Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Water (Crisis Powers and Floodwater Diversion) Bill 2010

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

 

 

 

 

 

 

2008-2009-2010

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

WATER (CRISIS POWERS AND FLOODWATER DIVERSION) BILL 2010

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of Senator N Xenophon)

 

 

 

 

 

 

 

 

 

 

 

 

 

WATER (CRISIS POWERS AND FLOODWATER DIVERSION) BILL 2010

 

 

Background

In January and March 2010, storms and significant rainfall over Queensland resulted in severe flooding. According to the Bureau of Meteorology, Queensland rivers in the Murray-Darling Basin was estimated to receive a total volume of approximately 2,039 gigalitres from floodwaters by the end of the flood.

 

How much of these, or any, floodwaters, will be allowed to flow down to the southern states, however, is undetermined. Rather, it is left for states to negotiate between themselves.

 

This Bill seeks to introduce measures where, in periods of extreme crisis, the Murray-Darling Basin Authority is given the power to manage the water resources of the Basin as a single system during periods of extreme crisis.

 

This transference of powers to the national body, the Murray-Darling Basin Authority means that it can make determinations with regard to the management of waters in the interest of the system as a whole, not with vested state or territory interests.

 

These powers give the Murray-Darling Basin Authority overall control of the water resources in the Basin to address the crisis, including by making decisions with respect to groundwater and surface water allocation decisions as required.

 

It also empowers the Authority to share, manage and allocate basin water resources and manage all processes that may adversely affect the amount of water likely to flow through the Basin, including making allocations to entitlement holders and/or allowing the diversion of water from flood-affected States or where there is significant rainfall.

 

An extreme crisis is defined as occurring when the level of water in Lake Alexandrina is continuously less than + 0.0 Australian Height Datum (AHD) for more than 3 consecutive months, or when allocations to high security water entitlement holders in any irrigation district have been below 20 percent for more than 2 consecutive years.

 

The period of extreme crisis is considered to have ended when the level of water in Lake Alexandrina has returned to a level continuously above +0.4 AHD for 3 consecutive months, or when allocations to those high security water entitlement holders have retuned to a level above 40 percent in any year.

 

 

Notes on clauses

 

  1. Short Title

This clause is a formal provision and specifies that the short title of Bill, once enacted, may be cited as the Water (Crisis Powers and Floodwater Diversion) Act 2010.

 

  1. Commencement

This Act will commence on the day on which it receives Royal Assent.

 

  1. Object

The object of this Act is to enable the Murray-Darling Basin Authority to:

(a)     be granted and to take on full responsibility for the management of all water resources of the Basin as a single system, during periods of extreme crisis.

(b)    be granted and exercise broader powers in the management of floodwaters and waters from significant rainfall events.

 

  1. Constitutional basis for Act

As this Act would require the transference of powers from the states to the national body, The Murray-Darling Basin Authority, this clause specifies the extended application of Commonwealth legislative powers to meet the objects of this Act.

 

  1. Interaction with the Water Act

This provides that the sections 11, 12 and 13 (regarding the Constitution, application to the Crown and the Native Title Act 1993 ) of the Water Act apply as if they were a part of this Act.

 

  1. Inconsistent Commonwealth Laws

This clause provides that, subject to section 5, if a provision of this Act is inconsistent with a provision of any other law of the Commonwealth, the relevant provision of this Act has effect.

 

  1. Interpretation

Within this Act, the Water Act represents the Water Act 2007 and water plan, arrangement or agreement is to be read as meaning any plan, arrangement or agreement deal with or provided for under the Water Act, including the Basin Plan, any interstate sharing agreement, any state or local plans and any arrangement that affects the way that water entitlements and allocations may be traded.

 

  1. Regulations

This clause provides that the Governor-General may make regulations prescribing matters required or permitted by this Act to be prescribed; or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

 

Part 2 - Declaration of period of extreme crisis

 

  1. Extreme crisis

Section 9 sets out the definitions for when a period of extreme crisis is considered to have begun and ended.

 

Subsection 2 states that a period of extreme crisis exists when the level of water in Lake Alexandrina is continuously less than + 0.0 Australian Height Datum (AHD) for more than 3 consecutive months, or when allocations to high security water entitlement holders in any irrigation district have been below 20 percent for more than 2 consecutive years.

 

Subsection 3 states that the period of extreme crisis is considered to have ended when the level of water in Lake Alexandrina has returned to a level continuously above +0.4 AHD for 3 consecutive months, or when allocations to those high security water entitlement holders have retuned to a level above 40 percent in any year.

 

In situations where the level of water in Lake Alexandrina is continuously less than + 0.0 Australian Height Datum (AHD) for more than 3 consecutive months and when allocations to high security water entitlement holders in any irrigation district have been below 20 percent for more than 2 consecutive years, then the period of extreme crisis does not end until both the criteria for the end of a period of extreme crisis have been met.

 

  1. Chief Executive's advice

Under subsections 1, 2 and 3, once a situation of extreme crisis is assessed to have occurred (or ended), the Chief Executive of the Murray-Darling Basin Authority must advise the Minister in writing of this situation and publish this advice on the Authority's website, and this advice must include the basis for the assessment by the Authority.

 

  1. Advice to the Minister

Within 14 days of receiving advice from the Murray-Darling Basin Authority, subsection 1 requires that the Minister must either make a declaration that the Basin has entered a period of extreme crisis or give reason why the Minister does not believe it is necessary or appropriate to make such a declaration, in which case the Minister must provide and publish reasons.

 

Similarly, under subsection 2, if the Chief Executive of the Murray-Darling Basin Authority advises the Minister that a period of extreme crisis has ended, the Minister must either make a declaration that the period of extreme crisis has ended or give reason why the Minister does not believe it is the case, in which case it must provide and publish reasons.

 

Subsection 3 allows that before declaring that a period of extreme crisis has been entered or has ended, the Minister may seek further information from the Murray-Darling Basin Authority.

 

Under subsection 4, if the Chief Executive of the Murray-Darling Basin Authority has advised the Minister that the Basin has entered a period of extreme crisis and the Minister does not make a declaration in line with this, but after a period of 6 months from the date of advice the Chief Executive assess that the period of extreme crisis continues to exist, then the Chief Executive must again provide advice to the Minister.

 

  1. Declaration of extreme crisis

This section allows the Minister to, by legislative instrument, declare that the Basin has entered a period of extreme crisis.

 

  1. Declaration of end of crisis

This section allows the Minister to, by legislative instrument, declare that the period of extreme crisis has ended and therefore the transference of powers to the Murray-Darling Basin is no longer in force.

 

Part 3 - Crisis powers / Division 1 - Application, objects and effect of Part

 

  1. Application of Part

This provides that this Part applies while the declaration of a period of extreme crisis is in force.

 

  1. Objects of Part

The Objects of the Part are to give the Murray-Darling Basin Authority overall control of the water resources in the Basin to address the crisis, including by making decisions with respect to groundwater and surface water allocation decisions as required.

 

These decisions may be made for system maintenance and to maintain river heights at a minimum level; for the environment, for salinity management and for water users and holders of water access entitlements or water access rights.

 

It also empowers the Authority to share, manage and allocate basin water resources and manage all processes that may adversely affect the amount of water likely to flow through the Basin, including making allocations to entitlement holders and/or allowing the diversion of water from flood-affected States or where there is significant rainfall.

 

  1. Effect of Part

This clause provides states that the powers and functions of the Authority are expanded in accordance with Division 2 and that the Water Act and other laws have effect subject to this Part.

 

Subsections 3 and 4 of this clause state that where a provision or any other law is inconsistent with this Part, or with action taken by the Minister or the Authority under this Part or a part of any water plan, arrangement or agreement, that that provision is of no effect and this Part effectively overrides those provisions.

 

Part 4 - Crisis powers / Division 2 - Crisis powers and functions of Authority

 

  1. Authority to manage Basin water resources

Subsection 1 gives the power to the Chief Executive of the Murray-Darling Basin Authority to may make directions in relation to the management of any or all of the water resources within, or beneath, the Murray-Darling Basin.

 

Subsection 2 states that these directions may deal with matters including water sharing arrangements, water allocation arrangements, storage management, water accounting rules, rules for arrangements for sale, purchase or movement of water among Basin states, the allocation of water for essential system maintenance, conveyance and environmental purposes or any other matter necessary to give effect to the objects of this Part.

 

Subsection 4 states that this declaration in itself is not a legislative instrument. This provision is merely declaratory. These instruments are not legislative in character, and apply to the individual circumstances of the agreements to which they relate.

 

  1. Authority may suspend or vary agreements etc

Section 18 provides that the Chief Executive, in order to manage the system as a single system, may make declarations in writing suspending, varying or replacing any water plan, arrangement or agreement so to ensure it is not impeded in its capacity to manage the Basin's water resources.

 

These declarations must specify the instrument, or class of instruments, affected and the period during which the instrument, or class of instruments, is to be suspended, varied or replaced, or a method of determining that period.

 

Subsection 4 states that this declaration in itself is not a legislative instrument. This provision is merely declaratory. These instruments are not legislative in character, and apply to the individual circumstances of the agreements to which they relate.

 

  1. Powers of Authority in relation to implementation and compliance

The Authority is responsible for implementing and ensuring compliance with any direction or declaration made under this Part.

 

  1. General powers of Authority

This clause provides that the Authority has the power to do all things necessary or convenient to enable its function under this Act.

 

  1. Matters to which Authority must have regard

This clause states that in making a direction or declaration under this Part, the Chief Executive of the Murray-Darling Basin Authority must have regard to the objects of this Act, the principles as set out in the National Water Initiative, critical human water needs, environmental needs and obligations, both domestic and international, community needs, the importance of efficient market processes in determining the most appropriate way to use water, the importance to the economy and communities, international agreements, the possibility that all or some part of the Basin may be experiencing adverse climate change, the need for economically-efficient water use and investment, any other benefits available to particular users of Basin water resources, the need to prevent activities that contribute to the improper use, storage and diversion of water, and any other matters which the Authority considers it necessary to have regard to.