigation right, relates to a water resource in a Territory; or

                     (e)  the act is done, or the failure to do the act occurs, using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).

             (3)  Subsection (2), and the paragraphs of that subsection, do not limit the operation (if any) that the water market rules validly have apart from this section.

162  At the end of section 256

Add:

             (3)  Regulations made for the purposes of Part 7 may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification (including any omission, addition or substitution), any matter contained in a written instrument or other document:

                     (a)  as in force or existing at a particular time; or

                     (b)  as in force or existing from time to time;

even if the written instrument or other document does not yet exist when the regulations are made.

             (4)  Subsection (3) has effect despite subsection 14(2) of the Legislative Instruments Act 2003 .

             (5)  If regulations made for the purposes of Part 7 make provision in relation to a matter by applying, adopting or incorporating a matter contained in a written instrument or other document, the Director of Meteorology must ensure that:

                     (a)  the text of the matter applied, adopted or incorporated is made publicly available on the Bureau’s website, unless that text is set out in the regulations; and

                     (b)  if the text of the matter is applied, adopted or incorporated as in force or existing from time to time—any subsequent amendments of that text are made publicly available on that website.

163  Schedule 1

Repeal the Schedule.

164  Subparagraph 2(a)(ii) of Schedule 2 (second occurring)

Renumber as subparagraph (iii).

165  After Schedule 3

Insert:

Schedule 3A Risk assignment framework

Note:       See section 74A.

Part 1 Clauses 48 to 50 of the National Water Initiative

48.        Water access entitlement holders are to bear the risks of any reduction or less reliable water allocation, under their water access entitlements , arising from reductions to the consumptive pool as a result of:

(i)     seasonal or long-term changes in climate; and

(ii)    periodic natural events such as bushfires and drought.

49.       The risks of any reduction or less reliable water allocation under a water access entitlement , arising as a result of bona fide improvements in the knowledge of water systems’ capacity to sustain particular extraction levels are to be borne by users up to 2014. Risks arising under comprehensive water plans commencing or renewed after 2014 are to be shared over each ten year period in the following way:

i)      water access entitlement holders to bear the first 3% reduction in water allocation under a water access entitlement ;

ii)    State/Territory governments and the Commonwealth Government to share one-third and two-thirds respectively reductions in water allocation under water access entitlements of between 3% and 6%; and

iii)   State/Territory and Commonwealth governments to equally share reductions in water allocation under water access entitlements greater than 6% .

50.       Governments are to bear the risks of any reduction or less reliable water allocation that is not previously provided for, arising from changes in government policy (for example, new environmental objectives). In such cases, governments may recover this water in accordance with the principles for assessing the most efficient and cost effective measures for water recovery.

Part 2 Clause 10.1.3 of the Agreement on Murray-Darling Basin Reform of 3 July 2008

10.1.3                  Commonwealth undertakes to use its best endeavours to enact legislation to amend Division 4 of Part 2 of the Water Act so that:

In respect of those Basin States who choose to apply the National Water Initiative risk assignment framework:

a)     the Commonwealth’s share of a reduction in a long-term average sustainable diversion limit includes, in any 10 year period, all of the new knowledge components of the reductions that exceed three per cent of the relevant diversion limit; and

b)    for a water resource plan area in the Murray-Darling Basin with a transitional or interim water resource plan, the Commonwealth will take responsibility for its share of the new knowledge component of a reduction in the long-term average sustainable diversion limit for the water resources of that plan area arising after the transitional or interim water resource plan ceases to have effect.