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This is a Bill, not an Act. For current law, see the Acts databases.
2004-2005-2006-2007
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Water Bill 2007
No. , 2007
(Environment and Water Resources)
A Bill for an Act to make provision for the management of the water resources of the Murray-Darling Basin, and to make provision for other matters of national interest in relation to water and water information, and for related purposes
Water Bill 2007 No. , 2007
Water Bill 2007 No. , 2007
Contents
Part 1--Preliminary 2
Division 1--General 2
1 Short title 2
2 Commencement 2
3 Objects 3
4 Definitions 4
5 Referring States 20
6 Planned environmental water 23
7 Infrastructure operators etc. 24
8 River flow control works 24
9 Constitutional basis for Act 25
10 Basis for Basin water charge, water trading and water market rules 26
11 Reading down provision in relation to the operation of sections 99 and 100 of the Constitution 27
12 Application to Crown etc. 28
13 The Native Title Act 1993 not affected 29
Division 2--Interaction between Commonwealth water legislation and State laws 30
14 Coverage of this Division 30
15 Concurrent operation intended 30
16 Commonwealth water legislation does not apply to matters declared by State law to be an excluded matter 31
17 Avoiding direct inconsistency arising between the Commonwealth water legislation and State laws 32
18 Regulations may modify operation of the Commonwealth water legislation to deal with interaction between that legislation and State laws 33
Part 2--Management of Basin water resources 35
Division 1--Basin Plan 35
Subdivision A--Introduction 35
19 Simplified outline 35
Subdivision B--Basin Plan, its purpose and contents 35
20 Purpose of Basin Plan 35
21 General basis on which Basin Plan to be developed 36
22 Content of Basin Plan 38
23 Long-term average sustainable diversion limits 46
24 Temporary diversion provision 47
25 Water quality and salinity management plan 48
26 Water trading and transfer rules 49
27 Basin Plan to be published on Authority's website 50
Subdivision C--Environmental management 50
28 Environmental watering plan 50
29 Authority to consult holders and managers of environmental water in implementing environmental watering plan 52
30 Environmental watering schedules 52
31 Authority to coordinate delivery of environmental water 52
32 Authority to identify and account for held environmental water 52
Subdivision D--Effect of Basin Plan 53
33 Basin Plan is a legislative instrument 53
34 Effect of Basin Plan on Authority and other agencies of the Commonwealth 53
35 Effect of Basin Plan on other agencies and persons 53
36 Constitutional operation of section 35 (general) 54
37 Constitutional operation of section 35 (water trading rules) 55
38 Regulations may provide for exceptions 56
39 Obligations under both Basin Plan and water resource plans 56
40 Effect on State laws 57
Subdivision E--Procedure for making Basin Plan 57
41 Authority to prepare Basin Plan and give to Minister for adoption 57
42 Consultations by Authority in preparing Basin Plan 57
43 Authority to seek submissions on proposed Basin Plan 57
44 Minister may adopt Basin Plan 60
Subdivision F--Amendment of Basin Plan 61
45 Authority may prepare amendment of Basin Plan 61
46 Consultations by Authority in preparing amendment of Basin Plan 61
47 Authority to seek submissions on proposed amendment of Basin Plan 62
48 Minister may adopt amendment of Basin Plan 64
49 Minor or non-substantive amendments of Basin Plan 65
Subdivision G--Review of Basin Plan 66
50 Review of Basin Plan--general 66
51 Authority to prepare discussion paper and seek submissions 67
52 Review may lead to amendment of Basin Plan 69
Division 2--Water resource plans for particular water resource plan areas 70
Subdivision A--Introduction 70
53 Simplified outline 70
Subdivision B--Water resource plans 70
54 Water resource plans for water resource plan areas 70
55 Content of water resource plan 71
56 General basis for accrediting and making water resource plans 71
Subdivision C--Effect of a water resource plan 72
57 Water resource plan adopted under section 69 is a legislative instrument 72
58 Effect of water resource plan on Authority and other agencies of the Commonwealth 72
59 Effect of water resource plan on other agencies and bodies 72
60 Constitutional operation of section 59 (general) 73
61 Constitutional operation of section 59 (water trading rules) 74
62 Regulations may provide for exceptions 75
Subdivision D--Accrediting water resource plans prepared by Basin States 75
63 Accrediting water resource plans prepared by Basin States 75
64 Duration of accreditation 77
65 Accrediting amendments of accredited water resource plans 78
66 Accrediting minor or non-substantive amendments of accredited water resource plans 80
67 Authority may assist Basin State to prepare water resource plan 80
Subdivision E--Water resource plans prepared by Authority and adopted by Minister 80
68 Minister may request Authority to prepare water resource plan 80
69 Minister may adopt water resource plan 82
70 Duration of plan adopted under section 69 84
Subdivision F--Reporting obligations 84
71 Reporting obligations of Basin States 84
Division 3--Procedures to be followed before taking step-in action 86
72 Scope of Division 86
73 Procedure to be followed before exercising step-in power 86
Division 4--Allocation of risks in relation to reductions in water availability 91
Subdivision A--Risks arising from reductions in diversion limits 91
74 Simplified outline 91
75 Basin Plan to specify Commonwealth share of reduction in long-term average sustainable diversion limit 92
76 Commonwealth to manage Commonwealth share of reduction in diversion limit 93
77 Payments to water access entitlement holders 94
78 Applying Subdivision when transitional or interim water resource plan ends 97
79 Regulations 98
Subdivision B--Risks arising from other changes to Basin Plan 98
80 Simplified outline 98
81 Basin Plan to specify certain matters if Plan results in change in reliability of water allocations 99
82 Commonwealth to manage Commonwealth share of change in reliability 100
83 Payments to water access entitlement holders 101
84 Applying Subdivision when transitional or interim water resource plan ends 104
85 Regulations 105
86 Operation of Subdivision 105
Part 3--Audits by National Water Commission 107
87 Power to conduct audits 107
88 When audits must be conducted 107
89 Reports on audits 107
90 Tabling reports 107
Part 4--Basin water charge and water market rules 108
Division 1--Water charge rules 108
91 Regulated water charges 108
92 Water charge rules 109
93 Process for making water charge rules 112
94 Constitutional operation of water charge rules 113
95 ACCC to monitor water charges and compliance 114
96 Minister may formulate model water charge rules 114
Division 2--Water market rules 115
97 Water market rules 115
98 Process for making water market rules 117
99 Constitutional operation of water market rules 118
100 ACCC to monitor compliance 119
Part 5--Murray-Darling Basin Water Rights Information Service 120
101 Registrable water rights 120
102 Registers to which this Part applies 120
103 Murray-Darling Basin Water Rights Information Service 120
Part 6--Commonwealth Environmental Water Holder 122
Division 1--Establishment and functions 122
104 Establishment 122
105 Functions 122
106 Limitation on disposal of water and Commonwealth environmental water holdings 123
107 Limitation on directions to Commonwealth Environmental Water Holder 124
108 Meaning of Commonwealth environmental water holdings 124
109 Operating rules 125
110 Application of State laws to the Commonwealth Environmental Water Holder 125
Division 2--Environmental Water Holdings Special Account 127
111 Establishment of the Environmental Water Holdings Special Account 127
112 Credits of amounts to the Account 127
113 Purpose of the Account 128
Division 3--Reporting requirements 129
114 Annual report 129
Division 4--Appointment, staff and delegation 130
115 Appointment 130
116 Staff 130
117 Delegation 130
Part 7--Water information 131
Division 1--Application of this Part 131
118 Geographical application of this Part 131
119 Application of this Part limited to certain legislative powers 131
Division 2--Functions and powers of the Bureau and Director of Meteorology 132
120 Additional functions of the Bureau 132
121 Contents of the National Water Account 132
122 Publishing water accounts 132
123 Publishing water information 133
Division 3--Water information 134
124 Object of this Division 134
125 Meaning of water information etc. 134
126 Giving of water information to the Bureau 134
127 Director of Meteorology may require water information 135
128 Prohibitions on disclosure of information do not apply 136
129 Ownership etc. of information unaffected by its disclosure 136
Division 4--National Water Information Standards 137
130 National Water Information Standards 137
131 Adoption of other standards 137
132 Consultations in preparing National Water Information Standards 138
133 Compliance notices 138
Division 5--Miscellaneous 139
134 Delegation by Director of Meteorology 139
135 Directions by Minister 139
Part 8--Enforcement 140
Division 1--Preliminary 140
136 Contraventions to which this Part applies 140
137 Appropriate enforcement agency for contraventions to which this Part applies 140
138 References to Court 140
139 Jurisdiction of Federal Magistrates Court 141
Division 2--Injunctions 142
140 Injunctions for contravention of the Act, regulations or rules 142
141 Discharge or variation of injunctions 143
142 Certain considerations for granting injunctions not relevant 143
143 Powers conferred are in addition to other powers of the Court 144
Division 3--Declarations 145
144 Declarations of contravention 145
145 Discharge or variation of declarations 145
Division 4--Civil penalties 146
Subdivision A--Civil penalty orders 146
146 Civil penalty provisions 146
147 Court may order person to pay pecuniary penalty for contravening civil penalty provision 146
148 Contravening a civil penalty provision is not an offence 147
149 Persons involved in contravening civil penalty provision 148
150 Recovery of a pecuniary penalty 148
Subdivision B--Civil penalty proceedings and criminal proceedings 148
151 Civil proceedings after criminal proceedings 148
152 Criminal proceedings during civil proceedings 148
153 Criminal proceedings after civil proceedings 149
154 Evidence given in proceedings for penalty not admissible in criminal proceedings 149
Division 5--Infringement notices 150
155 Object 150
156 When an infringement notice can be given 150
157 Matters to be included in an infringement notice 150
158 Amount of penalty 151
159 Withdrawal of an infringement notice 152
160 Paying the penalty in accordance with the notice 152
161 Effect of this Division on civil proceedings 152
162 Regulations 153
Division 6--Enforceable undertakings 154
163 Acceptance of undertakings relating to contraventions to which this Part applies 154
164 Enforcement of undertakings 155
Division 7--Enforcement notices 156
165 Authority may issue an enforcement notice 156
166 Breach of enforcement notice--civil penalty provision 157
167 Discharge or variation of enforcement notices 158
Division 8--Liability of executive officers of corporations 159
168 Civil penalties for executive officers of bodies corporate 159
169 Did an executive officer take reasonable steps to prevent contravention? 159
Division 9--Conduct of directors, employees and agents 161
170 Conduct of directors, employees and agents 161
Part 9--Murray-Darling Basin Authority (administrative provisions) 164
Division 1--Authority's establishment, functions, powers and liabilities 164
171 Establishment 164
172 Authority's functions 164
173 Authority's powers 167
174 Authority's financial liabilities are Commonwealth liabilities 167
175 Minister may give directions to Authority 167
Division 2--Authority's constitution and membership 169
Subdivision A--Authority's constitution 169
176 Authority's constitution 169
Subdivision B--Authority's membership 169
177 Authority's membership 169
178 Appointment of Authority members 169
179 Period of appointment for Authority members 171
180 Acting Authority members 171
Subdivision C--Terms and conditions for Authority members 173
181 Remuneration 173
182 Standing obligation to disclose interests 173
183 Obligation to disclose interests before considering a particular matter 173
184 Chair must keep Minister informed 174
185 Outside employment 175
186 Member of the governing body of a relevant interest group 175
187 Leave of absence 175
188 Resignation 175
189 Termination of appointment 176
190 Other terms and conditions 176
Division 3--Decision-making and delegation by Authority 177
Subdivision A--Meetings 177
191 Holding of meetings 177
192 Presiding at meetings 177
193 Quorum 177
194 Decisions at meetings etc. 178
195 Conduct of meetings 178
196 Minutes 178
Subdivision B--Decisions without meetings 178
197 Decisions without meetings 178
198 Record of decisions 179
Subdivision C--Delegation 179
199 Delegation by Authority 179
200 Limits on how some functions and powers can be delegated 180
Subdivision D--Advisory committees 180
201 Basin Officials Committee 180
202 Basin Community Committee 181
203 Other advisory committees 183
204 Appointments to advisory committees 183
205 Procedural matters 184
Division 4--Authority's staff etc. 185
206 Staff 185
207 Persons assisting Authority 185
208 Chair not to be directed about certain matters 185
Division 5--Finance and reporting requirements 186
Subdivision A--Murray-Darling Basin Special Account 186
209 Murray-Darling Basin Special Account 186
210 Credits to the Account 186
211 Purposes of the Account 186
Subdivision B--Authority may charge fees 187
212 Fees 187
Subdivision C--Exemption from taxation and charges etc. 188
213 Exemption from taxation and charges etc. 188
Subdivision D--Reporting requirements 188
214 Annual report 188
Division 6--Confidentiality 190
215 Confidentiality 190
Part 10--Murray-Darling Basin Authority (special powers) 192
Division 1--Application of this Part 192
216 Application of this Part limited to certain legislative powers 192
Division 2--Entry onto land etc. 194
Subdivision A--Authorised officers 194
217 Appointment of authorised officers 194
218 Identity cards 194
Subdivision B--Powers to enter land etc. other than for compliance purposes 195
219 When authorised officers can enter premises 195
220 Obligations of authorised officers before entering premises 195
221 Powers of authorised officers while on premises 196
222 Duties of authorised officers 197
Subdivision C--Powers to enter land etc. for compliance purposes 198
223 Entering premises to monitor compliance 198
224 Entering premises to search for evidential material 198
225 Monitoring warrants 200
226 Contravention-related warrants 200
227 Contravention-related warrants by telephone, telex, fax etc. 201
228 Obligations of authorised officers--all cases 203
229 Obligations of authorised officers--entry by consent 204
230 Obligations of authorised officers--entry by warrant 204
231 Use of equipment at premises 205
232 Expert assistance to operate a thing 205
233 Compensation for damage 206
234 Offences relating to warrants 207
235 Subdivision does not apply to authorised officers who are contractors 208
Subdivision D--Other matters 208
236 Division not to abrogate privilege against self-incrimination 208
237 Occupier entitled to be present during entry 208
Division 3--Information gathering 209
238 Power to request information 209
239 Prohibitions on disclosure of information do not apply 210
Part 11--Transitional 211
Division 1--Management of Basin water resources (Part 2) 211
240 Reference to water resource plan area 211
241 Transitional water resource plans 211
242 Interim water resource plans 212
243 Transitional water resource plans taken to have been accredited 212
244 Interim water resource plans taken to have been accredited 213
245 Operation of transitional water resource plans and interim water resource plans 213
246 Amendment of transitional water resource plans and interim water resource plans 214
247 Authority may provide assistance 214
Division 2--Commonwealth Environmental Water Holder 216
248 The functions of the Commonwealth Environmental Water Holder prior to Basin Plan taking effect 216
249 Disposals of water or Commonwealth water holdings prior to Basin Plan taking effect 216
Division 3--Murray-Darling Basin Authority 217
250 First annual report for Authority 217
Part 12--Miscellaneous 218
251 Delegation by Minister 218
252 Instruments not invalid for failure to publish on website 219
253 Review of operation of Act 219
254 Compensation for acquisition of property 220
255 Act does not authorise compulsory acquisition of water access rights 220
256 Regulations 221
Schedule 1--The Murray-Darling Basin 222
Schedule 2--Basin water charging objectives and principles 223
Part 1--Preliminary 223
1 Objectives and principles 223
Part 2--Water charging objectives 224
2 Water charging objectives 224
Part 3--Water charging principles 225
3 Water storage and delivery 225
4 Cost recovery for planning and management 226
5 Environmental externalities 226
6 Benchmarking and efficiency reviews 226
Schedule 3--Basin water market and trading objectives and principles 228
1 Definitions 228
2 Objectives and principles 228
3 Basin water market and trading objectives 229
4 Basin water market and trading principles 229
Schedule 4--Transitional water resource plans 233
Part 12 Miscellaneous
Section 254
Miscellaneous Part 12
Section 256
Water Bill 2007 No. , 2007
Water Bill 2007 No. , 2007
Water Bill 2007 No. , 2007
A Bill for an Act to make provision for the management of the water resources of the Murray-Darling Basin, and to make provision for other matters of national interest in relation to water and water information, and for related purposes
The Parliament of Australia enacts:
Part 1--Preliminary
Division 1--General
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.
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table
The day on which this Act receives the Royal Assent.
2. Sections 3 to 256 and Schedules 1 to 4
A day or days to be fixed by Proclamation.
However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.
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.
Division 2--Interaction between Commonwealth water legislation and State laws
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.
Part 2--Management of Basin water resources
Division 1--Basin Plan
Subdivision A--Introduction
19 Simplified outline
(1) This section sets out a simplified outline of this Part.
(2) There is to be a Basin Plan for the management of the Basin water resources. The Basin Plan will provide for limits on the quantity of water that may be taken from the Basin water resources as a whole and from the water resources of each water resource plan area. It will also provide for the requirements to be met by the water resource plans for particular water resource plan areas (these water resource plans are dealt with in Division 2).
(3) The Authority must prepare a Basin Plan and give it to the Minister for adoption. The Minister may adopt the Basin Plan without modification or direct the Authority to modify the Plan.
(4) The Authority may prepare amendments of the Basin Plan and give them to the Minister for adoption. The Minister may adopt the amendments of the Basin Plan without modifications or direct the Authority to modify the amendments.
(5) The Authority must review the Basin Plan at least every 10 years (or sooner if the Minister or all the Basin States request).
Subdivision B--Basin Plan, its purpose and contents
20 Purpose of Basin Plan
The purpose of the Basin Plan is to provide for the integrated management of the Basin water resources in a way that promotes the objects of this Act, in particular by providing for:
(a) giving 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
(b) the establishment and enforcement of environmentally sustainable limits on the quantities of surface water and ground water that may be taken from the Basin water resources (including by interception activities); and
(c) Basin-wide environmental objectives for water-dependent ecosystems of the Murray-Darling Basin and water quality and salinity objectives; and
(d) the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes; and
(e) water to reach its most productive use through the development of an efficient water trading regime across the Murray-Darling Basin; and
(f) requirements that a water resource plan for a water resource plan area must meet if it is to be accredited or adopted under Division 2; and
(g) improved water security for all uses of Basin water resources.
21 General basis on which Basin Plan to be developed
Basin Plan to implement international agreements
(1) The Basin Plan (including any environmental watering plan or water quality and salinity management plan included in the Basin Plan) must be prepared so as to provide for giving effect to relevant international agreements (to the extent to which those agreements are relevant to the use and management of the Basin water resources).
(2) Without limiting subsection (1), the Basin Plan must:
(a) be prepared having regard to:
(i) the fact that the use of the Basin water resources has had, and is likely to have, significant adverse impacts on the conservation and sustainable use of biodiversity; and
(ii) the fact that the Basin water resources require, as a result, special measures to manage their use to conserve biodiversity; and
(b) promote sustainable use of the Basin water resources to protect and restore the ecosystems, natural habitats and species that are reliant on the Basin water resources and to conserve biodiversity.
Note: See Articles 7 and 8 of the Biodiversity Convention.
(3) Without limiting subsection (1), the Basin Plan must also:
(a) promote the wise use of all the Basin water resources; and
(b) promote the conservation of declared Ramsar wetlands in the Murray-Darling Basin.
Note: See Article 3 of the Ramsar Convention.
Basis on which Basin Plan to be developed
(4) Subject to subsections (1), (2) and (3), the Authority and the Minister must, in exercising their powers and performing their functions under this Division:
(a) take into account the principles of ecologically sustainable development; and
(b) act on the basis of the best available scientific knowledge and socio-economic analysis; and
(c) have regard to the following:
(i) the National Water Initiative;
(ii) the consumptive and other economic uses of Basin water resources;
(iii) the diversity and variability of the Basin water resources and the need to adapt management approaches to that diversity and variability;
(iv) the management objectives of the Basin States for particular water resources;
(v) social, cultural, Indigenous and other public benefit issues;
(vi) broader regional natural resource management planning processes;
(vii) the effect, or potential effect, of the Basin Plan on the use and management of water resources that are not Basin water resources;
(viii) the effect, or the potential effect, of the use and management of water resources that are not Basin water resources on the use and management of the Basin water resources; and
(ix) the State water sharing arrangements.
Note 1: Paragraph (b): the best available scientific knowledge includes the best available systems for accounting for water resources.
Note 2: An example of a management objective referred to in subparagraph (c)(iv) might be preservation of the natural values of a river system through no development or minimal development.
Note 3: See also subsection 25(3) (which deals with the water quality and salinity management plan).
Basin Plan not to reduce protection of planned environmental water provided for under existing State water management laws
(5) The Basin Plan must ensure that there is no net reduction in the protection of planned environmental water from the protection provided for under the State water management law of a Basin State immediately before the Basin Plan takes effect.
Basin Plan not to be inconsistent with Snowy Water Licence
(6) The Basin Plan must not be inconsistent with the provisions of the licence issued under section 22 of the Snowy Hydro Corporatisation Act 1997 of New South Wales.
(7) In applying subsection (6), a variation of the licence after the commencement of Part 2 of this Act is to be disregarded unless the variation is prescribed by the regulations for the purposes of this subsection.
22 Content of Basin Plan
Mandatory content of Basin Plan
(1) The Basin Plan must include the matters set out in the following table:
Mandatory content of Basin Plan
Item
Matter to be included
Specific requirements
1
A description of the Basin water resources and the context in which those resources are used.
The description must include information about:
(a) the size, extent, connectivity, variability and condition of the Basin water resources; and
(b) the uses to which the Basin water resources are put (including by Indigenous people); and
(c) the users of the Basin water resources; and
(d) the social and economic circumstances of Basin communities dependent on the Basin water resources.
2
An identification of the particular areas that are to be water resource plan areas for the purposes of this Act and the periods that are to be the water accounting periods for each of those areas.
The Basin Plan may also provide that an area is to be a water resource plan area for the purposes of this Act from the time specified in the Basin Plan. The time may be specified as a particular date, as the time when particular conditions are satisfied or particular circumstances start to exist or in any other way. If the Basin Plan includes a provision to this effect, the area is a water resource plan area only from the time specified in the Basin Plan.
The identification must specify one or more of the following as the water resources to which any water resource plan for the area will apply:
(a) all (or a specified part or share) of the surface water in a particular area;
(b) all (or a specified part or share) of the ground water beneath a particular area;
(c) all (or a specified part) of a particular watercourse, lake or aquifer.
A reference in this Act to the water resources of the water resource plan area is a reference to the water resources identified as the ones to which the water resource plan applies.
The water resource plan areas in a State, and the water accounting periods for those areas, that are identified in the Basin Plan must, as far as possible, be aligned with the areas and accounting periods provided for in or under the State water management law of that State. However, this does not prevent the Basin Plan identifying an area as a water resource plan area if none of that area falls within an area provided for in or under the State water management law of that State.
The Authority must consult a State before the Basin Plan identifies as a water resource plan area an area none of which falls within an area provided for in or under the State water management law of that State.
3
An identification of the risks to the condition, or continued availability, of the Basin water resources.
The risks dealt with must include the risks to the availability of Basin water resources that arise from the following:
(a) the taking and use of water (including through interception activities);
(b) the effects of climate change;
(c) changes to land use;
(d) the limitations on the state of knowledge on the basis of which estimates about matters relating to Basin water resources are made.
4
Management objectives and outcomes to be achieved by the Basin Plan.
The objectives and outcomes must be consistent with purposes set out in section 20.
The objectives and outcomes must address:
(a) environmental outcomes; and
(b) water quality and salinity; and
(c) long-term average sustainable diversion limits and temporary diversion limits; and
(d) trading in water access rights.
5
The strategies to be adopted to manage, or address, the risks identified under item 3.
The strategies must relate to the management of Basin water resources.
6
The maximum long-term annual average quantities of water that can be taken, on a sustainable basis, from:
(a) the Basin water resources as a whole; and
(b) the water resources, or particular parts of the water resources, of each water resource plan area.
The averages are the long-term average sustainable diversion limits for the Basin water resources, and the water resources, or particular parts of the water resources, of the water resource plan area.
The limit must comply with section 23.
Section 75 requires particular matters to be specified in the Basin Plan if a long-term average sustainable diversion limit for the water resources, or a particular part of the water resources, of a water resource plan area is reduced.
7
For the water resources, or particular parts of the water resources, of each water resource plan area, the long-term annual average quantities of water that may, on a temporary basis, be taken year by year from the water resources, or particular parts of the water resources, in addition to the long-term average sustainable diversion limit for those water resources or that particular part.
The average is the temporary diversion provision for those water resources or that particular part.
The sum of:
(a) the long-term average sustainable diversion limit; and
(b) the temporary diversion provision;
for those water resources or that particular part is the long-term annual diversion limit for those water resources or that particular part.
The temporary diversion provision must comply with section 24.
8
The method for determining whether the long-term annual diversion limit for the water resources, or a particular part of the water resources, of a water resource plan area has been complied with (whether in relation to a particular water accounting period or over a longer period) and the extent of any failure to comply with that limit.
The method must include provision for accounting for any trading, or transfer, of tradeable water rights.
9
An environmental watering plan.
The environmental watering plan must comply with section 28.
10
A water quality and salinity management plan.
The water quality and salinity management plan must comply with section 25.
11
The requirements that a water resource plan for a water resource plan area must comply with for it to be accredited or adopted under Division 2.
The requirements must relate to matters that are relevant to the sustainable use and management of the water resources of the water resource plan area.
Subsection (3) provides that certain matters must be included in the requirements.
12
Rules for the trading or transfer of tradeable water rights in relation to Basin water resources.
See also section 26.
The rules must contribute to achieving the Basin water market and trading objectives and principles that are set out in Schedule 3.
Without limiting the matters that the rules may deal with, the rules must deal with the trading or transfer between Basin States of tradeable water rights in relation to Basin water resources.
13
A program for monitoring and evaluating the effectiveness of the Basin Plan.
The program must include the principles to be applied and the framework to be used to monitor and evaluate the effectiveness of the Basin Plan.
The program must include reporting requirements for the Commonwealth and the Basin States.
The program must include 5 yearly reviews of:
(a) the water quality and salinity targets in the water quality and salinity management plan; and
(b) the environmental watering plan.
(2) Areas identified as water resource plan areas under item 2 of the table in subsection (1) may overlap.
Note: Although the areas may overlap, they may relate to different water resources within the common area.
(3) Without limiting item 11 of the table in subsection (1), the requirements specified under that item for a water resource plan for a water resource plan area must include requirements in relation to:
(a) the identification of the water resource plan area; and
(b) the incorporation, and application, of the long-term annual diversion limit for the water resources of the water resource plan area; and
(c) the sustainable use and management of the water resources of the water resource plan area within that diversion limit; and
(d) the regulation, for the purposes of managing Basin water resources, of interception activities with a significant impact (whether on an activity-by-activity basis or cumulatively) on those water resources; and
(e) planning for environmental watering; and
(f) water quality and salinity objectives for the water resource plan area; and
(g) the circumstances in which tradeable water rights in relation to the water resource plan area may be traded, or transferred, and the conditions applicable to such trades or transfers; and
(h) broad approaches to the way risks to the water resources of the water resource plan area should be addressed; and
(i) metering the water taken from the water resources of the water resource plan area and monitoring the water resources of the water resource plan area; and
(j) reviews of the water resource plan and amendments of the plan arising from those reviews; and
(k) the scientific information or models on which the water resource plan is to be based.
The requirements in relation to the matters referred to in paragraph (g) must contribute to achieving the Basin water market and trading objectives and principles that are set out in Schedule 3.
(4) The requirements referred to in a paragraph in subsection (3) need not apply in relation to the water resource plan for a water resource plan area if those requirements are not relevant to the water resource plan area given the management objectives for the area.
Note: If the management objective for the area is to preserve the natural values of a river system through no development, some of the requirements that relate to the use and management of the water resources of the water resource plan area may be irrelevant.
(5) The requirements specified under item 11 of the table in subsection (1) may include a requirement for a water resource plan to provide for the metering of stock and domestic water use only to the extent that such metering is necessary for the effective management of the Basin water resources.
Note: Metering may, for example, be necessary for the effective management of the Basin water resources where a particular ground water resource is under stress or where there are local disputes about water sharing.
(6) To avoid doubt:
(a) there may be different requirements under item 11 of the table in subsection (1) for different kinds of water resource plan areas or to meet different management objectives; and
(b) a requirement under that item may be one that, in accordance with its terms, does not apply to a particular water resource plan area or applies only to a limited extent.
(7) The requirements referred to in paragraph (3)(d):
(a) may require that interception activities with, or with the potential to have, significant impacts on the water resources of the water resource plan area are assessed to determine whether they are consistent with the water resource plan before they are approved under:
(i) any other laws of a Basin State; or
(ii) a particular law of a Basin State; and
(b) may require that water access rights be held for specified kinds of interception activities.
Other matters that may be included in Basin Plan
(8) The Basin Plan may also include any other matters prescribed by the regulations for the purposes of this subsection.
Matters that may not be dealt with by the Basin Plan
(9) The provisions of the Basin Plan have effect only to the extent to which they relate to a matter that is relevant to the use or management of Basin water resources.
(10) A provision of the Basin Plan has no effect to the extent to which the provision directly regulates:
(a) land use or planning in relation to land use; or
(b) the management of natural resources (other than water resources); or
(c) the control of pollution.
(11) For the purposes of subsection (10), a provision directly regulates a matter referred to in paragraph (10)(a), (b) or (c) if the provision:
(a) prohibits a person (including an agency of a State) from undertaking an activity in relation to that matter (either absolutely or unless the person satisfies particular conditions); or
(b) requires a person (including an agency of a State) to undertake an activity in relation to that matter; or
(c) requires a person (including an agency of a State) who undertakes an activity in relation to that matter to carry that activity out in a particular way; or
(d) imposes an obligation on a person (including an agency of a State) in relation to the carrying out of an activity in relation to that matter, including an obligation to obtain consent or approval in relation to that matter; or
(e) imposes an obligation on a person (including an agency of a State) in connection with the performance of a function relating to a matter referred to in paragraph (a), (b), (c) or (d), including by obliging the person to impose such an obligation on another person or agency.
This subsection does not limit subsection (10).
(12) Subsections (10) and (11) do not prevent a provision of the Basin Plan having effect to the extent to which it:
(a) imposes a requirement of the kind referred to in subsection (7); or
(b) sets targets under section 25 or 28; or
(c) imposes a requirement to report on steps taken by a State to meet targets set in the Basin Plan.
23 Long-term average sustainable diversion limits
(1) A long-term average sustainable diversion limit for the Basin water resources, for the water resources of a particular water resource plan area or for a particular part of those water resources must reflect an environmentally sustainable level of take.
(2) A long-term average sustainable diversion limit for the Basin water resources, for the water resources of a particular water resource plan area or for a particular part of those water resources may be specified:
(a) as a particular quantity of water per year; or
(b) as a formula or other method that may be used to calculate a quantity of water per year; or
(c) in any other way that the Authority determines to be appropriate.
24 Temporary diversion provision
(1) The purpose of a temporary diversion provision for the water resources of a water resource plan area (or for a particular part of those water resources) is to provide for a transition period to minimise social and economic impacts when the long-term average sustainable diversion limit for those water resources (or that part of those resources) is lower than the long-term average quantity of water that has in fact been being taken from those water resources (or that part of those water resources).
(2) The temporary diversion provision for the water resources of a water resource plan area (or for a particular part of those water resources) may be specified:
(a) as a particular quantity of water per year; or
(b) as a formula or other method that may be used to calculate a quantity of water per year; or
(c) in any other way that the Authority determines to be appropriate.
(3) The temporary diversion provision for the water resources of a water resource plan area (or for a particular part of those water resources) may be zero.
(4) The temporary diversion provision for the water resources of a water resource plan area (or for a particular part of those water resources) may be different for different years.
(5) The temporary diversion provision for the water resources of a water resource plan area (or for a particular part of those water resources) that is not zero must reduce to zero by the end of the period of 5 years starting at the beginning of the first year for which a temporary diversion provision that is not zero has effect.
(6) A fresh determination of a temporary diversion provision that is not zero must not be made in relation to the water resources of a water resource plan area (or a particular part of those water resources) unless the long-term average sustainable diversion limit for those water resources (or that part of those water resources) is reduced by more than 5%.
(7) If a fresh determination of a temporary diversion provision that is not zero is made under subsection (6) for:
(a) the water resources of a water resource plan area; or
(b) a particular part of those water resources;
the temporary diversion provision for those water resources (or that part of those water resources) must reduce to zero by the end of the period of 5 years starting at the beginning of the first year to which the new long-term average sustainable diversion limit for those water resources (or that part of those water resources) has effect.
25 Water quality and salinity management plan
(1) The water quality and salinity management plan must:
(a) identify the key causes of water quality degradation in the Murray-Darling Basin; and
(b) include water quality and salinity objectives and targets for the Basin water resources.
(2) Without limiting paragraph (1)(b), a salinity target referred to in that paragraph:
(a) may specify the place at which the target is to be measured; and
(b) may specify a target in terms of a particular level of salinity being met for a particular percentage of time.
(3) In exercising their powers and performing their functions under this Division in relation to the water quality and salinity management plan, the Authority and the Minister must have regard to the National Water Quality Management Strategy endorsed by the Natural Resource Management Ministerial Council.
Note: A copy of the National Water Quality Management Strategy may be found on the Department's website.
26 Water trading and transfer rules
(1) The provisions included in the Basin Plan under item 12 of the table in subsection 22(1) (the water trading rules) may deal with the following matters:
(a) the rules governing the trading or transfer of tradeable water rights;
(b) the terms on which tradeable water rights are traded or transferred;
(c) the processes by which tradeable water rights are traded or transferred;
(d) the imposition or removal of restrictions on, and barriers to, the trading or transfer of tradeable water rights;
(e) restrictions on taking or using water from a water resource as a result of the trading or transfer of tradeable water rights in relation to that water resource;
(f) the manner in which particular kinds of trading or transfer of tradeable water rights is conducted;
(g) the specification of areas within which particular tradeable water rights may be traded or transferred;
(h) the availability of information to enable the trading or transfer of tradeable water rights;
(i) the reporting of the trading or transfer of tradeable water rights;
(j) any matter that was dealt with in:
(i) Schedule E to the MDB Agreement (other than paragraph 15(3)(c) of that Schedule); or
(ii) the Protocols to the MDB Agreement made under Schedule E to that Agreement (other than the Protocol on Access and Exit Fees);
immediately before the commencement of this Part.
(2) Without limiting paragraph (1)(d), the water trading rules may:
(a) prohibit some types of restrictions on, or barriers to, the trading or transfer of tradeable water rights; and
(b) impose or allow other types of restrictions on, or barriers to, the trading or transfer of tradeable water rights.
(3) Without limiting paragraph (1)(h) or (i), the water trading rules may provide for the use of registers to provide information about the trading or transfer of tradeable water rights.
(4) Without limiting subsection (1), particular water trading rules may be limited to one or more of the following:
(a) particular kinds of trading or transfer (for example, exchange rate trade or tagged trade); or
(b) the trading or transfer or particular kinds of tradeable water rights; or
(c) the trading or transfer of tradeable water rights in relation to particular water resources.
(5) Without limiting subsection (1), the water trading rules may provide that a person who suffers loss or damage as a result of conduct of another person that contravenes the water trading rules may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
27 Basin Plan to be published on Authority's website
(1) The Authority must publish on its website a copy of the Basin Plan that is in effect.
(2) The Basin Plan published under subsection (1) is to be the Plan as amended from time to time.
(3) If the Basin Plan is amended, the Authority must also publish on its website a copy of the Basin Plan as in force immediately before the amendment and indicate on the website the period for which that version of the Basin Plan was in force.
Subdivision C--Environmental management
28 Environmental watering plan
(1) The purposes of the environmental watering plan are:
(a) to safeguard existing environmental water; and
(b) to plan for the recovery of additional environmental water; and
(c) to coordinate the management of:
(i) existing environmental water; and
(ii) the additional environmental water that is recovered;
in order to:
(d) protect and restore the wetlands and other environmental assets of the Murray-Darling Basin; and
(e) protect biodiversity dependent on the Basin water resources and achieve other environmental outcomes for the Murray-Darling Basin.
(2) The environmental watering plan must specify:
(a) the overall environmental objectives for the water-dependent ecosystems of the Murray-Darling Basin; and
(b) targets by which to measure progress towards achieving the environmental objectives specified in accordance with paragraph (a); and
(c) an environmental management framework for planned environmental water and held environmental water; and
(d) the methods to be used to identify environmental assets in the Murray-Darling Basin that will require environmental watering; and
(e) the principles to be applied, and methods to be used, to determine the priorities for applying environmental water (including applying that water to environmental assets that are identified using the methods specified under paragraph (d)); and
(f) the principles to be applied in environmental watering.
(3) Without limiting paragraph (2)(b), the environmental watering plan may specify targets for one or more of the following:
(a) water resource health;
(b) water flows;
(c) water pressure;
(d) water levels.
The targets may relate to the Basin water resources as a whole or to particular Basin water resources.
(4) In preparing the environmental watering plan, the Authority must have regard to any other programs for water recovery and environmental watering in the Murray-Darling Basin.
29 Authority to consult holders and managers of environmental water in implementing environmental watering plan
The Authority must, in implementing the environmental watering plan, consult:
(a) holders of held environmental water; and
(b) owners of environmental assets; and
(c) managers of planned environmental water;
in order to develop periodic environmental watering schedules.
30 Environmental watering schedules
(1) An environmental watering schedule developed for the purposes of the environmental watering plan must identify environmental watering priorities for that schedule.
(2) The priorities must be consistent with the environmental watering plan.
31 Authority to coordinate delivery of environmental water
The Authority may coordinate the delivery of environmental water in accordance with the environmental watering schedules developed for the purposes of the environmental watering plan.
32 Authority to identify and account for held environmental water
The Authority must identify and account for held environmental water in the Murray-Darling Basin for each financial year.
Subdivision D--Effect of Basin Plan
33 Basin Plan is a legislative instrument
(1) The Basin Plan:
(a) is a legislative instrument; and
(b) is taken to be made by the Minister on the day on which the Minister adopts the Basin Plan under section 44.
(2) An amendment of the Basin Plan adopted by the Minister under section 48:
(a) is a legislative instrument; and
(b) is taken to be made by the Minister on the day on which the Minister adopts the amendment under that section.
(3) An amendment of the Basin Plan by the Authority under regulations made for the purposes of section 49 is a legislative instrument.
34 Effect of Basin Plan on Authority and other agencies of the Commonwealth
(1) The Authority, and the other agencies of the Commonwealth, must perform their functions, and exercise their powers, consistently with, and in a manner that gives effect to, the Basin Plan.
(2) To avoid doubt, subsection (1) does not apply to the Authority's or the Minister's functions and powers under this Division.
(3) Subsection (1) has effect subject to regulations made for the purposes of section 38.
35 Effect of Basin Plan on other agencies and persons
(1) The Murray-Darling Basin Commission, an agency of a Basin State, an operating authority, an infrastructure operator or the holder of a water access right must not:
(a) do an act in relation to Basin water resources if the act is inconsistent with the Basin Plan; or
(b) fail to do an act in relation to Basin water resources if the failure to do that act is inconsistent with the Basin Plan.
(2) Subsection (1) applies to an act of an agency of a Basin State only if the act is one that relates to the use or management of the Basin water resources.
(3) Subsection (1) has effect subject to regulations made for the purposes of section 38.
36 Constitutional operation of section 35 (general)
(1) Section 35 imposes an obligation to the extent to which imposing the obligation gives effect to a relevant international agreement.
(2) Section 35 imposes an obligation to the extent to which the obligation is imposed:
(a) on a constitutional corporation; or
(b) in relation to conduct that affects the activities of a constitutional corporation.
(3) Section 35 imposes an obligation to the extent to which the obligation is imposed in relation to conduct that takes place in the course of trade or commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory.
Note: This subsection is of particular relevance to the provisions of the Basin Plan that deal with the trading or transfer of tradeable water rights.
(4) Section 35 imposes an obligation to the extent to which the obligation is imposed in relation to conduct that takes place in a Territory.
(5) Section 35 imposes an obligation to the extent to which the obligation is imposed:
(a) on an agency of a State that is a referring State; or
(b) in relation to conduct that takes place in a referring State; or
(c) in relation to conduct that has an effect in a referring State.
(6) Subsections (1), (2), (3), (4) and (5):
(a) have effect independently of each other; and
(b) do not limit section 37; and
(c) do not limit the operation (if any) that section 35 validly has apart from this section.
(7) In this section:
conduct includes an act or omission.
37 Constitutional operation of section 35 (water trading rules)
(1) This section deals with the provisions of the Basin Plan to the extent to which they deal with the trading or transfer of a tradable water right in relation to Basin water resources.
Note: See item 12 of the table in subsection 22(1).
(2) Section 35 imposes obligations in relation to the provisions if at least one of the parties to the trading or the transfer is a constitutional corporation.
(3) Section 35 imposes obligations in relation to the provisions if the trading or transfer takes place in the course of trade and commerce:
(a) between the States; or
(b) between a State and a Territory.
(4) Section 35 imposes obligations in relation to the provisions if:
(a) the trading or transfer takes place in a Territory; or
(b) the trading or transfer relates to tradeable water rights in relation to a water resource in a Territory.
(5) Section 35 imposes obligations in relation to the provisions if at least one element of the trading or transfer takes place using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
(6) Section 35 imposes obligations in relation to the provisions if:
(a) the trading or transfer takes place in a referring State; or
(b) the trading or transfer has an effect in a referring State; or
(c) the trading or transfer relates to tradeable water rights in relation to a water resource in a referring State.
(7) Subsections (2), (3), (4), (5) and (6):
(a) have effect independently of each other; and
(b) do not limit section 36; and
(c) do not limit the operation (if any) that section 35 validly has apart from this section.
38 Regulations may provide for exceptions
(1) Without limiting section 18, the regulations may provide that subsections 34(1) and 35(1) do not apply to the activities specified in the regulations.
(2) Without limiting subsection (1), the regulations:
(a) may provide that subsections 34(1) and 35(1) do not apply to a particular activity only if the conditions specified in the regulations are satisfied; and
(b) may provide that subsections 34(1) and 35(1) do not apply to a particular activity only for the period specified in the regulations.
39 Obligations under both Basin Plan and water resource plans
(1) If:
(a) the Basin Plan provides for obligations in relation to a particular matter; and
(b) the Basin Plan also provides that water resource plans must impose obligations of the same, or a similar, kind in relation to that matter;
the obligations referred to in paragraph (a) are disregarded for the purposes of applying sections 34 and 35.
(2) To avoid doubt, subsection (1) applies even if a particular water resource plan was accredited under section 63 having regard to a version of the Basin Plan that did not include the obligations referred to in paragraph (1)(a).
40 Effect on State laws
Without limiting section 15, if the Basin Plan provides for a maximum quantity of water that may be taken from the water resources of a particular water resource plan area, it is not intended to exclude or limit the concurrent operation of a State law that provides for the same or a lower maximum quantity of water that may be taken from those water resources.
Subdivision E--Procedure for making Basin Plan
41 Authority to prepare Basin Plan and give to Minister for adoption
The Authority must, as soon as practicable after the commencement of this Part, prepare a Basin Plan and give it to the Minister for adoption.
42 Consultations by Authority in preparing Basin Plan
(1) The Authority must consult with:
(a) the Basin States; and
(b) the Basin Officials Committee; and
(c) the Basin Community Committee;
in preparing the Basin Plan.
(2) In preparing the rules referred to in item 12 of the table in subsection 22(1), the Authority must obtain, and have regard to, the advice of the ACCC.
(3) In preparing the Basin Plan, the Authority may undertake such other consultation, and publish such information to facilitate consultation, as it considers appropriate.
43 Authority to seek submissions on proposed Basin Plan
(1) This section applies once the Authority has prepared a proposed Basin Plan.
(2) The Authority must prepare a plain English summary of the proposed Basin Plan (including an outline of the scientific knowledge and socio-economic analysis on which the proposed Basin Plan is based).
(3) Without limiting subsection 42(1), the Authority must:
(a) give a copy of the proposed Basin Plan (and the summary) to the relevant State Minister for each of the Basin States; and
(b) invite the Basin State to make submissions to the Authority on the proposed Basin Plan; and
(c) allow the Basin State at least 16 weeks from when the invitation is given to make submissions to the Authority on the proposed Basin Plan.
(4) The Authority must:
(a) publish an invitation to members of the public to mak