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Emergency Water (Murray-Darling Basin Rescue) Bill 2008

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(Circulated by authority of Senator N Xenophon)





  1. Background

The purpose of this bill is to ensure the environmental and economic sustainability of the Murray-Darling Basin by empowering the Minister and the Murray-Darling Basin Authority ( the Authority ) to establish an Interim Basin Plan as an emergency measure, until such time that a Basin Plan is adopted under the Water Act 2007.  In so doing, the Minister is empowered to make decisions about how best to allocate water for system maintenance, to the environment, to water users and holders of a water access entitlement of a water access right, and to share, manage and allocate the Basin water resources as well as manage all processes that may adversely affect them.


  1. Commencement

This Act commences on the day on which it receives the Royal Assent.


  1. Objects

The objects of the Act are to empower the Minister and the Authority to address the current crisis affecting the Murray-Darling Basin as an emergency measure as outlined above.  


  1. Interpretation

Clause 4 refers the interpretation of words in this bill back to the Water Act 2007.


  1. Schedule(s)

Clause 5 provides for schedules amending existing legislation (see Schedule 1 below). 


  1. Powers of Minister in relation to management of Basin Water Resources

Clause 6 provides the Minister with the powers required to determine whether an Interim Basin Plan is required as an emergency measure to apply until such time that he or she approves a Basin Plan consistent with the Water Act 2007.


  1. Where the Minister has determined that such a plan is required, clause 7 of the bill empowers the Minister to direct the Authority to prepare an Interim Basin Plan.  It provides that where such a direction is given, the Authority must prepare an Interim Basin Plan within 30 days of that direction.  An Interim Basin Plan prepared by the Authority must include any determination made by the Minister under clause 9, 10 or 11 of the bill.


  1. Approval of Interim Basin Plan

Clause 8 empowers the Minister to approve an Interim Basin Plan prepared by the Authority either in its original form or in an amended form.  It also empowers the Minister to approve an alternative Interim Basin Plan.  Where the Minister amends the Authority’s Interim Basin Plan or prepares an alternative Interim Basin Plan, he or she must consult the Authority.  In these circumstances, the Minister is also required to table an explanation of the reason(s) why he or she did not approve the Interim Basin Plan in its original form.


  1. Matters that may be determined by the Minister

Clause 9 provides matters that the Minister may determine in order to give effect to an Interim Basin Plan.  It also requires the Minister to have regard to matters set out in clause 12 when making a determination.


  1. Sharing Regime

Clause 10 relates to the allocation of water for essential system maintenance after an Interim Basin Plan is approved.  The purpose of this clause is to ensure that, in making a determination pursuant to subsection 9(1), the Minister determines the share of water that is needed to maintain essential system functions and to maintain water quality, the share of the remaining non-flood water to which a Basin State is entitled and the share, if any, to be granted to the environment as a clearly identifiable and inalienable entitlement to a water allocation in the water resource plan area.  One of the effects of this clause is to treat the Basin States and the environment as separate and distinct shareholders of Basin water resources.


  1. Activities inconsistent with international agreements

Clause 11 enables the Minister to determine that certain activities are inconsistent with relevant international agreements as defined in the Water Act 2007.


  1. Matters to which Minister must have regard when making a determination

Clause 12 provides matters to which the Minister must have regard when making a determination under the bill.  These include, the principles set out in the National Water Initiative, critical human needs, environmental needs and obligations including international obligations, community needs, efficient market processes, maintaining permanent plantings, relevant international agreements, the effects of adverse climate change and the need for any adjustment burden to be shared equitably across the Murray-Darling Basin,  the need for economically efficient water use and investment, other benefits available to particular users of the Basin water resources, the need to prevent activities that contribute to the improper use, storage and diversion of water and any other matter which the Minister considers necessary.


  1. Constitution of Authority for the purposes of implementing the bill

Clause 13 sets out the constitution of the Authority for the purposes of implementing the bill.  In addition to a Chair and 4 other members, the Authority is to include a Chief Executive Officer, and that position is provided for in Schedule 1 of the bill. 


Clause 13 also enables the Chair and members of the Authority (who may otherwise be appointed on a part-time basis under the Water Act 2007 ), to be appointed on a full-time basis for the purposes of developing and implementing an Interim Basin Plan.



  1. Powers of Authority in relation to implementation, compliance and enforcement of Interim Basin Plan

Clause 14 sets out that the Authority is responsible for implementing an Interim Basin Plan as approved by the Minister.  Further, it provides that for the purposes of investigating compliance with and enforcing an Interim Basin Plan, the Authority is to have the same enforcement powers as it has under the Water Act 2007 and the same enforcement powers as the ACCC and the Minister under the Water Act 2007, e xcept to the extent of any inconsistency.


  1. Trade and Commerce

Clause 15 provides that no natural person or agency of a State may limit or impede the transfer or sale and purchase of water access entitlements, water access rights and water allocations among Basin States.


  1. Inconsistent State or Territory actions

Clause 16 proscribes States and Territories from acting in a manner inconsistent with an Interim Basin Plan or a determination made in accordance with the provisions of the bill.


  1. Activities by constitutional corporations

Clause 17 outlines activities which constitutional corporations, their employees and agents are prohibited from undertaking without the consent of the Minister. Those activities all relate to impeding the flow of water from the Murray-Darling Basin or taking part in any activity that diverts or significantly intercepts water from the system.


  1. Acquisition of property

Clause 18 empowers the Minister to acquire a proportion or all of a water access entitlement and water access right in a water resource plan area or, any land associated with an acquired water access entitlement or an acquired water access right if appropriate, for the purposes of maintaining the reliability of water access entitlements and water access rights or returning water use to sustainable limits.


  1. Declaration of taxation schemes detrimental to management of Basin water resources

Clause 19 deals with taxation schemes that are detrimental to the management of Basin water resources.  It provides that the ACCC must inquire into the effects of arrangements in the Income Tax Assessment Act 1997 on the water market and into the nature of irrigation practice and investment and provide advice to the Minister based on the outcome of the inquiry.  Where the Minister determines that a taxation scheme is detrimental to the management of the Basin water resources, he or she is required to cause a copy of that determination to be provided to the Treasurer who, in turn, is required to prepare a response to the determination which must be laid before both Houses of Parliament within a specified timeframe.


  1. Failure to comply with Interim Basin Plan made under this Act

Clause 20 stipulates the effects of failing to comply with a determination made under the bill.  It provides the Minister with the power to assess the impact of the failure of any Basin State on other shareholders and the quantitative effect of that failure to comply on the Basin water resources and to reduce the Basin’s State share in the Basin water resources.  Where the Basin State continues to fail to comply with a determination, the Minister must apply for an injunction against the Basin State in accordance with the Water Act 2007.


  1. Inconsistent Commonwealth laws

Clause 21 provides that where a provision of the bill is inconsistent with a provision of any other law of the Commonwealth, the relevant provision of the bill prevails, and the other law is, to the extent of the inconsistency, invalid.


  1. Application of Legislative Instruments Act 2003

Clause 22 relates to the application of the Legislative Instruments Act 2003.


  1. Annual Reports by Minister

Clause 23 requires the Minister to prepare, and lay before each House of the Parliament, an annual report on the operation of the bill.


  1. Regulations

Clause 23 provides for the making of regulations.


Schedule 1

Schedule 1 amends the Water Act 2007 , for the purposes of appointing a Chief Executive Officer to the Authority.  It sets out the duties of the Chief Executive Officer as well as all other matters related to his or her appointment.