EMERGENCY WATER (MURRAY-DARLING BASIN RESCUE) BILL 2008

i Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008

Contents

Part 1--Preliminary

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Objects ................................................................................................ 2

Interpretation....................................................................................... 2

Schedule(s) ......................................................................................... 2

Part 2--Powe rs of Minister in relation to manage ment of Basin

water resources

Decision that Interim Basin Plan required .......................................... 3

Authority to prepare Interim Basin Plan ............................................. 3

Approval of Interim Basin Plan .......................................................... 3

Matters that may be determined by Minister ...................................... 4

Sharing regime.................................................................................... 5

Activities inconsistent with relevant international agreements .......... 5

Part 3--Matters to which Minister must have regard whe n

making a determination

Matters to which Minister must have regard when making a

determination ...................................................................................... 6

Part 4--Constitution and powe rs of Authority in relation to

imple mentation, compliance and enforce ment of

Inte rim Basin Plan

Constitution of Authority.................................................................... 7

Powers of Authority in relation to implementation,

compliance and enforcement of Interim Basin Plan ........................... 7

Part 5--Regulation of water trade

Trade and commerce power................................................................ 8

Inconsistent State or Territory actions ................................................ 8

Activities by constitutional corporations ............................................ 8

Acquisition of property....................................................................... 9

Declaration of taxation schemes detrimental to management

of Basin water resources ................................................................... 10

Failure to comply with Interim Basin Plan made under this

Act..................................................................................................... 10

Part 6--Miscellaneous

Inconsistent Commonwealth laws .................................................... 12

Application of Legislative Instruments Act 2003 ............................. 12

Part 1 Preliminary

Section 3

2 Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008

3 Objects

The objects of this Act are to empower the Minister and the

Murray-Darling Basin Authority:

(a) to address the current crisis affecting the Murray-Darling

Basin, including making decisions about how best to allocate

water:

(i) for system maintenance; and

(ii) to the environment; and

(iii) to water users and holders of a water access entitlement

or a water access right;

throughout the Murray-Darling Basin; and

(b) to share, manage and allocate the Basin water resources and

manage all processes that may adversely affect them;

as an emergency measure until such time as the Minister approves

a Basin Plan that is consistent with the Water Act 2007.

4 Inte rpretation

A word or an expression that is used in this Act that is also used in

the Water Act 2007 has the same meaning in this Act as it has in

that Act.

5 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.

Powers of Minister in relation to management of Basin water resources Part 2

Section 6

Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008 3

Part 2--Powers of Minister in relation to

management of Basin water resources

6 Decision that Interim Basin Plan required

The Minister may decide that, to address the current crisis affecting

the Murray-Darling Basin, an Interim Basin Plan is required, as an

emergency measure to apply until such time as he or she approves

a Basin Plan that is consistent with the Water Act 2007.

7 Authority to prepare Interim Basin Plan

(1) If the Minister decides under section 6 that an Interim Basin Plan is

required, the Minister must direct the Authority to prepare the

Interim Basin Plan and the Authority must prepare the Interim

Basin Plan.

(2) An Interim Basin Plan prepared by the Authority under

subsection (1) must include any determination made by the

Minister under section 9, 10 or 11.

(3) A direction by the Minister under subsection (1) must provide that

the Authority must prepare the Interim Basin Plan and provide it to

the Minister within 30 days of the date of the direction.

(4) An Interim Basin Plan may include any of the matters that must or

may be included in a Basin Plan under section 22 of the Water Act

2007, but does not need to include all the detail required in a Basin

Plan.

(5) A direction by the Minister under subsection (1) is a legislative

instrument.

8 Approval of Interim Basin Plan

(1) If the Minister gives a direction under subsection 7(1), within 30

days of receiving the Interim Basin Plan from the Authority the

Minister must either:

Part 2 Po wers of Min ister in relation to management of Basin water resources

Section 9

4 Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008

(a) approve the Authority's Interim Basin Plan; or

(b) approve the Authority's amended Interim Basin Plan

provided to the Minister under paragraph (3)(a); or

(d) prepare an alternative Interim Basin Plan and approve it;

as an emergency measure to apply until such time as he or she

approves a Basin Plan that is consistent with the Water Act 2007.

(2) The Minister must, before amending the Authority's Interim Basin

Plan under paragraph (1)(c) or preparing an alternative Interim

Basin Plan under paragraph (1)(d), consult the Authority.

(3) If the Minister consults the Authority under subsection (2):

(a) the Authority may amend its Interim Basin Plan and provide

the amended Interim Basin Plan to the Minister within a

timeframe decided by the Minister; or

(b) the Minister may amend the Authority's Interim Basin Plan

under paragraph (1)(c) or prepare an alternative Interim

Basin Plan under paragraph (1)(d).

(4) An Interim Basin Plan approved under subsection (1) is a

legislative instrument.

(5) When an Interim Basin Plan approved under paragraph (1)(b), (c)

or (d) is laid before a House of the Parliament under the Legislative

Instruments Act 2003, the Minister must also lay before that House

a document that sets out the Minister's reasons for not approving

the Authority's Interim Basin Plan under paragraph (1)(a).

9 Matters that may be determined by Minister

(1) The Minister may, to give effect to the objects of this Act,

determine:

(a) interim water sharing regimes; and

(b) interim allocation arrangements; and

(d) interim water accounting rules; and

(e) rules for arrangements for sale and purchase and movement

of water among Basin States; and

Powers of Minister in relation to management of Basin water resources Part 2

Section 10

Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008 5

(f) the allocation of water for essential system maintenance,

conveyance and environmental purposes; and

(g) any other matter necessary to give effect to the objects of this

Act.

(2) In making a determination under subsection (1), the Minister must

have regard to the matters set out in section 12.

(3) A determination under subsection (1) is a legislative instrument.

10 Sharing regime

In the interests of sustaining and protecting the environment and to

assist in making any determination under subsection 9(1),

including in relation to any water resource plan area, the Minister

must determine:

(a) the share of water needed to maintain Basin water resources

in a manner that enables water of reasonable quality to be

conveyed to water users, to maintain essential system

functions and to maintain water quality; and

(b) the share of the remaining non-flood water to which a Basin

State is entitled; and

separate and clearly identifiable holder of an inalienable

entitlement to water allocations in the water resource plan

area.

11 Activities inconsistent with relevant international agreements

The Minister may make a determination that certain activities are

inconsistent with relevant international agreements.

Part 3 Matters to which Min ister must have regard when making a determination

Section 12

6 Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008

Part 3--Matters to which Minister must have

regard when making a determination

12 Matters to which Minister must have regard whe n making a

determination

In making a determination under this Act, the Minister must have

regard to:

(a) the principles set out in the National Water Initiative which

have been agreed to by all governments of the

Commonwealth of Australia;

(b) critical human needs;

obligations;

(d) community needs;

(e) the importance of efficient market processes in determining

the most appropriate way to use water and to facilitate

structural adjustment;

(f) the importance to the economy and communities of

maintaining permanent plantings;

(g) relevant international agreements;

(h) the possibility that all or some parts of the Murray-Darling

Basin may be experiencing adverse climate change, so that it

may not be possible to sustain all forms of water use in the

Murray-Darling Basin and that any adjustment burden must

shared equitably across the Murray-Darling Basin;

(i) the need for economically efficient water use and investment;

(j) any other benefits available to particular users of Basin water

resources;

(k) the need to prevent activities that contribute to the improper

use, storage and diversion of water;

(l) any other matter to which the Minister considers it necessary

to have regard.

Constitution and powers of Authority in relation to implementation, comp liance and

enforcement of Interim Basin Plan Part 4

Section 13

Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008 7

Part 4--Constitution and powers of Authority in

relation to implementation, compliance and

enforcement of Interim Basin Plan

13 Constitution of Authority

(1) For the purposes of implementing this Act or an Interim Basin Plan

approved under this Act, the Authority consists of:

(a) the Chair of the Authority; and

(b) the Chief Executive Officer of the Authority; and

(2) In order to ensure timely development and implementation of an

Interim Basin Plan under this Act, if the Chair or a member of the

Authority is appointed under the Water Act 2007 on a part-time

basis, then for the purposes of this Act, the Chair and those such

members are temporarily appointed on a full-time basis and are to

be paid such additional remuneration and allowances as are

prescribed in the regulations.

14 Powe rs of Authority in relation to implementation, compliance

and enforce ment of Interim Basin Plan

(1) The Authority is responsible for implementing an Interim Basin

Plan.

(2) For the purposes of investigating compliance with and enforcing an

Interim Basin Plan, the Authority has the same enforcement

powers as it has under the Water Act 2007, except to the extent of

any inconsistency with this Act.

(3) For the purposes of investigating compliance with and enforcing an

Interim Basin Plan, the Authority also has the same enforcement

powers as the ACCC and the Minister have under the Water Act

2007, except to the extent of any inconsistency with this Act.

Part 5 Regulation of water trade

Section 15

8 Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008

Part 5--Regulation of water trade

15 Trade and comme rce power

(1) In trade and commerce, no natural person or agency of a State may

limit or impede the transfer or sale and purchase of water access

entitlements, water access rights and water allocations among

Basin States.

(2) In this section:

trade and commerce has the same meaning as in paragraph 51(i)

of the Constitution.

16 Inconsistent State or Territory actions

A State or Territory must not act in any manner which is

inconsistent with an Interim Basin Plan or a determination made

under this Act.

17 Activities by constitutional corporations

(1) A constitutional corporation, its employees or agents after the

commencement of this Act must not impede, without the consent

of the Minister or the Authority, the flow of water from the

Murray-Darling Basin by:

(a) building dams; or

(b) building pipelines; or

(d) building irrigation channels; or

(e) sinking bores; or

(f) pumping water; or

(g) planting crops or trees; or

(h) taking part in any other activity, function, relationship or

business that results in the diversion of Basin water resources

from the Murray-Darling Basin.

Regulation of water trade Part 5

Section 18

Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008 9

(2) A constitutional corporation, its employees or agents after the

commencement of this Act must not take part, without the consent

of the Minister or the Authority, in any activity that diverts or

significantly intercepts Basin water resources from the

Murray-Darling Basin.

(3) A consent given by the Minister or the Authority under

subsection (1) or (2) must not have any adverse effect on the

amount of Basin water resources available for use within the

Murray-Darling Basin.

18 Acquisition of property

(1) The Minister may, in accordance with any provision of an Interim

Basin Plan approved under section 8, acquire from a person on just

terms a proportion or all of a water access entitlement or a water

access right in a water resource plan area, or any land associated

with an acquired water access entitlement or an acquired water

access right if appropriate, for one or both of the following

purposes:

(a) maintaining the reliability of water access entitlements and

water access rights; or

(b) returning water use to sustainable limits.

(2) If the Commonwealth and the person do not agree on the amount to

be paid, the person may institute proceedings in the Federal Court

of Australia for the recovery from the Commonwealth of such

reasonable amount as the court determines

(3) In this section:

acquisition of property has the same meaning as in

paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

Part 5 Regulation of water trade

Section 19

10 Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008

19 Declaration of taxation schemes detrime ntal to management of

Basin water resources

(1) The ACCC must inquire into the effects of arrangements in the

Income Tax Assessment Act 1997 on:

(a) the water market; and

(b) the nature of irrigation practice and investment;

and provide advice to the Minister based on the outcome of the

inquiry.

(2) Acting on the advice of the ACCC, the Minister may determine

that a taxation scheme is detrimental to management of the Basin

water resources.

(3) The Minister must give a copy of a determination made under

subsection (2) to the Treasurer.

(4) If the Minister gives a copy of a determination to the Treasurer

under subsection (3), the Treasurer must cause a report to be

prepared in response to the determination.

(5) The Treasurer must cause a copy of a report prepared under

subsection (4) to be laid before each House of the Parliament

within 15 sitting days of that House after the completion of the

preparation of the report.

20 Failure to comply with Interim Basin Plan made under this Act

(1) If a Basin State fails to comply with an Interim Basin Plan or any

determination made under this Act, the Minister must assess:

(a) the impact of that failure to comply on the other shares

determined under section 10 in the Basin water resources;

and

(b) the quantitative effect of that failure to comply on the Basin

water resources.

(2) If a Basin State fails to comply with any determination made under

this Act, the Minister must by determination reduce that Basin

State's share in the Basin water resources as determined under

section 10 by ten times the quantitative effect of that failure to

comply as assessed under paragraph (1)(b).

Part 6 Miscellaneous

Section 21

12 Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008

Part 6--Miscellaneous

21 Inconsistent Commonwealth laws

(1) If a provision of this Act is inconsistent with a provision of any

other law of the Commonwealth, the relevant provision of this Act

has effect despite the provision of that other law and that provision

of the other law is, to the extent of any inconsistency, invalid.

(2) A provision of this Act and a provision of any other law of the

Commonwealth must not be taken for the purposes of this section

to be inconsistent to the extent that they are capable of operating

concurrently.

22 Application of Legislative Instruments Act 2003

A determination made, or an Interim Basin Plan approved by, the

Minister under a provision of this Act is a legislative instrument for

the purposes of the Legislative Instruments Act 2003.

23 Annual report by Minister

(1) As soon as practicable after each 30 June, the Minister must cause

to be prepared a report on the operation of this Act for the 12

months ending on that 30 June.

(2) The Minister must cause a copy of a report prepared under

subsection (1) to be laid before each House of the Parliament

within 15 sitting days of that House after the day on which the

Minister receives the report.

24 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Amend ment of the Water Act 2007 Schedule 1

Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008 13

Schedule 1

Amendment of the Water Act

2007

1 After Subdivision B of Division 2 of Part 9

Insert:

Subdivision BA--Chief Executive Officer

180A Chief Executive Officer

(1) There is to be a Chief Executive Officer of the Authority.

(2) The Chief Executive Officer is to be appointed on a full-time basis.

(3) The Chief Executive Officer is to be appointed by the

Governor-General by written instrument.

(4) The Chief Executive Officer is appointed for the period specified

in his or her instrument of appointment. The period must not

exceed 4 years.

Note:

For re-appointment, see subsection 33(4A) of the Acts Interpretation

Act 1901.

180B Duties

(1) The Chief Executive Officer is responsible for the day-to-day

administration and management of the Authority and the control of

its operations.

(2) The Chief Executive Officer is to act in accordance with any

policies determined, and any directions given, by the Authority in

writing.

(3) The Chief Executive Officer has such other duties (if any) not

covered by this Act that are determined by the Governor-General.

Schedule 1 A mendment of the Water Act 2007

14 Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008

180C Delegation

The Chief Executive Officer may, in writing, delegate to a member

of the staff of the Authority all or any of the duties or powers of the

Chief Executive Officer, unless the regulations otherwise provide.

180D Standing obligation to disclose interests

(1) The Chief Executive Officer must disclose any interest the Chief

Executive Officer has if that interest could conflict with the proper

performance of the duties of the Chief Executive Officer.

Disclosure is required whether or not there is any particular matter

under consideration that gives rise to an actual conflict of interest.

Note:

The Chief Executive Officer must also disclose the interest under

section 180E if the interest is in a matter being considered or about to

be considered by the Authority.

(2) The disclosure must be by written notice given to the Minister as

soon as practicable after the Chief Executive Officer becomes

aware of the potential for conflict of interest.

(3) Subsection (1) applies to interests:

(a) whether direct or indirect, and whether or not pecuniary; and

(b) whether acquired before or after the Chief Executive

Officer's appointment.

180E Obligation to disclose interests before conside ring a particular

matter

(1) If:

(a) the Chief Executive Officer has an interest in a matter being

considered or about to be considered by the Authority; and

(b) the interest is an interest that could conflict with the proper

performance of the duties of the Chief Executive Officer, as

those duties give the Chief Executive Officer a role in

deciding a matter;

the Chief Executive Officer must disclose the nature of the interest

to a meeting of the Authority.

Amend ment of the Water Act 2007 Schedule 1

Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008 15

(2) The disclosure must be made as soon as possible after the relevant

facts have come to the Chief Executive Officer's knowledge.

(3) The disclosure must be recorded in the minutes of the meeting of

the Authority.

(4) Unless the Authority otherwise determines, the Chief Executive

Officer:

(a) must not be present during any deliberation by the Authority

on the matter; and

(b) must not take part in any decision of the Authority with

respect to the matter.

(5) For the purposes of making a determination under subsection (4),

the Chief Executive Officer:

(a) must not be present during any deliberation of the Authority

for the purpose of making the determination; and

(b) must not take part in making the determination.

(6) A determination under subsection (4) must be recorded in the

minutes of the meeting of the Authority.

(7) Subsection (1) applies to interests:

(a) whether direct or indirect, and whether or not pecuniary; and

(b) whether acquired before or after the Chief Executive

Officer's appointment.

180F Outside employment

The Chief Executive Officer must not engage in paid employment

outside the duties of the Chief Executive Officer's office without

the Minister's approval.

180G Remuneration and allowances

(1) The Chief Executive Officer is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the Chief

Executive Officer is to be paid the remuneration that is prescribed

in the regulations.

Schedule 1 A mendment of the Water Act 2007

16 Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008

(2) The Chief Executive Officer is to be paid the allowances that are

prescribed in the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

180G Leave of absence

(1) The Chief Executive Officer has the recreation leave entitlements

that are determined by the Remuneration Tribunal.

(2) The Minister may grant the Chief Executive Officer leave of

absence, other than recreation leave, on the terms and conditions as

to remuneration or otherwise that the Minister determines.

180H Resignation

(1) The Chief Executive Officer may resign his or her appointment by

giving the Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

180I Termination of appointme nt

(1) The Governor-General may terminate the appointment of the Chief

Executive Officer for misbehaviour or physical or mental

incapacity.

(2) The Governor-General may terminate the appointment of the Chief

Executive Officer if:

(a) the Chief Executive Officer:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

Amend ment of the Water Act 2007 Schedule 1

Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008 17

(b) the Minister is satisfied that the performance of the Chief

Executive Officer has been unsatisfactory; or

absence, for 14 consecutive days or for 28 days in any 12

consecutive months; or

(d) the Chief Executive Officer engages, except with the

Minister's approval, in paid employment outside the duties of

his or her office; or

(f) the Chief Executive Officer fails, without reasonable excuse,

to comply with section 180D or 180E.

180J Other terms and conditions

The Chief Executive Officer holds office on the terms and

conditions (if any) in relation to matters not covered by this Act

that are determined by the Governor-General.

180K Acting Chief Executive Officer

Acting Chief Executive Officer

(1) The Minister may appoint a person to act as the Chief Executive

Officer:

(a) during a vacancy in the office of Chief Executive Officer,

whether or not an appointment has previously been made to

the office; or

(b) during any period, or during all periods, when the Chief

Executive Officer:

(i) is absent from duty or Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Validation

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

Schedule 1 A mendment of the Water Act 2007

18 Emergency Water (Murray-Darling Basin Rescue) Bill 2008 No. , 2008

(d) the occasion to act had not arisen or had ceased.

Note:

See section 33A of the Acts Interpretation Act 1901.

2 Subsection 206(2)

Repeal the subsection, substitute:

(2) For the purposes of the Public Service Act 1999:

(a) the Chief Executive Officer and the Authority staff together

constitute a Statutory Agency; and

(b) the Chief Executive Officer is the Head of that Statutory

Agency.

Commonwealth of Australia Bills

EMERGENCY WATER (MURRAY-DARLING BASIN RESCUE) BILL 2008