New South Wales—Queensland Border Rivers Act 1947 (NSW)

New South Wales—Queensland Border Rivers Act 1947 No 10 An Act to ratify certain agreements made between the Premiers of New South Wales and Queensland with respect to the Severn, Dumaresq, Macintyre and Barwon Rivers and certain other waters (including underground water); and for other purposes. 1 Name of Act This Act may be cited as the New South Wales—Queensland Border Rivers Act 1947. 2 Commencement This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette. 3 Act to bind the Crown This Act shall bind the Crown. 4 Definitions In this Act, unless the context or subject matter otherwise indicates or requires: Agreement means the Agreement of which a copy is set out in the Schedule to this Act, as amended by the Amending Agreement, the Second Amending Agreement and the Third Amending Agreement. Amending Agreement means the agreement of which a copy is set out in the Supplementary Schedule to this Act. Carrier Rivers means the parts of the Dumaresq, Macintyre and Barwon Rivers constituting part of the boundary between New South Wales and Queensland and located between the Mingoola Gauging Station and the point where the Barwon River reaches the twenty-ninth parallel of south latitude. Commission means The Dumaresq—Barwon Border Rivers Commission constituted under the Agreement. Constructing Authority means the Contracting Government by which any works under this Act are constructed, or to be constructed, or any authority constituted or appointed for the purpose of such construction. Contracting Government means a Government which is a party to the Agreement. Controlling Authority where used in reference to the State of New South Wales means the Ministerial Corporation authorised by this Act to exercise the powers and fulfil the obligations by the Agreement conferred or imposed upon a Controlling Authority. Diversion includes abstraction, impounding and appropriation of water that diminishes or retards the volume of flow of a river. Dumaresq Storage means the storage and basin or basins which at the relevant time are provided by any dam or dams constructed under the Agreement on Pike Creek or on the Dumaresq River upstream of the Mingoola Gauging Station or on a tributary of that river upstream of that station. Exercise of a function includes, if the function is a duty, the performance of the duty. Function includes a power, authority and duty. Government Gazette means the Government Gazette of the State of New South Wales or Queensland (as the case may require). Governor where used in reference to a State means Governor with the advice of the Executive Council of that State and shall include the person for the time being lawfully administering the Government of that State. Land includes Crown lands and buildings, messuages, tenements, and hereditaments of any tenure, and any easement, right, or privilege in, over or affecting any land. Maintenance includes repairs and improvements. Ministerial Corporation means the Water Administration Ministerial Corporation constituted by the Water Management Act 2000. Purposes of this Act include purposes of the Agreement. Prescribed means prescribed by this Act or by regulations pursuant to this Act. Proclamation means proclamation by the Governor of the State of New South Wales or Queensland published in the Government Gazette of that State. River and Tributary respectively include any affluent, effluent, creek, anabranch, or extension of, and any lake or lagoon connected with, the river or tributary. Second Amending Agreement means the agreement of which a copy is set out in the Second Supplementary Schedule to this Act. Third Amending Agreement means the agreement of which a copy is set out in the Third Supplementary Schedule to this Act. Under this Act includes under the Agreement. 5 Ratification of agreements (1) The Agreement, the Amending Agreement, the Second Amending Agreement and the Third Amending Agreement are ratified and approved. (2) Without affecting the generality of this section, the exercise by the State, the Commission or the Controlling Authority of a function under the Agreement, the Amending Agreement, the Second Amending Agreement and the Third Amending Agreement is sanctioned, authorised and confirmed. 6 Regulations made by Commission (1) The Commission may make regulations: (a) for or relating to: (i) the times and places of its meetings, (ii) the conduct of its proceedings, (iii) the duties and the control, supervision, and guidance of its officers and servants, and the time and mode in which they shall account to the Commission for all moneys received by them on its behalf or account, (iv) the mode of making and the management and carrying out of contracts of the Commission, (b) prescribing what business shall be deemed formal for the purposes of the Agreement, (c) prescribing a penalty not exceeding 1 penalty unit for a breach of any such regulations. (2) Every regulation under this section, on being published in the Government Gazette of each of the States of New South Wales and Queensland, shall take effect from the date of the last of such publications, or from a later date specified in the regulation. (3) In addition, regulations under paragraphs (b) and (c) of subsection one of this section shall be laid before both Houses of Parliament of the State of New South Wales and before the Legislative Assembly of the State of Queensland within fourteen sitting days after the date of the latest publication thereof as aforesaid if Parliament is then in session, and, if not, then within fourteen sitting days after the commencement of the next session. If either House of Parliament of the State of New South Wales or the Legislative Assembly of the State of Queensland passes a resolution (of which notice has been given at any time within fifteen sitting days after such regulations have been laid before such House or Legislative Assembly, as the case may be), disallowing such regulations or any part thereof such regulations or part shall thereupon cease to have effect. 7 Regulations made by Commission to have force of law The regulations of the Commission made and to take effect pursuant to this Act shall have the force of law. 8 Evidence of regulation The production of a document purporting to be a copy of any such regulation, and to be signed by a Commissioner or the Secretary of the Commission, or of a Government Gazette in which such regulation was published, shall be prima facie evidence that such regulation was made and is in force. 9 Entry on land by Commission For the purposes of this Act the Commission and any person authorised by the Commission may enter any lands and shall have free access to all works. 10 Writ to enforce performance of duty of Commission The Commission or a Commissioner may be compelled, by mandamus or other writ or order issuing from the Supreme Court of either of the States of New South Wales or Queensland, or, so far as the High Court of Australia has been or may be invested with jurisdiction in the matter, from the High Court of Australia, to perform any of the duties of the Commission or the Commissioner, as the case may be, under this Act. 11 Orders of Commission to bind Subject to this Act and the Agreement, the orders, determinations, decisions, and declarations of the Commission made in the exercise of its powers and discharge of its duties, shall bind the Government and all persons and corporations; and shall be enforceable by order of the Supreme Court. 12 Evidence of records of Commission Every minute or record of the proceedings of the Commission, if signed by the Commissioners, or a copy thereof certified as correct under the hand of a Commissioner or the Secretary of the Commission, shall be presumed to be correct until the contrary is proved. 13 Saving of rights of State officers The existing and accruing rights of a person in the public service or in the employment of any authority constituted by or under any Act shall not be affected by reason of being appointed a Commissioner or being appointed or employed as an officer or servant by the Commission; and service as a Commissioner or as such officer or servant shall count as service in the public service of New South Wales or in the employment of any such authority. 14 Construction etc of works in New South Wales (1) The construction, maintenance, operation and control, pursuant to this Act and the Agreement, of the works to be constructed by New South Wales shall be carried out by the Ministerial Corporation. (2) (a) Subject to this Act and the Agreement the construction in New South Wales of the works to be constructed by New South Wales is hereby authorised; and any such work shall be deemed to be an authorised work within the meaning of the Public Works Act 1912, as amended by subsequent Acts; and the provisions of the said Act, as so amended, sections thirty-four, thirty-five, thirty-six and thirty-seven excepted, shall apply to and in respect of any such work. (b) For the purposes of such construction the Ministerial Corporation shall be the constructing authority within the meaning of the Public Works Act 1912, as amended by subsequent Acts. (3) (a) Subject to this Act and the Agreement the construction in New South Wales of the works to be constructed by Queensland is hereby authorised; and any such work shall be deemed to be an authorised work within the meaning of the Public Works Act 1912, as amended by subsequent Acts; and the provisions of the said Act, as so amended, sections thirty-four, thirty-five, thirty-six and thirty-seven excepted, shall apply to and in respect of any such work. (b) In respect of the construction of the works referred to in paragraph (a) of this subsection the State of Queensland or any authority or person thereto authorised by it shall be the constructing authority within the meaning of the Public Works Act 1912, as amended by subsequent Acts. (c) The Governor may resume, acquire or appropriate, subject to the provisions of the Public Works Act 1912, as amended by subsequent Acts, any land required in New South Wales for or incidental to the works authorised by this subsection and for that purpose the Ministerial Corporation shall have all the powers of a constructing authority under the said Act as so amended. (d) The State of Queensland or any authority or person thereto authorised by it may, in respect of the maintenance, operation and control of works constructed under this subsection or taken over by that State under the Agreement, do in the State of New South Wales all such acts, matters and things as are necessary in or for the purposes of the maintenance, operation and control of such works. (4) (a) In constructing any works authorised by this section a constructing authority shall enter into such contracts and take all such necessary steps for the proper execution thereof as such authority may think proper. (b) Without prejudice to the generality of paragraph (a) of this subsection the provisions of section thirty-eight of the Public Works Act 1912, as amended by subsequent Acts, shall apply to and in respect of any contracts referred to in that paragraph. (c) For the purposes of this section but not otherwise the following amendment shall be made in the Public Works Act 1912, as amended by subsequent Acts, that is to say: (i), (ii) (Repealed) 15 Disposal of superfluous land Notwithstanding any provision to the contrary contained in the Public Works Act 1912, as amended by subsequent Acts, any purchase or other money arising from the sale or leasing of any lands acquired for the purpose of the construction, maintenance, operation and control of works pursuant to this Act and the Agreement shall be credited to the funds of the Commission. 16 Labour conditions Notwithstanding anything contained in any Act relating to industrial arbitration or in any award or agreement made thereunder or pursuant thereto, it shall be lawful for the State of Queensland, or any authority or person thereto authorised by it, in constructing, maintaining, operating, or controlling in the State of New South Wales any work required to be constructed, maintained, operated, or controlled by it under this Act and the Agreement, to observe the same conditions and pay the same wages as would prevail if such construction, maintenance, operation or control were being undertaken in the State of Queensland. 17 Notice to be given in action for compensation No action, claim, or other proceeding for compensation for damage occasioned by the construction or maintenance of works under this Act shall be maintainable unless: (a) notice in writing stating the nature and extent of the damage complained of has been furnished to the constructing authority within six months after the damage in respect of which the notice is given has been occasioned, and (b) after giving the notice the person claiming compensation proceeds without unreasonable delay to obtain such compensation. 18 Rules to be applied in determining compensation In determining whether any and what compensation for such damage is to be made, the court shall in each case have regard to and is hereby empowered and directed to apply the following principles: No compensation shall be awarded save in respect of some item set forth in the notice in writing stating the nature and extent of the injury complained of furnished to the constructing authority as hereinbefore provided. No compensation shall be awarded for any diminution or deterioration of the supply of water to which any person may be entitled, unless such diminution or deterioration is such as to deprive the claimant of a supply of water previously legally enjoyed by the claimant, and unless such diminution or deterioration is the direct and will be the permanent result of the completed works. No compensation shall be made for the taking or diverting of any water which the constructing authority is empowered by or under this Act to take or divert either permanently or temporarily, from any river, creek, stream, watercourse, lake, lagoon, swamp or marsh. There shall be considered in reduction of all claims for compensation for injury, whether, by reason of the execution of any works under this Act, any, and if so what, enhancement in value of any property of the claimant, wherever situate, has been directly or indirectly caused, and whether any, and if so what, immediate or proximate benefit has been gained by or become available to such claimant by reason of the construction or use of such works; and a deduction shall be made accordingly from the amount which, but for this provision, would have been paid or payable as compensation. The measure of damages shall in all cases be the direct pecuniary injury to the claimant by the loss of something of substantial benefit accrued or accruing, and shall not include remote, indirect, or speculative damages. Where the injury complained of appears to be of a permanent or continuing character, or likely to be repeated, a sum may be awarded which the court may declare to be a compensation for all injury, loss or damage sustained in respect of the matter complained of to the date of the bringing of the action, and also for all future injury, loss, or damage, in respect of the same matter; and after such award no further compensation shall be made in respect of any such future injury, loss, or damage. 19 Stay of proceedings until completion of works If compensation is sought to be recovered for any such injury alleged to be the result of the execution of works which at the time of the alleged injury and of the claim to compensation in respect thereof are incomplete, it shall be lawful for the Supreme Court, upon an application by the constructing authority, to make an order directing that the proceedings upon the claim for compensation shall be stayed until the completion of such works or for such period to be stated in the order as the Court may consider sufficient for the completion of such works, and the proceedings to recover such compensation shall be stayed accordingly; but at the expiration of the stay limited in such order the claimant shall be at liberty to resume proceedings for the recovery of such compensation without commencing any fresh proceedings. 20 Ministerial Corporation to be Controlling Authority for NSW The Ministerial Corporation is hereby authorised in relation to the State of New South Wales to exercise the powers and fulfil the obligations by the Agreement conferred or imposed upon a Controlling Authority. 21 Controlling Authority may restrict diversions of water (1) Notwithstanding any provision contained in any Act or the terms of any licence, permit, authority or approval granted to divert water from the Dumaresq Storage or the Carrier Rivers the Controlling Authority shall have power to direct the holder of any licence, permit, authority or approval to cease or reduce any diversions of water from the Dumaresq Storage and the Carrier Rivers to such extent and for such time or times as may by the Controlling Authority be considered necessary: (a) to enable it to give effect to any direction issued to it by the Commission under clause thirty-eight of the Agreement, or (b) if the Controlling Authority is of the opinion that the quantity of water being diverted into the State of New South Wales is or is likely to be in excess of the share of the water discharged from the Dumaresq Storage available for the use of such State under the Agreement. (2) In the event of the holder of any licence, permit, authority or approval failing to comply with any direction given by the Controlling Authority under subsection one of this section, the Controlling Authority may give such holder notice by registered letter addressed to the holder at the holder's address last known to the Controlling Authority that after the expiration of the period specified in the notice it is the intention of the Controlling Authority to cancel or suspend the licence, permit, authority or approval. At the expiration of the period specified in the notice the licence, permit, authority or approval shall be cancelled or suspended as stated in the notice unless the Controlling Authority shall have annulled or withdrawn the notice in the meantime. (3) Every holder of a licence, permit, authority or approval who diverts water from the Dumaresq Storage or the Carrier Rivers when the licence, permit, authority or approval has been cancelled or suspended by the Controlling Authority under the provisions of subsection two of this section shall, upon conviction, be liable for the first offence to a penalty not exceeding 0.5 penalty unit, and for a subsequent offence to a penalty not exceeding 2 penalty units, or where the offence is a continuing one, to a penalty not exceeding 0.1 penalty unit for every day during which the offence is continued. 22 Regulations made by Governor (1) The Governor may, for carrying out any of the purposes of this Act for which the Commission is not empowered to make regulations, make regulations and provide a penalty not exceeding 1 penalty unit for any breach thereof. (2), (3) (Repealed) 23 Appointment of Commissioner and Deputy Commissioner The Governor may under this Act, appoint a Commissioner and a Deputy Commissioner, who shall respectively be paid such salaries as the Governor shall determine. 24 Water Management Act 2000 to be read subject to the Agreement Nothing in the Water Management Act 2000 shall affect the exercise of any powers conferred by the Agreement or by this Act, and the first mentioned Act shall be read subject to the Agreement. 25 Penalty for damaging works Every person who unlawfully and maliciously destroys or damages, or attempts to destroy or damage, any works or portion of works under this Act shall in addition to any penalty provided by regulations under this Act be liable on conviction to imprisonment for any term not exceeding ten years. 26 Evidence of arbitrator's decision A document signed by and purporting to contain the decision of an arbitrator appointed under the provisions of the Agreement shall be evidence of such decision. 27 Exemption from rates and taxes No rates, taxes, or charges whatsoever (whether local government or not) shall be imposed, made, or levied, in respect of any works under this Act, or in respect of any land or other property held by any Contracting Government or constructing authority for the purpose of such works. 28 Recovery of penalties All penalties for offences against or breaches of any regulations made under this Act may be recovered in a summary way before the Local Court. 29 Reports to be laid before Parliament All reports, statements, and estimates received under this Act by the Governor shall be laid before both Houses of Parliament without delay. Schedule The Agreement AGREEMENT made the twenty-seventh day of November One thousand nine hundred and forty-six BETWEEN THE STATE OF NEW SOUTH WALES (hereinafter called "New South Wales") of the one part AND THE STATE OF QUEENSLAND (hereinafter called "Queensland") of the other part WHEREAS it is desirable that certain works be constructed on parts of those portions of the Severn Dumaresq Macintyre and Barwon Rivers which constitute part of the boundary between the States of New South Wales and Queensland for the furtherance of water conservation water supply and irrigation in the said States and for other purposes NOW IT IS HEREBY AGREED as follows: PART I RATIFICATION AND ENFORCEMENT 1. Ratification This Agreement is subject to ratification by the Parliaments of the States of New South Wales and Queensland and shall come into effect when so ratified. 2. Submission to Parliaments Each of the parties hereto shall take every practicable step to have this Agreement ratified by its Parliament as soon as possible. 3. Contracting parties to provide for enforcement of Agreement and Act Each of the parties hereto so far as its jurisdiction extends and so far as may be necessary shall provide for or secure the execution and enforcement of the provisions of this Agreement and any Acts ratifying the same. PART II THE COMMISSION 4. Appointment As soon as practicable after this Agreement comes into effect a Commission to be called "The Dumaresq—Barwon Border Rivers Commission" (hereinafter called "the Commission") shall be appointed for the purposes of this Agreement and of the Acts ratifying the same and shall be charged with the duty of giving effect to this Agreement and the said Acts. 5. Constitution The Commission shall consist of three Commissioners of whom one shall be appointed by the Governor of New South Wales one by the Governor of Queensland and one not being a person in the service of the Government of either of the parties hereto (who shall be the Chairman of the Commission) shall be appointed by the Premiers of New South Wales and Queensland and in the event of such Premiers being unable at any time to agree upon the appointment of a Chairman then such appointment shall be made by the Chief Justice of New South Wales or the Chief Justice of Queensland (such two Chief Justices to act on alternate occasions) from a panel of names submitted by the two Premiers each of whom shall submit an equal number of names not exceeding two the selection on the first occasion to be made by the Chief Justice of New South Wales. Each Commissioner shall be appointed for a term not exceeding five years and shall be eligible for reappointment. 6. Meetings and business (1) Each meeting of the Commission shall be convened by the Chairman or Deputy Chairman and be held at a time and place fixed by the Chairman or Deputy Chairman. (2) For the transaction of business other than business which the Commission may have prescribed as formal the three Commissioners shall be a quorum and the concurrence of all of them shall be necessary. (3) When any matter (not being business which the Commission may have prescribed as formal) requires a decision by the Commission and it is for whatever reason impossible to secure at two consecutive meetings of the Commission the quorum required by the preceding subclause (2) or if a difference of opinion arise among the Commissioners on any question not being a question prescribed as formal business such matter (if so required by the Premier of New South Wales or the Premier of Queensland) or such question (unless the Commissioners concur within two months after submission by a Commissioner of a resolution thereon) shall as hereinafter provided be referred for decision to an arbitrator who shall be appointed by the Premiers of New South Wales and Queensland. Either of such Premiers may give to the other written notice to concur in the appointment of an arbitrator and to refer such matter or question to such arbitrator for decision. If the appointment be not made within two months after the giving of such notice the Chief Justice of the Supreme Court of Tasmania or other the person for the time being discharging the duties of that office may at the request of the Premier by whom such notice shall have been given appoint an arbitrator who shall have the like powers to act in the reference and to decide the matter or question as if he had been appointed by the Premiers of New South Wales and Queensland. The decision of an arbitrator appointed to decide such matter or question shall be binding on the Commission and the parties hereto and shall have effect as if the same were a determination of the Commission. (4) The Commission shall not prescribe as formal any business in which the interests of the parties hereto are dissimilar. For the transaction of business which the Commission may have prescribed as formal two Commissioners shall be a quorum and if at any meeting of the Commission at which two Commissioners only are present such Commissioners differ in opinion upon any matter (being business which the Commission may have prescribed as formal) the determination of such matter shall be postponed until all the Commissioners are present and if necessary the provisions of subclause (3) of this clause which are applicable in the event of its being for whatever reason impossible to secure at two consecutive meetings of the Commission the quorum required by subclause (2) of this clause shall apply. 7. Powers and salaries Subject to the provisions of this Agreement the Commissioners shall have equal powers and each Commissioner appointed by a Governor shall be paid such salary fees or allowance and such expenses as that Governor shall determine and the Chairman shall be paid such salary fees or allowance and such expenses as may be agreed upon by the Premiers of New South Wales and Queensland. 8. Vacation of office (1) A Commissioner shall be deemed to have vacated his office: (a) if he becomes bankrupt compounds with his creditors or makes an assignment of his salary fees allowance or estate for their benefit; (b) if he is absent from two consecutive ordinary meetings of the Commission without leave obtained from the Commission in that behalf; (c) if he resigns his office by writing under his hand addressed in the case of a Commissioner other than the Chairman to the Governor of the State whose Governor appointed him and addressed in the case of a Chairman to the Premiers of New South Wales and Queensland; (d) if he is removed from office as hereinafter provided. (2) The Governor of a State may for any cause which appears to him sufficient remove from office a Commissioner appointed by the Governor of that State. (3) The Premiers of New South Wales and Queensland may for any cause which appears to them sufficient remove a Chairman from office. (4) On any vacancy occurring in the office of Chairman during the term of such Chairman a person shall be appointed to the vacant office in the manner provided by Clause 5 for the appointment of a Chairman and on any vacancy occurring in the office of a Commissioner (other than the Chairman) during the term of such Commissioner the Governor of the State whose Governor appointed the Commissioner whose office is vacant shall appoint a person to the vacant office and in any of such cases the person appointed to fill the vacant office shall subject to this Agreement hold office for the unexpired portion of the term of the vacant office. 9. Deputy Commissioners (1) In case of the illness or absence of a Chairman a person may in the manner provided in Clause 5 for the appointment of a Chairman be appointed to act as Deputy Chairman during such illness or absence and in case of the illness or absence of a Commissioner other than the Chairman the Governor of the State by whose Governor he was appointed may appoint a person to act as Deputy Commissioner during such illness or absence. (2) Every such Deputy shall while so acting have all the powers and perform all the duties and be entitled to the indemnities of the Chairman or Commissioner in whose stead he so acts. (3) Any Deputy appointed by a Governor shall be paid such salary fees or allowance and such expenses as that Governor shall determine and any Deputy Chairman shall be paid such salary fees or allowance and such expenses as may be agreed upon by the Premiers of New South Wales and Queensland. 10. Indemnities Each of the parties hereto shall indemnify the Commissioner appointed as Chairman and the Commissioner appointed by its own Governor in respect of any act done by him and of any losses costs or damages incurred by him in the bona fide execution of the powers vested in the Commission by or under this Agreement or any Act ratifying the same. 11. Appointment of Secretary and officers The Commission may from time to time appoint and employ a Secretary and such other officers and servants as it thinks fit and may remove or dismiss them. PROVIDED HOWEVER that the Commission may in lieu of so appointing and employing a Secretary arrange for a person employed by either of the parties hereto or by any Authority constituted by either of the parties hereto to act as Secretary to the Commission in which case such salary fees or allowance and such expenses as may be approved by the Commission and agreed upon by the State or Authority concerned may be paid to such person. 12. Employment of Officers in Public Service The services of persons employed by either of the parties hereto or by any Authority constituted by either of the parties hereto may and as far as practicable shall be utilised by the Commission for the purposes of carrying out any work or services to be carried out or performed by the Commission pursuant to this Agreement and the Commission may arrange with the State or Authority concerned as the case may be for the utilisation of the services of any of such persons for such purposes and for payment for the work or services carried out or performed by any of such persons for the Commission and the services of any of such persons may be utilised in part by the Commission and in part by a party hereto or Authority constituted by a party hereto. 13. Records of proceedings The Commission shall cause proper minutes or records of all its proceedings to be kept. 14. Gaugings It shall be the duty of the Commission to arrange for and carry on an effective and uniform system of making and recording continuous gaugings of: (a) the flow of water in the Dumaresq River at a place downstream of and as close as practicable to the Dumaresq Dam referred to in Clause 16 and at such other places (being not less than three in number) as the Commission may deem necessary along Carrier Rivers; (b) such of the rivers which are tributary to or effluent from the Carrier Rivers as the Commission deems necessary to determine the volume of inflow from such tributary rivers into the Carrier Rivers and the volume of outflow by such effluent rivers from the