Water Amendment Act 2008 (Cth)

Water Amendment Act 2008 No. 139, 2008 An Act to amend the Water Act 2007, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendments based on referrals of power Water Act 2007 Schedule 2—Other amendments Part 1—Repeal Murray‑Darling Basin Act 1993 Part 2—Amendments Legislative Instruments Act 2003 Trade Practices Act 1974 Water Act 2007 Schedule 3—Transitional provisions Part 1—Staff Part 2—Appointments etc. Part 3—Miscellaneous Schedule 4—Amendments related to Indigenous representation on the Basin Community Committee Water Act 2007 Water Amendment Act 2008 No. 139, 2008 An Act to amend the Water Act 2007, and for related purposes [Assented to 8 December 2008] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Water Amendment Act 2008. 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 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 8 December 2008 2. Schedule 1 Immediately after the commencement of the provision(s) covered by table item 3. 15 December 2008 3. Schedule 2 A single day to be fixed by Proclamation. 15 December 2008 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. (see F2008L04656) 4. Schedules 3 and 4 Immediately after the commencement of the provision(s) covered by table item 3. 15 December 2008 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in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments based on referrals of power Water Act 2007 1 After Part 1 Insert: Part 1A—The Murray‑Darling Basin Agreement Division 1—Preliminary 18A Definitions In this Act: Agreement means the Murray‑Darling Basin Agreement, as amended from time to time in accordance with that agreement and as set out in Schedule 1. Note: The Murray‑Darling Basin Agreement operates as an agreement between the parties. The text of the Agreement is set out in Schedule 1, and as such it has further effect as provided for by this Act (for example, see sections 18E and 18F). Authority means the Murray‑Darling Basin Authority established by section 171. Basin Officials Committee means the committee established under the Agreement. Murray‑Darling Basin means the area falling within the boundary described in the dataset that: (a) is titled Murray‑Darling Basin Boundary—Water Act 2007; and (b) has a dataset scale of 1:250,000; and (c) specifies the boundary of the Murray‑Darling drainage division derived from the dataset that is titled "Australia's River Basins 1997" and is dated 30 June 1997; and (d) is held by the Commonwealth. Note 1: An indicative map of this area is set out in Schedule 1A. Note 2: A copy of the dataset can be obtained from the Department's website: see section 252A. Murray‑Darling Basin Ministerial Council has the same meaning as Ministerial Council in the Agreement. 18B Meaning of referring State 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) in relation to the State 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 that 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 for the State in question relate to the extent of making laws with respect to those matters by including the referred provisions in this Act. Reference covering amendments of this Act (4) This subsection covers: (a) if the State in question is a Basin State—the referred subject matters; and (b) in any case—the matter of the application, in relation to water resources that are not Basin water resources, of provisions of this Act dealing with the subject matters specified in paragraphs (c) and (d) of the definition of referred subject matters in subsection (9) (being an application of a kind that is authorised by the law of the State in question); 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) Subject to subsections (7) and (8), a State ceases to be a referring State if the State's amendment reference terminates. (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, terminate on the same day. (8) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) a Bill is introduced into a House of the Parliament that includes a proposed amendment of the referred provisions, or that would, if enacted, have the effect that this Act would no longer contain: (i) subsections 22(10), (11) and (12), or provisions having substantially the same effect; or (ii) Part 11A, or provisions having substantially the same effect; and (b) the Governor of the State, by proclamation, issues a notice stating that: (i) the State has not agreed to the amendment; and (ii) this subsection will apply in relation to the State from a day specified in the notice; and (c) the State Minister of that State who is a member of the Murray‑Darling Basin Ministerial Council informs the other members of the Murray‑Darling Basin Ministerial Council that the notice was issued; and (d) the Governor does not revoke the notice before: (i) the day specified in the notice passes; or (ii) the Bill is enacted in a form that includes that amendment or a substantially similar amendment; whichever happens later. Definitions (9) In this section: amendment includes the insertion, omission, repeal, substitution, addition or relocation of words or matter. 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). express amendment of this Act means the direct amendment of: (a) the referred provisions; or (b) definitions in this Act of terms used in the referred provisions; but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of the referred provisions or those definitions. 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, for a State, means: (a) if the State is a Basin State—this Part and Parts 2A, 4, 4A, 10A and 11A, as originally enacted by the Water Amendment Act 2008, to the extent to which they deal with matters that are included in the legislative powers of the Parliament of the State; or (b) if the State is not a Basin State—Parts 4A and 11A, as originally enacted by the Water Amendment Act 2008, to the extent to which they deal with matters that are included in the legislative powers of the Parliament of the State. referred subject matters means any of the following: (a) the powers, functions and duties conferred on Commonwealth agencies that: (i) relate to Basin water resources; and (ii) are conferred by or under the Agreement; (b) the management of Basin water resources to meet critical human water needs; (c) water charging in relation to Basin water resources (other than for urban water supply after the removal of the water from a Basin water resource); (d) the transformation of entitlements to water from a Basin water resource to enable trading in those water entitlements; (e) the transfer of assets, rights and liabilities of the Murray‑Darling Basin Commission to the Authority, and other transitional matters relating to the replacement of the Murray‑Darling Basin Commission. (10) A reference in this section to a Part of this Act includes a reference to any Schedule to this Act that contains provisions enacted for the purposes of that Part. Division 2—The Murray‑Darling Basin Agreement 18C Amendment of Schedule 1 (1) The regulations may make amendments to Schedule 1 by incorporating into the Agreement amendments made to, and in accordance with, the Murray‑Darling Basin Agreement. Note 1: The Murray‑Darling Basin Agreement requires the agreement of the Murray‑Darling Basin Ministerial Council to any amendments of the Murray‑Darling Basin Agreement. Note 2: Amendments of the Murray‑Darling Basin Agreement, made in accordance with that agreement, operate as an agreement between the parties. The text of the Agreement as set out in Schedule 1 will be amended accordingly, and as such it has further effect as provided for by this Act (for example, see sections 18E and 18F). The amendment of the Schedule by itself cannot amend the agreement between the parties. (2) A reference in subsection (1) to amendment includes a reference to the insertion, omission, repeal, substitution, addition or relocation of words or matter. (3) Part 6 (sunsetting) of the Legislative Instruments Act 2003 does not apply to regulations made for the purposes of this section. 18D Protocols made by the Authority A protocol made by the Authority under a Schedule to the Agreement is a legislative instrument, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the protocol. Division 3—Functions, powers and duties under the Agreement 18E Additional functions, powers and duties of the Authority (1) Without limiting sections 172 and 173, the Authority has, in a referring State or the Australian Capital Territory, the functions, powers and duties that: (a) are expressed to be conferred on it by or under the Agreement; and (b) relate to the water and other natural resources of the Murray‑Darling Basin. (2) In performing these functions and duties and exercising these powers, the Authority must comply with any requirements under the Agreement. (3) The Authority has, in connection with: (a) the performance of its functions and duties under this Part; and (b) the exercise of its powers under this Part; such powers in a referring State or the Australian Capital Territory as it has in connection with the performance of its other functions under this Act. (4) However, the application of subsection (3) to the Authority's powers under Part 10 is limited to the Authority's powers under: (a) Subdivision A of Division 2 of that Part (Authorised officers); and (b) Subdivision B of Division 2 of that Part (Powers to enter land etc. other than for compliance purposes); and (c) Division 3 of that Part (Information gathering). (5) Part 10 so applies as if: (a) the application of that Part in relation to premises in, or information held in, a referring State or the Australian Capital Territory were not limited by section 216 or 219 or by subsection 238(1); and (b) references in section 221 to the Authority's functions under section 219 included references to the Authority's functions under this Part. (6) However: (a) an authorised officer must not enter premises under Subdivision B of Division 2 of that Part as applied by this section unless he or she reasonably believes this is necessary for the performance of any of the Authority's functions under this Part; and (b) Subdivision B of Division 2 of that Part as applied by this section does not extend to entering premises for the purposes of: (i) monitoring compliance with this Part or regulations made for the purposes of this Part; or (ii) searching for evidential material; and (c) the Authority must not require a person to give information under Division 3 of that Part as applied by this section unless the Authority has reason to believe that information relating to a matter: (i) relevant to the performance of the Authority's functions under this Part; and (ii) specified in regulations made for the purposes of this paragraph; is in the person's possession, custody or control (whether held electronically or in any other form). Note: The conferral of functions, powers and duties on the Authority by this section does not otherwise give the Agreement any effect as a law of the Commonwealth. 18F Additional functions, powers and duties of the Basin Community Committee (1) Without limiting section 202, the Basin Community Committee has, in a referring State or the Australian Capital Territory, the functions, powers and duties that: (a) are expressed to be conferred on it by or under the Agreement; and (b) relate to the water and other natural resources of the Murray‑Darling Basin. (2) In performing these functions and duties and exercising these powers, the Basin Community Committee must comply with any requirements under the Agreement. Note: The conferral of functions, powers and duties on the Basin Community Committee by this section does not otherwise give the Agreement any effect as a law of the Commonwealth. 18G Management of money and assets The Authority must deal with: (a) any money under the Agreement; and (b) any assets it acquires with that money; and (c) any assets that vest in the Authority under section 239C; in a way that is in accordance with the Agreement and consistent with the purposes of the Agreement. 18H Managing water access rights etc. for the Living Murray Initiative (1) The Authority must, if the Living Murray Initiative so provides, manage the rights and interests that: (a) are: (i) water access rights, water delivery rights, irrigation rights or other similar rights relating to water; or (ii) interests in, or in relation to, such rights; and (b) are held for the purposes of the Living Murray Initiative; in accordance with and in a way that gives effect to the Living Murray Initiative. (2) The Living Murray Initiative is the Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the Murray‑Darling Basin of 25 June 2004 read together with: (a) the Supplementary Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the Murray‑Darling Basin of 14 July 2006; and (b) arrangements referred to in clause 3.9.2 of the Agreement on Murray‑Darling Basin Reform‑Referral. 2 After Part 2 Insert: Part 2A—Critical human water needs 86A Critical human water needs to be taken into account in developing Basin Plan (1) Without limiting section 21, the Basin Plan must be prepared having regard to the fact that the Commonwealth and the Basin States have agreed: (a) that critical human water needs are the highest priority water use for communities who are dependent on Basin water resources; and (b) in particular that, to give effect to this priority in the River Murray System, conveyance water will receive first priority from the water available in the system. (2) Critical human water needs are the needs for a minimum amount of water, that can only reasonably be provided from Basin water resources, required to meet: (a) core human consumption requirements in urban and rural areas; and (b) those non‑human consumption requirements that a failure to meet would cause prohibitively high social, economic or national security costs. (3) The River Murray System is the aggregate of: (a) the main course of the River Murray upstream of the eastern boundary of South Australia; and (b) all tributaries entering that part of the main course upstream of Doctors Point (near Albury); and (c) all effluents and anabranches of that part of the main course; and (d) the watercourses connecting Lake Victoria to the main course; and (e) the Darling River downstream of the Menindee Lakes Storage; and (f) the upper River Murray storages, namely: (i) Lake Victoria; and (ii) the Menindee Lakes Storage; and (iii) the storages formed by Dartmouth Dam and Hume Dam; and (iv) the storages formed by the weirs, and weirs and locks, described in Schedule A to the Agreement that are upstream of the eastern boundary of South Australia; and (g) the River Murray in South Australia. (4) Conveyance water is water in the River Murray System required to deliver water to meet critical human water needs as far downstream as Wellington in South Australia. 86B Basin Plan to provide for critical human water needs (1) The Basin Plan must: (a) include a statement of the amount of water required in each Basin State that is a referring State (other than Queensland) to meet the critical human water needs of the communities in the State that are dependent on the waters of the River Murray System; and (b) include a statement of the amount of conveyance water required to deliver the water referred to in paragraph (a); and (c) specify water quality trigger points and salinity trigger points at which water in the River Murray System becomes unsuitable for meeting critical human water needs. (2) The reference in paragraph (1)(a) to communities in a Basin State who are dependent on the waters of the River Murray System does not include a reference to communities dependent on the waters of the Edward‑Wakool System downstream of Stevens Weir. 86C Additional matters relating to monitoring, assessment and risk management (1) The Basin Plan must also specify: (a) arrangements for monitoring matters relevant to critical human water needs, including monitoring the quality, quantity and flows of surface water, the health of ecosystems and social impacts on communities; and (b) the process for assessing, and managing risks to critical human water needs associated with, inflow prediction: (i) in the River Murray System; and (ii) in relation to works that are 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; and (c) the risk management approach for inter‑annual planning relating to arrangements for critical human water needs in future years. (2) The risk management approach referred to in paragraph (1)(c) must address the making of decisions about whether water is: (a) made available, in a particular year, for uses other than meeting critical human water needs; or (b) set aside for critical human water needs in future years. 86D Additional matters relating to Tier 2 water sharing arrangements (1) The Basin Plan must also: (a) specify the conditions under which, due to the likelihood that the State water sharing arrangements that would apply but for this Part (Tier 1 water sharing arrangements) will not ensure that there is enough water to meet conveyance water needs: (i) the Tier 1 water sharing arrangements cease to apply; and (ii) other State water sharing arrangements (Tier 2 water sharing arrangements), provided for in the Agreement, commence; and (b) specify the conditions under which Tier 2 water sharing arrangements cease to apply and Tier 1 water sharing arrangements recommence; and (c) include a reserves policy that, for periods during which Tier 2 water sharing arrangements apply: (i) specifies the annual volume of water required to be reserved to meet the shortfall in conveyance water worked out under subsection (2); and (ii) specifies the extent to which this volume may vary between years; and (iii) specifies the arrangements that are to apply to ensure that the volume of water required to meet the shortfall in conveyance water will be reserved and provided; and (iv) takes into account the potential inputs from the Murrumbidgee, Darling and Goulburn Rivers; and (d) specify arrangements for carrying water over in storage from one year to another for New South Wales, Victoria and South Australia; and (e) provide for any other matters necessary to give effect to arrangements for sharing water in the River Murray System and in the Murrumbidgee, Darling and Goulburn Rivers in order to provide conveyance water. (2) The shortfall in conveyance water is worked out for the purposes of subparagraph (1)(c)(i) by subtracting: (a) the amount of conveyance water referred to in paragraph 86B(1)(b); from (b) the minimum inflow sequence to the River Murray System from: (i) natural flows; and (ii) works that are 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. (3) The arrangements referred to in paragraph (1)(d) must: (a) recognise South Australia's right, as provided for in clauses 91 and 130 of the Agreement, to store its entitlement to water; and (b) recognise that each of New South Wales, Victoria and South Australia is responsible for meeting the critical human water needs of that State, and will decide how water from its share is used. (4) State water sharing arrangements are the provisions of the Agreement that deal with the sharing of surface water in the River Murray System. Note: The rules and accounting arrangements in the Agreement partition the shared surface water resource of the River Murray System between New South Wales and Victoria, and detail the entitlements to this water by South Australia. The Agreement includes provisions about the way in which the shares are defined, transferred and accounted for, access to and sharing of the storages, access to flows at different times and accounting for losses and overflows. All these provisions are used to determine the quantity of water in each State's share at any given time. 86E Additional matters relating to Tier 3 water sharing arrangements (1) The Basin Plan must also: (a) specify the conditions under which, due to one or more of the circumstances referred to in subsection (2): (i) Tier 2 water sharing arrangements cease to apply; and (ii) other arrangements (Tier 3 water sharing arrangements), provided for in the Agreement, commence; and (b) specify the conditions under which Tier 3 water sharing arrangements cease to apply and Tier 2 water sharing arrangements recommence. (2) For the purposes of paragraph (1)(a), the circumstances are: (a) there are extreme and unprecedented low levels of water availability in the River Murray System; or (b) there is extreme and unprecedented poor water quality in the water available in the River Murray System to meet critical human water needs; or (c) there is an extremely high risk that water will not be available in the River Murray System to meet critical human water needs during the next 12 months. 86F Emergency responses to the reaching of trigger points (1) If a water quality trigger point or salinity trigger point referred to in paragraph 86B(1)(c) is reached, the Authority must: (a) in consultation with the Basin Officials Committee, formulate an emergency response to ensure that water in the River Murray System that is available to meet critical human water needs is returned to a state suitable for meeting critical human water needs; and (b) subject to subsection (2), take the action necessary to implement the emergency response. (2) The Authority must not take any action under paragraph (1)(b) that affects State water sharing arrangements or Border Rivers water sharing arrangements unless the Murray‑Darling Basin Ministerial Council has agreed to the action. (3) Border Rivers water sharing arrangements are the agreements ratified by: (a) the New South Wales‑Queensland Border Rivers Act 1947 of New South Wales; and (b) the New South Wales‑Queensland Border Rivers Act 1946 of Queensland; that deal with the distribution and use of surface water. 86G Effect of this Part on Authority and other agencies of the Commonwealth (1) The Authority and other agencies of the Commonwealth must perform their functions, and exercise their powers, consistently with, and in a manner that gives effect to, the matters included or specified in the Basin Plan under this Part. (2) Subsection (1) does not apply to the performance of a function, or the exercise of a power, that affects State water sharing arrangements or Border Rivers water sharing arrangements, unless: (a) the Murray‑Darling Basin Ministerial Council has agreed to the Basin Plan applying to the performance of the function or the exercise of the power; or (b) the performance of the function or the exercise of the power takes place at a time when, under clause 135 of the Agreement, the provisions of the Basin Plan required by this Part are taken to be a Schedule to the Agreement. (3) To avoid doubt, subsection (1) does not apply to the Authority's functions and powers under this Part. 86H Effect of this Part on other agencies and persons (1) The Basin Officials Committee, an agency of a Basin State that is a referring State or an agency of the Australian Capital Territory must not: (a) do an act in relation to Basin water resources if the act is inconsistent with any of the matters included or specified in the Basin Plan under this Part; or (b) fail to do an act in relation to Basin water resources if the failure to do that act is inconsistent with any of those matters. (2) Subsection (1) applies to an act of the Basin Officials Committee, an agency of a Basin State that is a referring State or an agency of the Australian Capital Territory only if the act is one that relates to the use or management of the Basin water resources. (3) An operating authority, an infrastructure operator or the holder of a water access right must not, in a Basin State that is a referring State, or in the Australian Capital Territory: (a) do an act in relation to Basin water resources if the act is inconsistent with any of the matters included or specified in the Basin Plan under this Part; or (b) fail to do an act in relation to Basin water resources if the failure to do that act is inconsistent with any of those matters. (4) Subsection (1) or (3) does not apply to an act, or failure to act, that affects State water sharing arrangements or Border Rivers water sharing arrangements, unless: (a) the Murray‑Darling Basin Ministerial Council has agreed to the Basin Plan applying to the act or failure; or (b) the act or failure takes place at a time when, under clause 135 of the Agreement, the provisions of the Basin Plan required by this Part are taken to be a Schedule to the Agreement. 86J Additional powers of the Authority (1) The Authority has, in connection with: (a) the performance of its functions and duties under this Part; and (b) the exercise of its powers under this Part; such powers in a Basin State that is a referring State, or in the Australian Capital Territory, as it has in connection with the performance of its other functions under this Act. (2) The application of subsection (1) to the Authority's powers under Part 10 in relation to premises in, or information held in, a referring State or the Australian Capital Territory is not limited by section 216 or 219 or by subsection 223(1) or 238(1). (3) Part 10 so applies as if: (a) references in section 221 to the Authority's functions under section 219 included references to the Authority's functions under this Part; and (b) for the purposes of Subdivision C of Division 2 of that Part, references in the definition of evidential material in subsection 4(1) to Part 2 included references to this Part; and (c) references in subsections 224(3) and 225(2) to Part 2 included references to this Part. (4) However: (a) an authorised officer must not enter premises under Subdivision B of Division 2 of that Part as applied by this section unless he or she reasonably believes this is necessary for the performance of any of the Authority's functions under this Part; and (b) Subdivision B of Division 2 of that Part as applied by this section does not extend to entering premises for the purposes of: (i) monitoring compliance with this Part or regulations made for the purposes of this Part; or (ii) searching for evidential material; and (c) an authorised officer must not: (i) enter premises under Subdivision C of Division 2 of that Part as applied by this section; or (ii) exercise any of the powers described in subsection 223(2); except to the extent that this is reasonably necessary to monitor compliance with provisions of this Part or regulations made for the purposes of this Part; and (d) the Authority must not require a person to give information under Division 3 of that Part as applied by this section unless the Authority has reason to believe that information relating to either of the following matters: (i) the preparation and implementation of the Basin Plan in the way provided for in this Part; (ii) a matter that is relevant to the performance of the Authority's functions under this Part and that is specified in regulations made for the purposes of this paragraph; is in the person's possession, custody or control (whether held electronically or in any other form)