WATER AMENDMENT BILL 2008

2 Water Amendment Bill 2008 No. , 2008

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.

2. Schedule 1

Immediately after the commencement of the

provision(s) covered by table item 3.

3. Schedule 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in 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.

4. Schedule 3

Immediately after the commencement of the

provision(s) covered by table item 3.

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repealed as set out in the applicable items in the Schedule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.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 3

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

division derived from the dataset that is titled "Australias

River Basins 1997" and is dated 30 June 1997; and

(d) is held by the Commonwealth.

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4 Water Amendment Bill 2008 No. , 2008

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 Departments 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

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Water Amendment Bill 2008 No. , 2008 5

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 States initial reference

terminates.

(6) Subject to subsections (7) and (8), a State ceases to be a referring

State if the States 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

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

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6 Water Amendment Bill 2008 No. , 2008

(ii) this subsection will apply in relation to the State from a

day specified in the notice; and

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

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Water Amendment Bill 2008 No. , 2008 7

(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;

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 Amendme nt 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

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8 Water Amendment Bill 2008 No. , 2008

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.

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Water Amendment Bill 2008 No. , 2008 9

(4) However, the application of subsection (3) to the Authoritys

powers under Part 10 is limited to the Authoritys 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

(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 Authoritys functions under

section 219 included references to the Authoritys 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 Authoritys 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

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 Authoritys functions

under this Part; and

(ii) specified in regulations made for the purposes of this

paragraph;

is in the persons possession, custody or control (whether

held electronically or in any other form).

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10 Water Amendment Bill 2008 No. , 2008

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, powe rs 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

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;

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Water Amendment Bill 2008 No. , 2008 11

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.

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12 Water Amendment Bill 2008 No. , 2008

(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

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

at which water in the River Murray System becomes

unsuitable for meeting critical human water needs.

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Water Amendment Bill 2008 No. , 2008 13

(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

manage ment

(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

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

arrange ments

(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:

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14 Water Amendment Bill 2008 No. , 2008

(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

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.

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Water Amendment Bill 2008 No. , 2008 15

(3) The arrangements referred to in paragraph (1)(d) must:

(a) recognise South Australias 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 States share at any given

time.

86E Additional matters relating to Tier 3 water sharing

arrange ments

(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

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16 Water Amendment Bill 2008 No. , 2008

in the River Murray System to meet critical human water

needs during the next 12 months.

86F Eme rgency responses to the reaching of trigge r 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 othe r 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:

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Water Amendment Bill 2008 No. , 2008 17

(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 Authoritys

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

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18 Water Amendment Bill 2008 No. , 2008

(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 powe rs 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 Authoritys 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 Authoritys functions under

section 219 included references to the Authoritys 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

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 Authoritys 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

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Water Amendment Bill 2008 No. , 2008 19

(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

Authoritys functions under this Part and that is

specified in regulations made for the purposes of this

paragraph;

is in the persons possession, custody or control (whether

held electronically or in any other form).

3 After Part 3

Insert:

Part 4--Basin water charge and water market rules

Division 1--Water charge rules

91 Regulated water charges

(1) This Division applies to the following kinds of charges:

(a) fees or charges (however described) payable to an irrigation

infrastructure operator for:

(i) access to the operators irrigation network (or services

provided in relation to that access); or

(ii) changing access to the operators irrigation network (or

services provided in relation to that access); or

(iii) terminating access to the operators irrigation network

(or services provided in relation to that access); or

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20 Water Amendment Bill 2008 No. , 2008

(iv) surrendering to the operator a right to the delivery of

water through the operators irrigation network;

(b) bulk water charges;

(d) a fee or charge (however described) that relates to:

(i) access to water service infrastructure; or

(ii) services provided in relation to access to water service

infrastructure; or

(iii) services provided through the operation of water service

infrastructure; or

(iv) the taking of water from a water resource;

and is of a kind prescribed by the regulations for the purposes

of this paragraph.

(2) This Division applies to a charge of the kind referred to in

subsection (1) only to the extent to which the charge relates to:

(a) Basin water resources; or

(b) water service infrastructure that carries Basin water

resources; or

taken from a Basin water resource; or

(d) water access rights, irrigation rights or water delivery rights

in relation to Basin water resources.

(3) However, this Division does not apply to charges in respect of

urban water supply activities beyond the point at which the water

has been removed from a Basin water resource.

(4) Charges to which this Division applies are regulated water

charges for the purposes of this Act.

92 Wate r charge rules

(1) The Minister may make rules (to be called water charge rules),

applying in Basin States that are referring States and in the

Australian Capital Territory, that:

(a) relate to regulated water charges; and

(b) deal with one or more of the matters referred to in

subsection (3); and

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Water Amendment Bill 2008 No. , 2008 21

and principles set out in Schedule 2.

(2) Water charge rules are legislative instruments.

(3) Water charge rules may deal with the following matters:

(a) the rules that must be applied in determining the amount of:

(i) regulated water charges generally; or

(ii) regulated water charges of a particular kind;

(b) the terms and conditions that may, or must not, be imposed in

relation to:

(i) regulated water charges generally; or

(ii) regulated water charges of a particular kind;

water charges;

(d) the process to be followed in applying for, and making or

giving, determinations or approvals of the kind referred to in

paragraph (c);

(e) the accreditation by the ACCC of arrangements under which

regulated water charges are determined or approved by

agencies of the States (instead of by the ACCC);

(f) the process to be followed in applying for, and making or

giving, accreditation of the kind referred to in paragraph (e);

(g) the terms and conditions on which arrangements are

accredited under rules made for the purposes of paragraph (e)

(including the determination of some or all of those terms

and conditions by the ACCC);

(h) the obligations to be imposed in relation to the accreditation

of arrangements under rules made for the purposes of

paragraph (e) (including the determination of some or all of

those obligations by the ACCC);

(i) the prohibition of regulated water charges of a particular kind

in the circumstances specified in the rules;

(j) the imposition of a requirement on the person determining

the amount of regulated water charges to publish:

(i) the details of the charges; and

(ii) the process for determining the amount of the charges;

(k) transitional arrangements for the introduction of, or changes

to, water charge rules;

(l) any matter that was dealt with in:

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22 Water Amendment Bill 2008 No. , 2008

(i) paragraph 15(3)(c) of Schedule E to the former MDB

Agreement; or

(ii) the Access and Exit Fees Protocol to the former MDB

Agreement made under paragraph 6(1)(f) of Schedule E

to the former MDB Agreement.

(4) Without limiting paragraph (3)(c), water charge rules may specify

the effect, and duration, of a determination or approval of the kind

referred to in that paragraph.

(5) Without limiting paragraph (3)(d), water charge rules may specify:

(a) the information that an applicant for a determination or

approval of the kind referred to in paragraph (3)(c) must give

the ACCC in relation to the application; and

(b) the timing of the steps in the process in which:

(i) the application is made; and

(ii) the determination is made or the approval is given.

(6) Without limiting paragraph (3)(e), the rules made for the purposes

of that paragraph may provide for the circumstances in which:

(a) an accreditation may be revoked; or

(b) the terms and conditions on which an accreditation is given

may be varied.

(7) Without limiting subsection (3), particular water charge rules may

be limited to either or both of the following:

(a) particular kinds of regulated water charges;

(b) regulated water charges in relation to particular water

resources.

(8) Without limiting subsection (3), water charge rules may provide

that a particular provision of the rules is a civil penalty provision.

(9) The civil penalty for a contravention of a provision specified under

subsection (8) is 200 penalty units.

(10) Without limiting subsection (3), water charge rules may provide

that a person who suffers loss or damage as a result of conduct, or

an omission, of another person that contravenes the water charge

rules may recover the amount of the loss or damage by action

against that other person or against any person involved in the

contravention.

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Water Amendment Bill 2008 No. , 2008 23

93 Process for making water charge rules

(1) The Minister must ask the ACCC for advice about water charge

rules the Minister proposes to make, or about proposed

amendments or revocations of rules.

(2) The ACCC must give the Minister advice about the proposed water

charge rules, or proposed amendments or revocations.

(3) In giving advice to the Minister about proposed water charge rules,

or proposed amendments or revocations, in relation to regulated

water charges payable to infrastructure operators, the ACCC must

have regard to:

(a) the governance arrangements of those operators; and

(b) the current charging arrangements of those operators; and

(4) The Minister must have regard to the ACCCs advice in making,

amending or revoking the water charge rules.

(5) The regulations must provide for the process that the Minister is to

follow in making, amending or revoking water charge rules.

(6) Without limiting subsection (5), the regulations must provide for:

(a) consultations with the Basin States and with infrastructure

operators; and

(b) public consultations;

as part of the process of making, amending or revoking water

charge rules.

(7) If:

(a) the Minister makes, amends or revokes water charge rules;

and

(b) the rules do not reflect the advice that the ACCC gave the

Minister under subsection (2) in relation to the rules, or the

amendments or revocations;

the Minister must, when the rules, amendments or revocations are

laid before a House of the Parliament under the Legislative

Instruments Act 2003, also lay before that House a document that

sets out:

do not reflect the advice given by the ACCC; and

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24 Water Amendment Bill 2008 No. , 2008

(d) the Ministers reasons for departing from that advice.

94 ACCC to monitor water charges and compliance

(1) The ACCC is to monitor:

(a) regulated water charges; and

(b) compliance with the water charge rules.

(2) The ACCC must give the Minister a report on the results of such

monitoring.

(3) The reports under subsection (2) must be given to the Minister in

accordance with an agreement between the Minister and the

ACCC.

95 Minister may formulate model wate r charge rules

(1) The Minister may formulate, in writing, model rules for regulated

water charges.

Note:

The model rules do not have any legal effect under this Act but are

available for adoption by States, Territories, infrastructure operators

and other persons.

(2) Model rules formulated under subsection (1) are not legislative

instruments.

96 Transitional provisions relating to wate r charge rules

(1) A request that the Minister made to the ACCC before the

commencement of this section, under subsection 93(1) as in force

before that commencement, is taken after that commencement to

be a request that the Minister made under that subsection as in

force after that commencement.

(2) Regulations made before the commencement of this section for the

purposes of subsection 93(5) or (6) as in force before that

commencement continue in force after that commencement as if

they were made for the purposes of that subsection as in force after

that commencement.

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Water Amendment Bill 2008 No. , 2008 25

Division 2--Water market rules

97 Wate r market rules

(1) The Minister may make rules (to be called water market rules),

applying in Basin States that are referring States and in the

Australian Capital Territory, that:

(a) relate to an act that an irrigation infrastructure operator does,

or fails to do, in a way that prevents or unreasonably delays

arrangements being made that would reduce the share

component of a water access entitlement of the operator to

allow:

(i) a persons entitlement to water under an irrigation right

against the operator; or

(ii) a part of that entitlement;

to be permanently transformed into a water access

entitlement that is held by someone other than the operator;

and

(b) contribute to achieving the Basin water market and trading

objectives and principles set out in Schedule 3.

Arrangements of the kind referred to in paragraph (a) are referred

to in this section as transformation arrangements.

(2) Water market rules are legislative instruments.

(3) Without limiting subsection (1), water market rules may deal with

the restrictions that an irrigation infrastructure operator may, or

may not, impose in relation to:

(a) transformation arrangements; or

(b) the trading or transferring, by a person who had an irrigation

right against the operator, of a water access entitlement, or

part of such an entitlement, obtained as a result of

transformation arrangements.

(4) Without limiting subsection (3), the restrictions referred to in that

subsection include:

(a) restrictions imposed by including provisions in a contract,

arrangement or understanding between an irrigation

infrastructure operator and:

(i) a person who has an irrigation right against the operator;

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26 Water Amendment Bill 2008 No. , 2008

(ii) a person who has a water access entitlement, or part of

such an entitlement, that the person obtained as a result

of transformation arrangements in relation to an

irrigation right the person had against the operator; and

(b) restrictions imposed by the way in which an irrigation

infrastructure operator conducts its operations.

(5) Without limiting subsection (1), water market rules may:

(a) permit an irrigation infrastructure operator to require security

before allowing:

(i) a person who holds an irrigation right against the

operator to obtain a water access entitlement, or part of

such an entitlement, through transformation

arrangements in relation to the irrigation right; or

(ii) a person who has obtained a water access entitlement, or

part of such an entitlement, as a result of transformation

arrangements in relation to an irrigation right the person

had against the operator to trade or transfer the water

access entitlement, or part, obtained; and

(b) provide for transitional arrangements in relation to contracts

that have been entered into between an irrigation

infrastructure operator and another person before water

market rules are made or amended.

(6) Water market rules must not prevent an irrigation infrastructure

operator from:

(a) imposing, or requiring the payment of, a regulated water

charge; or

(b) requiring the approval of a person who holds a legal or

equitable interest in an irrigation right that a person has

against the operator before allowing transformation

arrangements in relation to that irrigation right.

(7) Without limiting subsection (1), water market rules may provide

that a particular provision of the rules is a civil penalty provision.

(8) The civil penalty for a contravention of a provision specified under

subsection (7) is 200 penalty units.

(9) Without limiting subsection (1), water market rules may provide

that a person who suffers loss or damage as a result of conduct, or

an omission, of another person that contravenes the water market

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Water Amendment Bill 2008 No. , 2008 27

rules may recover the amount of the loss or damage by action

against that other person or against any person involved in the

contravention.

(10) No claim, action or demand may be made, asserted or taken against

an irrigation infrastructure operator for anything done by the

operator solely for the purpose of complying with water market

rules.

(11) Before the Basin Plan first takes effect, this section applies in

relation to any entitlement that is a perpetual or ongoing

entitlement, by or under a law of a State or Territory, to exclusive

access to a share of the Basin water resources as if the entitlement

were a water access entitlement.

98 Process for making water market rules

(1) The Minister must ask the ACCC for advice about water market

rules the Minister proposes to make, or about proposed

amendments or revocations of rules.

(2) The ACCC must give the Minister advice about the proposed water

market rules, or proposed amendments or revocations.

(3) The Minister must have regard to the ACCCs advice in making,

amending or revoking the water market rules.

(4) The regulations must provide for the process that the Minister is to

follow in making, amending or revoking water market rules.

(5) Without limiting subsection (4), the regulations must provide for:

(a) consultations with the Basin States and with infrastructure

operators; and

(b) public consultations;

as part of the process of making, amending or revoking water

market rules.

(6) If:

(a) the Minister makes, amends or revokes water market rules;

and

(b) the rules do not reflect the advice that the ACCC gave the

Minister under subsection (2) in relation to the rules, or the

amendments or revocations;

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28 Water Amendment Bill 2008 No. , 2008

the Minister must, when the rules, amendments or revocations are

laid before a House of the Parliament under the Legislative

Instruments Act 2003, also lay before that House a document that

sets out:

do not reflect the advice given by the ACCC; and

(d) the Ministers reasons for departing from that advice.

99 ACCC to monitor transformation arrangements and compliance

(1) The ACCC is to monitor:

(a) transformation arrangements; and

(b) compliance with the water market rules.

(2) The ACCC must give the Minister a report on the results of such

monitoring.

(3) The reports under subsection (2) must be given to the Minister in

accordance with an agreement between the Minister and the

ACCC.

100 Transitional provisions relating to wate r market rules

(1) A request that the Minister made to the ACCC before the

commencement of this section, under subsection 98(1) as in force

before that commencement, is taken after that commencement to

be a request that the Minister made under that subsection as in

force after that commencement.

(2) Regulations made before the commencement of this section for the

purposes of subsection 98(4) or (5) as in force before that

commencement continue in force after that commencement as if

they were made for the purposes of that subsection as in force after

that commencement.

Division 3--Miscellaneous

100A Functions and powe rs of the ACCC

The ACCC has, for the purposes of this Part:

(a) the functions and powers conferred on it under Part 8 as an

appropriate enforcement agency; and

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Water Amendment Bill 2008 No. , 2008 29

(b) the functions and powers conferred on it under section 155 of

the Trade Practices Act 1974.

4 Before Part 5

Insert:

Part 4A--Extended operation of Basin water

charge and water market rules

100B Extended operation of Basin water charge rules

(1) Water charge rules, and Division 1 of Part 4, apply in relation to all

of the water resources in a referring State, or part of a referring

State, that are not Basin water resources if:

(a) a law of the State provides that this section applies to the

State, or that part of the State; and

(b) the regulations provide that this section applies to the State,

or that part of the State.

(2) Water charge rules, and Division 1 of Part 4, apply in relation to all

of the water resources in the Northern Territory, or part of the

Territory, if:

(a) a law of the Northern Territory provides that this section

applies to the Territory, or that part of the Territory; and

(b) the regulations provide that this section applies to the

Northern Territory, or that part of the Territory.

(3) However, water charge rules, and Division 1 of Part 4, do not

apply in relation to:

(a) water resources that are prescribed by the regulations for the

purposes of this paragraph; and

(b) urban water supply activities beyond the point at which the

water has been removed from a water resource in the

referring State, or the Northern Territory.

(4) This section has effect despite subsection 91(2).

(5) This section does not affect the operation of Part 4 in relation to

Basin water resources.

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30 Water Amendment Bill 2008 No. , 2008

100C Extende d ope ration of Basin water market rules

(1) Water market rules, and Division 2 of Part 4, apply in relation to

all the non-Basin water access entitlements in a referring State, or

in a particular area of a referring State, if:

(a) a law of the State provides that this section applies in relation

to the non-Basin water access entitlements in the State, or in

that area of the State; and

(b) the regulations provide that this section applies in relation to

the non-Basin water access entitlements in the State, or in

that area of the State.

(2) Water market rules, and Division 2 of Part 4, apply in relation to

all the non-Basin water access entitlements in the Northern

Territory, or in a particular area of the Northern Territory if:

(a) a law of the Northern Territory provides that this section

applies in relation to the non-Basin water access entitlements

in the Territory, or in that area of the Territory; and

(b) the regulations provide that this section applies in relation to

the non-Basin water access entitlements in the Territory, or in

that area of the Territory.

(3) However, water market rules, and Division 2 of Part 4, do not

apply in relation to non-Basin water access entitlements that are

prescribed by the regulations for the purposes of this subsection.

(4) Water market rules, and Division 2 of Part 4, apply for the

purposes of this section as if non-Basin water access entitlements

were water access entitlements.

(5) A non-Basin water access entitlement is a perpetual or ongoing

entitlement, by or under a law of a State or Territory, to exclusive

access to a share of the water resources of an area in the State or

Territory that are not Basin water resources.

(6) This section does not affect the operation of Part 4 in relation to

Basin water resources.

100D Functions and powe rs of the ACCC

The ACCC has, for the purposes of this Part:

(a) the functions and powers conferred on it under Part 8 as an

appropriate enforcement agency; and

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Water Amendment Bill 2008 No. , 2008 31

(b) the functions and powers conferred on it under section 155 of

the Trade Practices Act 1974.

5 After Part 10

Insert:

Part 10A--Transitional matters relating to the

Murray-Darling Basin Commission

Division 1--Preliminary

239A Definitions

In this Act:

former MDB Agreement has the same meaning as Agreement had

in the Murray-Darling Basin Act 1993 immediately before the

commencement of Schedule 2 to the Water Amendment Act 2008,

including all of the changes to that agreement that the former

Murray-Darling Basin Ministerial Council had agreed to before the

commencement of that Schedule.

former Murray-Darling Basin Ministerial Council has the same

meaning as Murray-Darling Basin Ministerial Council had in this

Act immediately before the commencement of Schedule 2 to the

Water Amendment Act 2008.

Murray-Darling Basin Commission has the same meaning as

Commission had in the Murray-Darling Basin Act 1993

immediately before the commencement of Schedule 2 to the Water

Amendment Act 2008.

239B Application of this Part

This Part applies if each of the Basin States (other than the

Australian Capital Territory) is a referring State.

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32 Water Amendment Bill 2008 No. , 2008

Division 2--Assets, liabilities and legal proceedings

239C Vesting of assets of Murray-Darling Basin Commission

(1) On the commencement of this Part, the transitional assets of the

Murray-Darling Basin Commission immediately before that

commencement:

(a) cease to be assets of the Murray-Darling Basin Commission;

and

(b) become assets of the Authority without any conveyance,

transfer or assignment.

(2) The Authority becomes the successor in law in relation to the

transitional assets.

(3) A transitional asset is:

(a) any legal or equitable estate or interest in real or personal

property, whether actual, contingent or prospective; or

(b) any right, power, privilege or immunity, whether actual,

contingent or prospective;

but does not include a right, power, privilege or immunity

conferred by:

(d) regulations or other subordinate legislation made under an

Act; or

(e) the Murray-Darling Basin Act 1992 of New South Wales; or

(f) the Murray-Darling Basin Act 1993 of Victoria; or

(g) the Murray-Darling Basin Act 1996 of Queensland; or

(h) the Murray-Darling Basin Act 1993 of South Australia; or

(i) the former MDB Agreement.

239D River Murray Ope rations assets unaffected

(1) This Part does not affect:

(a) the ownership or control of River Murray Operations assets;

(b) the application of the Agreement in relation to River Murray

Operations assets.

(2) River Murray Operations assets are:

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Water Amendment Bill 2008 No. , 2008 33

(a) the works set out in Schedule A to the former MDB

Agreement; and

(b) any other works the construction of which was authorised

under subclause 50(1) of the former MDB Agreement

(including any works authorised under Schedule C to the

former MDB Agreement); and

Murray-Darling Basin Commission under subclause 73(1) of

the former MDB Agreement.

Note:

The Agreement provides for how these assets are to be dealt with

(including in accordance with directions given by the Authority).

239E Living Murray Initiative assets unaffected

(1) This Part does not affect:

(a) the ownership or control of Living Murray Initiative assets;

(b) the application of the Living Murray Initiative in relation to

Living Murray Initiative assets.

(2) Living Murray Initiative assets are:

(a) water access rights, water delivery rights, irrigation rights or

other similar rights relating to water; or

(b) interests in, or in relation to, such rights;

that are held by a person for the purposes of the Living Murray

Initiative, but do not include the legal title to such rights or

interests if the legal title was held by the Murray-Darling Basin

Commission in its own name immediately before the

commencement of this Part.

239F Vesting of liabilities of Murray-Darling Basin Commission

(1) On the commencement of this Part, the transitional liabilities of the

Murray-Darling Basin Commission immediately before that

commencement:

(a) cease to be liabilities of the Murray-Darling Basin

Commission; and

(b) become liabilities of the Authority without any conveyance,

transfer or assignment.

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34 Water Amendment Bill 2008 No. , 2008

(2) The Authority becomes the successor in law in relation to the

transitional liabilities.

(3) A transitional liability is any liability, duty or obligation, whether

actual, contingent or prospective, but does not include a liability,

duty or obligation imposed by:

(a) an Act; or

(b) regulations or other subordinate legislation made under an

Act; or

(d) the Murray-Darling Basin Act 1993 of Victoria; or

(e) the Murray-Darling Basin Act 1996 of Queensland; or

(f) the Murray-Darling Basin Act 1993 of South Australia; or

(g) the former MDB Agreement.

(4) To avoid doubt, this section does not apply to liabilities that relate

to River Murray Operations assets or Living Murray Initiative

assets, except to the extent that they are liabilities of the

Murray-Darling Basin Commission immediately before the

commencement of this Part.

Note:

The Agreement provides for the Basin States to indemnify the

Authority for liabilities that were, before the commencement of this

Part, liabilities of the Murray-Darling Basin Commission relating to

River Murray Operations assets.

239G Certificates relating to vesting of land etc.

(1) This section applies if:

(a) any legal or equitable estate or interest in real property,

whether actual, contingent or prospective (a real property

asset), vests in the Authority under this Part; and

(b) there is lodged, with the Registrar of Titles or other proper

officer of the State or Territory in which the real property

asset is situated, a certificate that:

(i) is signed by the Minister; and

(ii) identifies the real property asset, whether by reference

to a map or otherwise; and

(iii) states that the real property asset has become vested in

the Authority under this Part.

(2) The Registrar of Titles or other officer may:

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 35

(a) register the matter in a way that is the same as, or similar to,

the way in which dealings in real property assets of that kind

are registered; and

(b) deal with, and give effect to, the certificate.

(3) A certificate made under paragraph (1)(b) is not a legislative

instrument.

239H Certificates relating to vesting of assets other than land etc.

(1) This section applies if:

(a) any transitional asset other than a real property asset vests in

the Authority under this Part; and

(b) there is lodged, with the person or authority who, under a law

of the Commonwealth, a State or a Territory, under a trust

instrument or otherwise, has responsibility for keeping a

certificate that:

(i) is signed by the Minister; and

(ii) identifies the transitional asset; and

(iii) states that the transitional asset has become vested in the

Authority under this Part.

(2) The person or authority may:

(a) deal with, and give effect to, the certificate as if it were a

proper and appropriate instrument for transactions in relation

to assets of that kind; and

(b) make such entries in the register as are necessary having

regard to the effect of this Part.

(3) A certificate made under paragraph (1)(b) is not a legislative

instrument.

239J Substitution of Authority as a party to pending proceedings

(1) If any proceedings to which:

(a) the Murray-Darling Basin Commission; or

(b) a person in the persons capacity as the President or a

Commissioner;

was a party were pending in any court or tribunal immediately

before the commencement of this Part, from that commencement

Schedule 1 A mendments based on referrals of power

36 Water Amendment Bill 2008 No. , 2008

the Authority is substituted for the Murray-Darling Basin

Commission or the person as a party to the proceedings.

(2) The President is the person appointed in accordance with

subclause 20(1) of the former MDB Agreement, and includes a

Deputy President appointed under subclause 20(3) (in the capacity

of Deputy President or acting President).

(3) A Commissioner is a person appointed in accordance with

subclause 20(2) of the former MDB Agreement, and includes a

Deputy Commissioner appointed under that subclause.

Note:

The Agreement provides for the Basin States to indemnify the

Authority for a share of the costs associated with, or arising from,

proceedings covered by this section.

239K Rights to sue President or Commissioner become rights to sue

Authority

If a right to sue a person, in the persons capacity as the President

or a Commissioner, existed immediately before the commencement

of this Part, but had not been exercised, from that commencement

the right to sue:

(a) ceases to be a right to sue the person; and

(b) becomes a right to sue the Authority.

Note:

The Agreement provides for the Basin States to indemnify the

Authority for a share of the costs associated with rights covered by

this section.

239L President's or Commissioner's rights to sue become rights of

Authority

If a persons right to sue, in the persons capacity as the President

or a Commissioner, existed immediately before the commencement

of this Part, but had not been exercised, from that commencement

the right to sue:

(a) ceases to be a right of the person; and

(b) becomes a right of the Authority.

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Water Amendment Bill 2008 No. , 2008 37

239M Transfer of custody of Murray-Darling Basin Commission

records

(1) On the commencement of this Part, each record or document that

was in the custody of the Murray-Darling Basin Commission

immediately before that commencement is to be transferred into

the custody of the Authority.

(2) If, immediately before the commencement of this Part, the

Murray-Darling Basin Commission owed a duty of confidence to a

person in relation to a record or document transferred under this

section, the Authority owes the same duty of confidence to the

person after the transfer.

Division 3--Effect on instruments and things done

239N References in certain instruments to Murray-Darling Basin

Commission etc.

(1) If a transitional instrument is one or more of the following:

(a) an instrument that was made by the Murray-Darling Basin

Commission;

(b) an instrument to which the Murray-Darling Basin

Commission was a party;

Murray-Darling Basin Commission;

(d) an instrument under which any right or liability accrues or

may accrue to the Murray-Darling Basin Commission;

(e) any other instrument in which a reference is made to the

Murray-Darling Basin Commission;

it continues to have effect from the commencement of this Part as

if:

(f) references in the transitional instrument to the

Murray-Darling Basin Commission (however described)

were references to the Authority; and

(g) references in the transitional instrument to the former

Murray-Darling Basin Ministerial Council (however

described) were references to the Murray-Darling Basin

Ministerial Council; and

(h) references in the transitional instrument to the contracting

governments under the former MDB Agreement (however

Schedule 1 A mendments based on referrals of power

38 Water Amendment Bill 2008 No. , 2008

described) were references to the contracting governments

under the Agreement; and

(i) in the case of a protocol made under a Schedule to the former

MDB Agreement:

(i) references in the protocol to the former MDB

Agreement were references to the Agreement; and

(ii) references in the protocol to provisions of, or Schedules

to, the former MDB Agreement were references to the

corresponding provisions of, or Schedules to, the

Agreement; and

(iii) references in the protocol to other protocols made under

Schedules to the former MDB Agreement were

references to the corresponding protocols made under

Schedules to the Agreement.

(2) However, subsection (1) does not apply to a transitional instrument

specified in the regulations.

(3) If the regulations specify a transitional instrument for the purposes

of subsection (2), the regulations may also provide one or more of

the following:

(a) that the transitional instrument has effect as if references in

the transitional instrument to the Murray-Darling Basin

Commission (however described) were references as

specified in the regulations;

(b) that the transitional instrument has effect as if references in

the transitional instrument to the former Murray-Darling

Basin Ministerial Council (however described) were

references as specified in the regulations;

the transitional instrument to the contracting governments

(however described) were references as specified in the

regulations;

(d) in the case of a protocol made under a Schedule to the former

MDB Agreement--that the transitional instrument has effect

as if references to one or more of the following:

(i) the former MDB Agreement;

(ii) provisions of, or Schedules to, the former MDB

Agreement;

(iii) other protocols made under Schedules to the former

MDB Agreement;

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 39

were references as specified in the regulations.

(4) A transitional instrument is:

(a) an instrument of a legislative character; or

(b) an instrument of an administrative character (including a

resolution made by the Murray-Darling Basin Commission);

that was in force immediately before the commencement of this

Part, but does not include an Act, a State Act or an Act of a

Territory.

239P Things done by, or in relation to, the Murray-Darling Basin

Commission etc. under Acts and instruments

(1) If, before the commencement of this Part, a thing was done by or in

relation to the Murray-Darling Basin Commission, or a committee

of the Murray-Darling Basin Commission, under:

(a) a provision (the authorising provision) of an Act, other than

a provision of the MDB Act; or

(b) a provision (the authorising provision) of an instrument

made under a provision of an Act, other than a provision of

the MDB Act;

then the thing done has effect from that commencement as if it had

been done by or in relation to the Authority, or the corresponding

committee of the Authority, under the authorising provision as in

force from that commencement.

(2) However, if the thing done is included in a class of things specified

in the regulations, it has effect from that commencement as if it

had been done by or in relation to the person or body specified in

the regulations under the authorising provision as in force from that

commencement.

(3) This section does not change the time at which the thing was

actually done.

(4) The regulations may:

(a) provide that this section does not apply to a specified class of

things done; or

(b) clarify how a thing has effect as mentioned in subsection (1)

or (2).

Schedule 1 A mendments based on referrals of power

40 Water Amendment Bill 2008 No. , 2008

239Q Things done under the forme r MDB Agreement

(1) If:

(a) a thing was done before the commencement of this Part

under a provision of the former MDB Agreement, by or in

relation to, or pursuant to a resolution of, a body or person;

and

(b) the thing still had effect immediately before that

commencement; and

(i) a provision of the Agreement to be the corresponding

provision to the provision referred to in paragraph (a);

and

(ii) in relation to that corresponding provision, a body or

person to be the corresponding body or person to the

body or person referred to in that paragraph;

the thing done has effect from that commencement as if it had been

done under the corresponding provision by or in relation to, or

pursuant to a resolution of, the corresponding body or person.

(2) Regulations made for the purposes of paragraph (1)(c):

(a) may specify:

(i) a part of a provision of the Agreement to be the

corresponding provision to a provision referred to in

paragraph (1)(a); or

(ii) a provision of the Agreement, or a part of a provision of

the Agreement, to be the corresponding provision to a

part of a provision referred to in paragraph (1)(a); and

(b) may specify different corresponding bodies or persons in

relation to different parts of a provision of the Agreement.

This subsection may be applied in relation to the different ways in

which a provision can operate as if each of those ways were a

different part of the provision.

(3) If:

(a) a thing was done before the commencement of this Part

under a provision of the former MDB Agreement, by or in

relation to, or pursuant to a resolution of, the Murray-Darling

Basin Commission; and

(b) the thing still had effect immediately before that

commencement; and

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 41

Agreement; and

(d) subsection (1) does not apply;

the thing done has effect from that commencement as if it had been

done under the corresponding provision by or in relation to, or

pursuant to a resolution of, the Authority.

(4) However, subsection (3) does not apply to a thing specified in the

regulations.

(5) The application of subsection (1), (2) or (3) to the making of an

instrument is not taken, for the purposes of the Legislative

Instruments Act 2003, to constitute the making of a legislative

instrument by:

(a) in the case of subsection (1) or (2)--the corresponding body

or person referred to in that subsection; or

(b) in the case of subsection (3)--the Authority.

(6) This section applies to protocols to the former MDB Agreement as

if they were provisions of the former MDB Agreement, and applies

to protocols to the Agreement as if they were provisions of the

Agreement.

239R Continuation of committees established by Murray-Darling

Basin Commission

If:

(a) the Murray-Darling Basin Commission established a

committee before the commencement of this Part; and

(b) the committee was in existence immediately before that

commencement;

the committee continues in existence after that commencement as

if the Authority had, on that commencement, established it under

section 203 and appointed its members under section 204.

239S Continuation of Murray-Darling Basin Commission's

corporate plan

(1) For the purposes of this Act and the Agreement, the corporate plan

of the Murray-Darling Basin Commission in force immediately

before the commencement of this Part (the Commission's

corporate plan) is taken, from that commencement:

Schedule 1 A mendments based on referrals of power

42 Water Amendment Bill 2008 No. , 2008

(a) to be a corporate plan approved by the Murray-Darling Basin

Ministerial Council under clause 34 of the Agreement; and

(b) to be included, under paragraph 213A(3)(a), in any corporate

plan of the Authority that was in force immediately before

that commencement.

(2) The Authority must, as soon as practicable after that

commencement:

(a) review the Commissions corporate plan; and

(b) if the Authority considers it necessary or desirable for there

to be a significant variation to the plan--prepare a draft

amendment, and provide it to the Basin Officials Committee,

in accordance with the Agreement.

Division 4--Financial matters

239T Financial matters

(1) The following amounts (the transitional amounts) must be

credited to the Murray-Darling Basin Special Account:

(a) amounts that, immediately before the commencement of this

Part, are in bank accounts referred to in subclause 79(1) of

the former MDB Agreement;

(b) all other amounts in the Murray-Darling Basin Commissions

possession, custody or control immediately before that

commencement.

(2) If:

(a) under an arrangement (other than the former MDB

Agreement), a State paid the Murray-Darling Basin

Commission an amount for the purposes of the performance

of the Murray-Darling Basin Commissions functions; and

(b) all or part of that amount is a transitional amount;

then:

functions of the Authority include those functions of the

Murray-Darling Basin Commission; and

(d) the Authority must spend the transitional amount in

accordance with that arrangement and not otherwise.

(3) Sections 210 and 211 have effect subject to this section.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 43

Division 5--Miscellaneous

239U Exe mption from stamp duty and other State or Territory taxes

(1) No stamp duty or other tax is payable under a law of a State or a

Territory in respect of either of the following matters (exempt

matters):

(a) the vesting of a transitional asset or transitional liability

under this Part;

(b) the operation of this Part in any other respect;

or anything connected with an exempt matter.

(2) The Minister may certify in writing:

(a) that a specified matter is an exempt matter; or

(b) that a specified thing is connected with a specified exempt

matter.

(3) A certificate made under subsection (2) is not a legislative

instrument.

(4) The Minister may, by legislative instrument, certify in writing:

(a) that matters included in a specified class are exempt matters;

(b) that things included in a specified class are connected with

exempt matters included in a specified class.

(5) In all courts, and for all purposes (other than for the purposes of

criminal proceedings), a certificate under subsection (2) or (4) is

prima facie evidence of the matters stated in the certificate.

239V Certificates taken to be authentic

A document that appears to be a certificate made or issued under a

particular provision of this Part:

(a) is taken to be such a certificate; and

(b) is taken to have been properly made or issued;

unless the contrary is established.

Schedule 1 A mendments based on referrals of power

44 Water Amendment Bill 2008 No. , 2008

239W Regulations

(1) The regulations may provide for other transitional measures

relating to the replacement of:

(a) the Murray-Darling Basin Commission; or

(b) the former MDB Agreement; or

(2) Without limiting subsection (1), regulations under that subsection

may provide for powers of the Murray-Darling Basin Commission

or the former Murray-Darling Basin Ministerial Council:

(a) that were exercisable under the former MDB Agreement; and

(b) that are not otherwise provided for in this Act;

to be exercised by the Authority, the Basin Officials Committee or

the Murray-Darling Basin Ministerial Council.

(3) Without limiting subsection (1), regulations under that subsection

may provide for the ownership or control of weir no.5 Redbank

and weir no.7 Maude.

(4) Regulations made for the purposes of subsection (3) have effect

despite section 239D.

6 After Part 11

Insert:

Part 11A--Interactions with State laws

250A Meaning of Commonwealth water legislation

In this Act:

Commonwealth water legislation means this Act, the regulations

or any other instrument made under this Act.

250B 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:

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 45

(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 250D avoids direct inconsistency arising in some cases by

limiting the operation of the Commonwealth water legislation.

250C Commonwealth water legislation does not apply to matters

declared by law of referring State to be excluded matters

(1) Subsection (2) applies if a provision of a law of a referring 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;

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

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

Schedule 1 A mendments based on referrals of power

46 Water Amendment Bill 2008 No. , 2008

(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.

250D Avoiding direct inconsistency arising between the

Commonwealth wate r legislation and laws of referring

States

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 referring

State that is capable of concurrent operation with the

Commonwealth water legislation.

Note:

This kind of provision is dealt with by section 250B.

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 referring 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).

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 47

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 250B to the extent to which it can operate concurrently with

the Commonwealth provision.

(6) Subsections (4) and (5) do not apply in relation to the State

provision to the extent to which the regulations provide that those

subsections do not apply in relation to the State provision.

250E Regulations may modify operation of the Commonwealth

water legislation to deal with interaction between that

legislation and laws of referring States

(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 referring

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 referring State specified in the

regulations.

Schedule 1 A mendments based on referrals of power

48 Water Amendment Bill 2008 No. , 2008

(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

referring State; or

the requirement would otherwise give rise to an

inconsistency with a law of a referring 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 referring State;

(e) does not impose an obligation on a person to the extent to

which complying with that obligation would require the

person not to comply with an obligation imposed on the

person under a law of a referring 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 referring 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 referring State is

satisfied.

(3) In this section:

matter includes act, omission, body, person or thing.

7 Before Schedule 2

Insert:

Schedule 1 A mendments based on referrals of power

50 Water Amendment Bill 2008 No. , 2008

17.

Establishment of Basin Officials Committee

18.

Membership of the Committee

19.

Appointment of Chair of the Committee

20.

Appointment of Other Members of the Committee

21.

Acting Members of the Committee

22.

Period of Appointment

23.

Standing Obligation to Disclose Interests

24.

Obligation to Disclose Interests Before Considering a

Particular Matter

25.

Chief Executive and Authority Chair May Attend

Meetings

DIVISION 2 -- FUNCTIONS AND POWERS OF THE

COMMITTEE

26.

Functions and Powers of the Committee

DIVISION 3 -- DECISION MAKING BY THE COMMITTEE

27.

Proceedings of the Committee

28.

Resolutions Other than at Meetings

PART V - THE AUTHORITY

29.

Functions, Powers and Duties of the Authority

30.

Authoritys Functions in Relation to River Operations

31.

Objectives and outcomes for river operations

32.

Continuation of Resolutions, Practices and Procedures

Relating to River Operations

33.

Referrals and Determinations in Relation to River

Operations

34.

Annual Corporate Plan

35.

Amendment of Annual Corporate Plan

PART VI -- APPLICATION OF AGREEMENT TO QUEENSLAND

AND THE AUSTRALIAN CAPITAL TERRITORY

36.

Application of Agreement to Queensland and the

Australian Capital

37.

Provisions Not Applying to Queensland

38.

Provisions not applying to the Australian Capital Territory

39.

Powers of Ministerial Council and Committee to make

determinations

40.

Factors to be Considered by Ministerial Council or

Committee

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 51

41.

Application of Previous Ministerial Council Decisions to

Queensland

42.

Application of previous Ministerial Council decisions to

the Australian Capital Territory

PART VII - INVESTIGATION, MEASUREMENT AND

MONITORING

43.

Investigations and Studies

44.

Monitoring

45.

Measurements of Water Quantity and Quality

46.

Need for Approval in Certain Cases

47.

Power to Arrange Data in Lieu

48.

Water Quality Objectives

49.

Authority to be Informed of New Proposals

50.

Environmental Assessment

51.

Protection of Catchment of Hume Reservoir

PART VIII - CONSTRUCTION, OPERATION AND MAINTENANCE

OF WORKS

52.

Works and Measures Subject to the Agreement

53.

Asset Management Plan

54.

Control and Management of RMO assets

55.

Asset Agreement

56.

Authorisation of Further Works or Measures

57.

Ancillary, Preventative and Remedial Works

58.

Preparation and Submission of Designs etc of Works for

Authority Approval.

59.

Submission of Details of Measures for Authority Approval

60.

Authority Approval of Certain Tenders

61.

Directions for the Efficient Construction etc of Works

62.

States to Facilitate Construction and Operation Within

Their Territories

63.

Works for Benefit of State Contracting Governments

64.

Declaration that Works or Measures are Effective

65.

Maintenance of Works

66.

Procedures for Operation of Works

67.

Dredging and Snagging

68.

Operation of Works

69.

Performance of Joint Duties

70.

Ineffective Works

Schedule 1 A mendments based on referrals of power

52 Water Amendment Bill 2008 No. , 2008

PART IX - FINANCE

71.

Definitions

72.

Apportionment of Costs

73.

Annuity Contributions

74.

Annual and forward estimates

75.

Payments by Contracting Governments

76.

Authority to Account

77.

Application of Moneys by Authority

78.

Payments by Authority to Constructing Authorities

79.

Contracting Governments to Account

80.

Unexpended Balances

81.

List of Assets

82.

Disposal of Surplus Assets

83.

Revenue

84.

Compensation for Damage by Works

PART X - REPORTS

85.

Preparation of Reports

PART XI - PROCEEDINGS IN DEFAULT

86.

Failure to Perform Works or Contribute Cost

PART XII -- DISTRIBUTION OF WATERS

DIVISION 1 -- TIER 1 DISTRIBUTION OF WATERS

SUBDIVISION A -- APPLICATION OF DIVISION 1

87.

Application of Division 1

SUBDIVISION B - STATE ENTITLEMENTS TO WATER

88.

South Australias Monthly Entitlement

89.

Measurement of South Australias Entitlement

90.

Variation of South Australias Entitlements

91.

South Australias Storage Right

92.

Use of Lake Victoria

93.

Surplus Flow to South Australia

94.

Entitlements of New South Wales and Victoria

95.

New South Wales Entitlement to Water from Menindee

Lakes

96.

New South Wales and Victorias Supply to South

Australia

97.

Limitations on Use by New South Wales and Victoria

SUBDIVISION C - CONTROL BY AUTHORITY

98.

Authoritys Role in Operation of Storages

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 53

99.

Limitation on Menindee Lakes Operation

100. Procedures for Dartmouth Dam Operation

101. Water Estimated to be Under the Control of the Authority

102. Available Water

103. Minimum Reserve

104. Use of State Works to Convey Murray Water

SUBDIVISION D - WATER ACCOUNTING

105. General

106. Allocation of Water to New South Wales and Victoria

107. Allocation of Water in Menindee Lake Storage

108. Tributary Inflows

109. Use by New South Wales and Victoria of Allocated Water

110. Losses

111. New South Wales and Victorias Supply to South

Australia

112. Commencement of Continuous Accounting of Carryover

of Stored Water

113. Reallocation of Water Between New South Wales and

Victoria

114. Efficient Regulation of the River Murray

115. Accounting Procedures

116. Internal Spills

117. Accounting for Spill from Storages

118. Accounting for Releases from Dartmouth Reservoir

119. Accounting for Releases from Hume Reservoir

120. Accounting for Releases from Menindee Lakes Storage

121. Reallocation of Water in Menindee Lakes Storage

122. Accounting for Dilution Flows

SUBDIVISION E - PERIODS OF SPECIAL ACCOUNTING

123. Declaration of Periods of Special Accounting

124. Variation of Navigation Depths During Restrictions

125. Special Accounts to be Kept

126. Imbalance in Use

127. Limits on Imbalance in Use

128. Restrictions on South Australias Entitlement

129. Termination of Periods of Special Accounting

SUBDIVISION F -- ACCOUNTING FOR SOUTH

AUSTRALIAS STORAGE RIGHT

Schedule 1 A mendments based on referrals of power

54 Water Amendment Bill 2008 No. , 2008

130. Accounting for South Australias Storage Rights

DIVISION 2 -- TIER 2 DISTRIBUTION OF WATERS TO ENSURE

CRITICAL HUMAN WATER NEEDS

131. Application of Division 2

132. Distribution of Waters Subject to Schedule and

Determinations of Ministerial Council

DIVISION 3 -- TIER 3 DISTRIBUTION OF WATERS IN

EXTREME OR UNPRECEDENTED CIRCUMSTANCES

133. Application of Division 3

134. Distribution of Waters Subject to Schedule and

Determinations of Ministerial Council1

DIVISION 4 -- SCHEDULE FOR WATER SHARING

135. Schedule for Water Sharing

PART XIII - MENINDEE LAKES STORAGE

136. Maintenance of Menindee Lakes Storage

137. Full Supply Levels

138. Financial Contributions of Authority

PART XIV - EFFECT OF SNOWY SCHEME

139. Effect of Snowy Scheme

PART XV - MISCELLANEOUS

140. Resolution of Disputes

141. Resolution of operational management and delivery

inconsistencies

142. Proposals to Amend Agreement

143. Giving Information to the Authority

144. Authorities to Observe Agreement

PART XVI -- INDEMNITIES IN RESPECT OF COMMITTEE AND

AUTHORITY

145. Indemnity in Respect of Payments Made by

Commonwealth

146. Indemnity in Respect of Payments Relating to Former

Commissioners

147. Commonwealth to consult other Contracting Governments

148. Liability for Acts of Committee Members

PART XVII - TRANSITIONAL PROVISIONS AND REVIEW OF

SCHEDULES, RESOLUTIONS AND ACTIVITIES

149. Definitions

150. Transitional Provisions

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 55

151. Review of resolutions, directions, procedures and

measures and other activities

152. Review of Schedules

SCHEDULE A - WORKS

SCHEDULE B - BASIN SALINITY MANAGEMENT

PART I -- PRELIMINARY

Purpose

Definitions

Application to Queensland and Australian Capital

Territory

PART II -- ACCOUNTABILITY FOR SALINITY IMPACTS

Accountability for Salinity Impacts

Determining Baseline Conditions

Meeting End-of-Valley Targets

PART III -- SALINITY TARGETS

Basin Salinity Target

End-of-Valley Targets for the Australian Capital Territory

Reviewing and amending End-of-Valley Targets

PART IV -- JOINT WORKS AND MEASURES

10.

Joint program

11.

Attribution of salinity credits or salinity debits for Joint

works or measures

12.

Authorised Joint works and measures

13.

Participation by Queensland and Australian Capital

Territory

14.

Co-ordinating Joint Works and Measures

PART V -- THE REGISTERS

15.

Establishing the Registers

16.

Obligations of State Contracting Governments

17.

Operating Registers

18.

Determining whether a Proposal has a Significant Effect

19.

Assessing Salinity Impacts

20.

Estimating Salinity Credits and Salinity Debits

21.

Attributing Salinity Credits or Salinity Debits

22.

When Salinity Credits and Salinity Debits must be entered

on a Register

23.

Trading and Transfers between Registers

24.

Review and amendment of Register entries

Schedule 1 A mendments based on referrals of power

56 Water Amendment Bill 2008 No. , 2008

PART VI -- MONITORING

25.

Monitoring obligations

26.

End-of-Valley Targets

27.

Program to monitor Accountable Actions

28.

Monitoring Accountable Actions

PART VII -- REPORTING, AUDIT AND REVIEW

29.

State Contracting Governments

30.

Valley Reports

31.

Commonwealth

32.

Authority

33.

Rolling Five-Year Reviews

34.

Audit

35.

Review of Schedule

PART VIII -- MODELS

36.

Models to be developed by the Authority

37.

Models developed by State Contracting Governments

38.

Assessment and Approval of Certain Models

39.

Review of Models

PART IX -- PROTOCOLS

40.

Authoritys power to make protocols

41.

Examples of possible protocols

PART X -- DEFAULT

42.

Relationship with Part XI of the Agreement

43.

Default by a State Contracting Government

44.

Exception Reports

45.

Proposal for remedial action

46.

Action by a State Contracting Government

PART XI -- FINANCE

47.

State Actions

48.

Joint works or measures

PART XII -- TRANSITIONAL PROVISIONS

49.

Former salinity and drainage works

SCHEDULE B - APPENDIX 1 -- End of Valley Targets

SCHEDULE B - APPENDIX 2 -- Authorised Joint Works and Measures

SCHEDULE C - APPLICATION OF AGREEMENT TO

QUEENSLAND

SCHEDULE D - TRANSFERRING WATER ENTITLEMENTS AND

ALLOCATIONS

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 57

PART I - PRELIMINARY

Purposes

Application

Definitions and interpretation

PART II -- GENERAL PRINCIPLES

Power to alter entitlements and allocations to which

Schedule applies

Suspension of Schedule

Power to make protocols

PART III -- MATTERS RELATING TO ADMINISTRATION OF

THE AGREEMENT

Adjustment of delivery of State entitlements

Adjustment of cap on diversions

Adjustment of State financial contributions

10.

Accounting for salinity impacts

PART IV -- OPERATIONAL PRINCIPLES AND

ADMINISTRATION

11.

Delivery of water and valley accounts

12.

Conversion factors and exchange rates

13.

Restrictions on transfers

14.

Environmental and supply considerations

15.

Procedures and principles for transfers

16.

Transfer Register

17.

Monitoring and reporting

18.

Review of interstate transfers

19.

Dispute resolution

SCHEDULE D -- APPENDIX 1 -- Entitlements and Allocations

SCHEDULE D -- APPENDIX 2 -- Adjusting Delivery of State

Entitlements under Part XII of the Agreement

PART I -- RULES WHICH APPLY AT ALL TIMES

Interstate transfers of entitlements

Interstate transfers of allocations

PART II -- RULES WHICH ONLY APPLY IN PERIODS WHEN

THERE IS SPECIAL ACCOUNTING

Accounting under clause 125 of the Agreement

SCHEDULE D -- APPENDIX 3 -- Adjusting Cap on Diversions

Definitions

PART I -- ADJUSTING FOR TRANSFERRED ALLOCATIONS

Schedule 1 A mendments based on referrals of power

58 Water Amendment Bill 2008 No. , 2008

Adjusting cap for transferred allocations

PART II -- ADJUSTING FOR ENTITLEMENTS TRANSFERRED

BY TAGGED TRADE

Cap adjustment for tagged trade

PART III -- ADJUSTING FOR ENTITLEMENTS TRANSFERRED

BETWEEN 1 JULY 1994 AND THE EFFECTIVE DATE, USING

EXCHANGE RATES

Interim register

Adjusting annual diversion targets

PART IV -- ADJUSTING FOR ENTITLEMENTS TRANSFERRED

OR CONVERTED AFTER THE EFFECTIVE DATE, USING

EXCHANGE RATES

Object of Part

Operation of Part

Calculating increases in cap required

Adjusting annual diversion targets

SCHEDULE E -- CAP ON DIVERSIONS

Purposes

Definitions

River Valleys and Designated River Valleys

Diversion Formula Register

Long-term diversion cap for New South Wales

Long-term diversion cap for Victoria

Long-term diversion cap for South Australia

Long-term diversion cap for Queensland

Long-term diversion cap for the Australian Capital

Territory

10.

Power of Authority to alter long-term diversion caps

11.

Developing Analytical Models

12.

Calculation of annual diversion targets

13.

Monitoring and Reporting

14.

Appointment of Independent Audit Group

15.

Annual audit by the Independent Audit Group

16.

Power to require a special audit of a designated river

valley

17.

Special audit by Independent Audit Group

18.

Declaration that diversion cap has been exceeded

19.

Advice to Ministerial Council on remedial actions

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SCHEDULE E - APPENDIX 1 -- Designated River Valleys

New South Wales

Queensland

Victoria

South Australia

Australian Capital Territory

SCHEDULE E - APPENDIX 2 -- River Valleys

New South Wales

Queensland

Victoria

South Australia

Australian Capital Territory

SCHEDULE F -- EFFECT OF THE SNOWY SCHEME

PART I -- PRELIMINARY

Purpose

Definitions

PART II -- CALCULATING WATER VOLUMES

The Snowy Scheme And The River Murray

The Snowy Scheme And The Murrumbidgee River

Excess Snowy River Releases

Snowy River Release Shortfalls

Accounting For Water Releases

PART III -- WATER ACCOUNTING

Entitlements Of New South Wales And Victoria To Use

Water

Water Estimated To Be Under The Control Of The

Authority

10.

Allocation of Water to New South Wales and Victoria

11.

Tributary Inflows

12.

Use By New South Wales And Victoria Of Allocated

Water

13.

Required Annual Release Shortfalls

14.

Other Water Accounting Provisions

PART IV -- SNOWY-MURRAY DEVELOPMENT (RIVER

MURRAY) ENVIRONMENTAL ENTITLEMENTS

15.

Translation Factors

16.

Apportionment Of Environmental Entitlements

17.

Valley Accounts

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MURRAY-DARLING BASIN

AGREEMENT

THIS AGREEMENT IS ENTERED INTO ON 2008 BY:

THE COMMONWEALTH OF AUSTRALIA (the "Commonwealth"),

THE STATE OF NEW SOUTH WALES ("New South Wales"),

THE STATE OF VICTORIA ("Victoria"),

THE STATE OF QUEENSLAND ("Queensland"),

THE STATE OF SOUTH AUSTRALIA ("South Australia"), and

THE AUSTRALIAN CAPITAL TERRITORY ("Australian Capital

Territory").

THE PARTIES AGREE AS FOLLOWS:

PART I - INTERPRETATION

Purpose

The purpose of this Agreement is to promote and co-ordinate effective

planning and management for the equitable, efficient and sustainable use

of the water and other natural resources of the Murray-Darling Basin,

including by implementing arrangements agreed between the Contracting

Governments to give effect to the Basin Plan, the Water Act and State

water entitlements.

Definitions

In this Agreement save where inconsistent with the context:

"annual estimates" means estimates prepared under paragraph 74(1)(a).

"asset agreement" means the asset agreement, including any amendment

to it, made under clause 55.

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"asset management plan" means the asset management plan, including

any amendment to it, approved under clause 53.

"Authority" means the Murray-Darling Basin Authority established by

the Water Act.

"Authority Chair" has the meaning given by the Water Act.

"Basin Community Committee" has the meaning given by the Water

Act.

"Basin Plan" has the meaning given by the Water Act.

"Chief Executive" means the Chief Executive of the Authority.

"Commission" has the same meaning as "Murray-Darling Basin

Commission" under the Water Act.

"Committee" means the Basin Officials Committee established by

Part IV.

"Committee member" means a Committee member for a State or for the

Commonwealth, appointed in accordance with this Agreement.

"Constructing Authority" means:

(a)

the Contracting Government by which:

(i)

any works authorised by this Agreement or the former

Agreement have been, or are being, or are to be

constructed;

(ii) any measures authorised under this Agreement or the

former Agreement have been, or are being, or are to be

executed; or

(b) any public authority or any Minister constituted or appointed

for the purpose of constructing such works or executing such

measures.

"Contracting Government" means any of the Governments of the

Commonwealth, New South Wales, Victoria, South Australia,

Queensland and the Australian Capital Territory.

"conveyance water" has the meaning given by the Water Act.

"corporate plan" means a corporate plan approved under clause 34 and

includes any amendment to that plan approved under clause 35.

"critical human water needs" has the meaning given by the Water Act.

"diversions" includes abstractions, impoundings and appropriations of

water that reduce the flow of a river.

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"Doctors Point" means the location of the Doctors Point stream gauging

station.

"E.C." means a unit of electro-conductivity of water, measured in

micro-siemens per centimetre at 25 degrees Celsius.

"financial year" means the twelve months beginning on 1 July.

"former Agreement" has the same meaning as "former MDB

Agreement" in the Water Act.

"former Ministerial Council" means the Ministerial Council under the

former Agreement;

"Full Supply Level" means the full supply water level:

(a)

defined by reference to Australian Height Datum specified

by the design drawings for any structure subject to this

Agreement; or

(b) in the case of Menindee Lakes Storage, as defined under

clause 137.

"land" includes:

(a)

Crown lands;

(b) buildings; and

(c)

any interest, right or privilege in, over or affecting any land.

"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:

(a)

its original completion; or

(b) the completion of any improvement thereto or replacement

thereof,

but does not include -

(i)

the execution of any improvement to the design or

function of that work; or

(ii) the replacement of the whole of that work; or

(iii) work to remedy the extraordinary failure of part or all

of that work.

"major storages" means Lake Victoria, the Menindee Lakes Storage and

the storages formed by Dartmouth Dam and Hume Dam.

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"measures" includes strategies, plans and programs (including any

activities for the purpose of conserving or enhancing the environment)

but does not include any river operations.

"minimum operating level" means the water level in a storage, as

determined from time to time by the Ministerial Council, below which

water must not be released.

"Minister" means a Minister of a Contracting Government who has been

appointed to the Ministerial Council by that Contracting Government

under clause 8.

"Ministerial Council" means the Ministerial Council established by

Part III.

"Murray-Darling Basin" has the meaning given by the Water Act.

"Murray-Darling Basin Special Account" means the special account of

the Authority established under Part 9 Division 5 of the Water Act.

"natural flow" means the quantity of water that would have flowed in a

river past a particular point in a particular period but for the effect during

that period of diversions to or from, and impoundments on, the river

upstream of that point.

"officer" means a person who is a member of the staff of the Authority

within the meaning of the Water Act.

"period of special accounting" means a period of special accounting

declared under clause 123(1).

"prescribed rate" means either:

(a)

a rate of 2% per annum above the maximum overdraft rate

fixed by the Reserve Bank of Australia for amounts of

$100,000 or less which is applicable at the time a payment

becomes due, or, if no such rate is fixed;

(b) a rate of 4% per annum above the rate payable on

Commonwealth securities of the longest term offered for

public subscription in Australia for the Commonwealth cash

loan opened next before the time a payment becomes due.

"public authority" means a body, whether incorporated or not,

established for a public purpose by or under a law of the Commonwealth

or a State and includes any local government body.

"regulated flow" is the flow resulting from the release of stored water at

the direction of the Authority other than during, or in anticipation of,

floods.

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"reserve" means water available for release from major storages at the

direction of the Authority.

"river" and "tributary" respectively include any affluent, effluent creek,

anabranch or extension of, and any lake or lagoon connected with, the

river or tributary.

"river operations" means activities under this Agreement relating to:

(a)

the construction, operation, maintenance and renewal of

works on, adjacent to, or connected to the upper River

Murray or the River Murray in South Australia; and

(b) the execution of the provisions of this Agreement

concerning sharing water between State Contracting

Governments; and

(c)

the provision of other services relating to water, to State

Contracting Governments and other persons.

"RMO assets" means River Murray operations assets, being:

(a)

transitional RMO assets; and

(b) --

(i)

works constructed under clause 56 including works

constructed for the purposes of Schedule B; and

(ii) assets purchased with amounts paid to a Constructing

Authority by the Authority under clause 78,

that are, or relate to:

(iii) works on, adjacent to or connected to the upper River

Murray or the River Murray in South Australia; or

(iv) the execution of provisions of this Agreement

concerning sharing water between South Australia,

New South Wales and Victoria.

"State" means the State of New South Wales, the State of Victoria, the

State of South Australia, the State of Queensland or the Australian

Capital Territory.

"State Contracting Government" means any of the Governments of

New South Wales, Victoria, South Australia, Queensland or the

Australian Capital Territory.

"State MDB Act" means any of the following Acts: the Murray-Darling

Basin Act 1992 (New South Wales); the Murray-Darling Basin Act 1993

(Victoria); the Water (Commonwealth Powers) Act 2008 (Queensland);

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the Murray-Darling Basin Act 1993 (South Australia); and the

Murray-Darling Basin Agreement Act 2007 (Australian Capital

Territory).

"State water entitlement" means the entitlement of a State to water,

determined in accordance with Part XII of this Agreement.

"stored water" means water stored in or by:

(a)

any of the works described in Schedule A; and

(b) subject to sub-clause 95(1), the Menindee Lakes Storage;

and

(c)

any of the works for storing water authorised under

clause 56.

"transitional RMO assets" means transitional River Murray operations

assets, being:

(a)

the works set out in Schedule A to the former Agreement

(other than Weir No. 5 Redbank and Weir No. 7 Maude);

and

(b) any other works the construction of which was authorised

under sub-clause 50(1) of the former Agreement including

works authorised for the purposes of Schedule C of the

former Agreement; and

(c)

any other assets purchased with amounts paid by the

Commission under sub-clause 73(1) of the former

Agreement.

"upper River Murray" means the aggregate of:

(a)

the main course of the River Murray upstream of the eastern

boundary of the State of South Australia;

(b) all tributaries entering that part of the main course upstream

of Doctors Point;

(c)

all effluents and anabranches of that part of the main course,

other than those excepted by the Ministerial Council;

(d) the watercourses connecting Lake Victoria to that main

course;

(e)

the Darling River downstream of the Menindee Lakes

Storage; and

(f)

the upper River Murray storages.

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"upper River Murray storages" means Lake Victoria, the Menindee

Lakes Storage, the storages formed by Dartmouth Dam and Hume Dam

and by those weirs, and weirs and locks, described in Schedule A which

are upstream of the eastern boundary of South Australia.

"Water Act" means the Water Act 2007, amended by the Water

Amendment Act 2008 of the Commonwealth, and otherwise as amended

from time to time.

"water available for release at the direction of the Authority" means

water which can physically be released from a storage if the Authority so

directs, other than water which must not be released because of

sub-clause 99(1).

"water resource plan" has the meaning given by the Water Act.

"weir" includes:

(a)

a weir and lock; and

(b) a barrage in any of the channels at or near the mouth of the

River Murray.

Interpretation

(1)

In this Agreement, unless the contrary intention appears:

(a)

a reference to any Act includes any Act amending, or in

substitution for, that Act;

(b) a reference to this Agreement includes a reference to -

(i)

the Schedules to this Agreement, and

(ii) any amendment of or addition to this Agreement or

the Schedules hereto;

(c)

words importing the singular include the plural and vice

versa;

(d) words importing any gender include any other gender;

(e)

a reference to a Committee member for the Commonwealth

or a State includes a person who is acting as a Committee

member for the Commonwealth or that State pursuant to an

appointment under clause 21;

(f)

a reference to a power, function or duty of the Authority is a

reference to a power, function or duty of the Authority:

(i)

under this Agreement; or

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68 Water Amendment Bill 2008 No. , 2008

(ii) under the Water Act for the purposes of this

Agreement,

but does not include any other power, function or duty

conferred on it by the Water Act;

(g) a reference to a power, function or duty of the Ministerial

Council or the Committee is a reference to a power, function

or duty of that body:

(i)

under this Agreement; or

(ii) for the purposes of the Agreement because of the

operation of Part 10A of the Water Act,

but does not include any other power, function or duty

conferred on it by the Water Act.

(2)

No explanatory note or heading to a clause is part of this

Agreement.

(3)

In interpreting a provision of this Agreement, a construction that

would promote the purpose or object underlying the Agreement

(whether or not that purpose or object is expressly stated in the

Agreement) shall be preferred to a construction that would not

promote that purpose or object.

PART II -- APPROVAL, AMENDMENT AND ENFORCEMENT

Revocation of Former Agreement

The former Agreement is hereby revoked.

Commencement of Agreement and Amendments to Agreement

(1)

This Agreement comes into effect upon commencement of

Schedule 1 of the Water Amendment Act 2008 of the

Commonwealth, which amends the Water Act so as to set out the

text of the Agreement as a schedule to the Water Act.

(2)

An amendment to this Agreement will take effect upon the

registration of a legislative instrument, in accordance with the

Legislative Instruments Act 2003 (Commonwealth), that amends

the schedule referred to in sub-clause (1) by incorporating into the

Agreement amendments that have been agreed by the Ministerial

Council.

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(3)

For the purposes of sub-clause (2), the Commonwealth

Government:

(a)

may only register an instrument that incorporates into the

Agreement amendments that have been agreed by the

Ministerial Council; and

(b) will register an instrument that incorporates such

amendments as soon as practicable after they have been

agreed by the Ministerial Council.

(4)

A reference in sub-clause (2) to an amendment includes a reference

to the insertion, omission, repeal, substitution, addition or

relocation of words or matter.

Parties to Provide for Enforcement of Agreement

Each of the Contracting Governments so far as its jurisdiction extends

and so far as it may be necessary shall provide for or secure the execution

and enforcement of the provisions of this Agreement.

PART III - THE MINISTERIAL COUNCIL

Establishment of Ministerial Council

(1)

The Ministerial Council is established.

(2)

The Ministerial Council shall have such status and such powers

and duties and enjoy such privileges and immunities as may be

conferred upon it by this Agreement or the Water Act.

Membership of the Ministerial Council

(1)

The Council consists of a Minister of each of the Contracting

Governments who is appointed in writing by that Contracting

Government.

(2)

Whenever a member of the Ministerial Council representing a

Contracting Government is:

(a)

absent from Australia or from duty;

(b) unable for any reason to attend a meeting of the Ministerial

Council; or

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70 Water Amendment Bill 2008 No. , 2008

(c)

otherwise unable to perform the duties of a member of the

Ministerial Council,

that Contracting Government may appoint another Minister to act

in the place of that member, and while so acting that other Minister

shall have all the powers and perform all the duties of that member.

(3)

A member of the Ministerial Council ceases to be a member if:

(a)

the member ceases to be a Minister; or

(b) another Minister of the Contracting Government is

appointed in substitution for the member.

(4)

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

an appointment under this clause is not invalid merely because

there was a defect or irregularity in connection with the

appointment.

Functions of the Ministerial Council

The functions of the Ministerial Council are:

(a)

to consider and determine outcomes and objectives on major

policy issues of common interest to the Contracting

Governments in relation to the management of the water and

other natural resources of the Murray-Darling Basin,

including in relation to its role in the provision of critical

human water needs, but otherwise only in so far as those

issues are not provided for in the Basin Plan;

(b) to make determinations about the matters specified in this

Agreement;

(c)

to approve the annual corporate plan and budget, and asset

management plan, prepared by the Authority for the

purposes of this Agreement;

(d) to agree upon amendments to this Agreement including

amendments to, or removal or addition of, Schedules to this

Agreement as the Ministerial Council considers desirable

from time to time;

(e)

to exercise such other functions as may be conferred on the

Council by or under this Agreement or the Water Act.

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10. Ministerial Council May Direct Committee

The Ministerial Council may give directions to the Committee concerning

the performance of the Committees functions and powers and the

Committee shall comply with those directions.

11. Conferral of functions by Ministerial Council

(1)

The Ministerial Council may confer any of its functions and

powers on the Committee or the Authority.

(2)

The conferral of a function or power under this clause:

(a)

may be subject to such conditions or limitations as the

Ministerial Council may specify; and

(b) may be varied or revoked by the Ministerial Council

(whether or not constituted by the persons constituting the

Ministerial Council at the time when the power or function

was conferred); and

(c)

does not derogate from the ability of the Ministerial Council

to act in any matter.

12. Ministerial Council May Require Committee and Authority to

Report

The Ministerial Council may require a report from the Committee or the

Authority on any of the Committees or Authoritys functions.

13. Proceedings of the Ministerial Council

(1)

The Ministerial Council shall meet at least once in each year but

otherwise at such times as it sees fit and shall, subject to this

Agreement, determine its own procedure.

(2)

Subject to sub-clauses (3) and (4), the quorum for a meeting of the

Ministerial Council shall be a Minister for each Contracting

Government, appointed under clause 8.

(3)

The quorum of the Ministerial Council for debating any issue, or

considering or making any resolution on an issue related to any

provision of the Agreement, or to any policy, determination or

decision of the Ministerial Council, which does not apply, in whole

or in part, to either or both of Queensland and the Australian

Capital Territory by virtue of Part VI, does not include the Minister

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72 Water Amendment Bill 2008 No. , 2008

appointed by the Government of Queensland or the Minister

appointed by the Australian Capital Territory or both of those

Ministers (as the case requires).

(4)

The quorum of the Ministerial Council for debating any issue, or

considering or making any resolution on an issue in respect of its

functions under the Water Act:

(a)

includes the Minister appointed by the Government of

Queensland, unless the matter relates to Part 2A of the Water

Act, in which case the quorum includes that Minister only if

the issue relates to critical human water needs in a way that

affects Queensland, or affects the sharing of Basin water

resources between Queensland and New South Wales; and

(b) includes the Minister appointed by the Australian Capital

Territory, unless the matter relates to Part 2A of the Water

Act, in which case the quorum includes that Minister only if

the issue relates to critical human water needs in a way that

affects the Australian Capital Territory.

(5)

A person who is not included in a quorum may not vote on any

resolution referred to in sub-clause (3) or (4).

(6)

A resolution before the Ministerial Council will be carried only by

a unanimous vote of all Ministers present who constitute a quorum.

(7)

The Chair of the Ministerial Council shall be the Commonwealth

Minister appointed under clause 8.

14. Resolutions Other than at Meetings

(1)

A decision of the Ministerial Council may be made other than at a

meeting of the Ministerial Council if made in accordance with this

clause.

(2)

If:

(a)

the text of a proposed resolution is sent or given in writing

by facsimile or other transmission by an officer authorised

by the Authority to a Minister appointed under clause 8 or if

that Minister is unavailable a Minister for the same

Contracting Government authorised for the purpose by that

Government; and

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(b) such Minister approves the proposed resolution and notifies

that officer in writing sent or given by facsimile or other

transmission,

the proposed resolution is deemed to have been approved by the

Minister appointed under clause 8.

(3)

When a Minister from each Contracting Government has approved

a resolution in accordance with sub-clause (2) the resolution shall

be deemed to have become a decision of the Ministerial Council at

the date and time the last of those Ministers has approved the

resolution.

(4)

Any decision of the Ministerial Council made in accordance with

this clause, must be recorded by an officer authorised by the

Authority and a copy of the decision sent to each member of the

Ministerial Council within 21 days after the decision is made.

(5)

The record made pursuant to sub-clause (4) shall be confirmed at

the next meeting of the Ministerial Council.

(6)

The text of a resolution for which approval is sought under this

clause, relating to any provision of this Agreement, or to any issue

in respect of the Ministerial Councils functions under the Water

Act, which does not apply to either or both of Queensland and the

Australian Capital Territory by virtue of the provisions of Part VI

or sub-clause 13(4), need not be referred to or approved by any

Minister from the Government of Queensland or the Australian

Capital Territory or both (as the case requires).

15. Appointment of Committees

(1)

The Ministerial Council may from time to time appoint such

temporary or standing committees as it sees fit.

(2)

A committee shall have such members, terms of reference, powers

and functions as the Ministerial Council determines.

(3)

A member of a committee shall hold office on such terms as the

Ministerial Council may determine.

(4)

A member of a committee shall receive such allowances and

expenses as the Authority may from time to time determine.

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74 Water Amendment Bill 2008 No. , 2008

16. Basin Community Committee to Advise Ministerial Council

(1)

The Basin Community Committee is to provide advice to the

Ministerial Council on any matter relating to the Ministerial

Councils functions, at the request of the Ministerial Council.

(2)

The Ministerial Council may invite the Chair of the Basin

Community Committee to attend a meeting of the Ministerial

Council as an observer.

PART IV -- THE COMMITTEE

DIVISION 1 -- ESTABLISHMENT AND MEMBERSHIP OF THE

COMMITTEE

17. Establishment of Basin Officials Committee

(1)

The Basin Officials Committee (the Committee) is established.

(2)

The Committee shall have such status and such powers and duties

and enjoy such privileges and immunities as may be conferred

upon it by this Agreement or the Water Act.

18. Membership of the Committee

The Committee consists of:

(a)

a Chair; and

(b) five other members, each of whom represents a different

State Contracting Government.

19. Appointment of Chair of the Committee

(1)

The Chair of the Committee is to be appointed by the

Commonwealth Minister by written instrument.

(2)

The appointment of the Chair of the Committee is not invalidated

merely because of a defect or irregularity in connection with the

appointment.

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20. Appointment of Other Members of the Committee

(1)

Any other member of the Committee is to be appointed, by written

instrument, by the Minister for the State Contracting Government

that the member is to represent.

(2)

The members appointment is not invalidated merely because of a

defect or irregularity in connection with the appointment.

21. Acting Members of the Committee

(1)

The Commonwealth Minister may, by written instrument, appoint

an individual to act as the Chair of the Committee.

(2)

The Minister of a State Contracting Government may, by written

instrument, appoint an individual to act as the Committee member

for that Contracting Government.

(3)

An individuals appointment under sub-clause (1) or (2) to act as a

Committee member:

(a)

does not cease to have effect merely because the Committee

members appointment ceases to have effect; and

(b) if that Committee member is replaced by the appointment of

another Committee member--continues in effect in relation

to the new Committee member.

(4)

An individual appointed to act as a Committee member may act as,

and perform the functions and exercise the powers of, the

Committee member:

(a)

during a vacancy in the office of the Committee member,

whether or not an appointment has previously been made to

the office; or

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

Committee member:

(i)

is absent from duty or Australia; or

(ii) is, for any reason, unable to attend a meeting of the

Committee; or

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

office.

(5)

Anything done by or in relation to an individual purporting to act

under an appointment is not invalid merely because:

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76 Water Amendment Bill 2008 No. , 2008

(a)

the occasion for the appointment had not arisen; or

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

appointment; or

(c)

the appointment had ceased to have effect; or

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

22. Period of Appointment

A member of the Committee (including an acting member) holds office

for the period specified in his or her instrument of appointment, and is

eligible for re-appointment.

23. Standing Obligation to Disclose Interests

(1)

A member of the Committee (including an acting member) must

disclose any interest the member has if that interest could conflict

with the proper performance of the functions of the members

office.

Note:

The member must also disclose the interest under clause 24 if the interest is in a

matter being considered or about to be considered by the Committee.

(2)

Disclosure is required whether or not there is any particular matter

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

(3)

The disclosure must be by written notice given:

(a)

if the member is the Chair of the Committee--to the Chair

of the Ministerial Council; or

(b) if the member is not the Chair of the Committee--to the

Chair of the Committee.

The notice must be given as soon as practicable after the member

becomes aware of the potential for conflict of interest.

(4)

Sub-clause (1) applies to interests:

(a)

whether direct or indirect, and whether or not pecuniary; and

(b) whether acquired before or after the members appointment.

24. Obligation to Disclose Interests Before Considering a Particular

Matter

(1)

If:

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(a)

a member of the Committee (including an acting member)

has an interest in a matter being considered or about to be

considered by the Committee; and

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

performance of the functions of the members office, as

those functions give the member a role in deciding the

matter;

the member must disclose the nature of the interest to a meeting of

the Committee.

(2)

The disclosure must be made as soon as possible after the relevant

facts have come to the members knowledge.

(3)

The disclosure must be recorded in the minutes of the meeting of

the Committee.

(4)

Sub-clause (1) applies to interests:

(a)

whether direct or indirect, and whether or not pecuniary; and

(b) whether acquired before or after the members appointment.

25. Chief Executive and Authority Chair May Attend Meetings

(1)

The Chief Executive and Authority Chair:

(a)

may attend, and participate in, any meeting of the

Committee; and

(b) are entitled to access to any documents of the Committee

that are relevant to such a meeting.

(2)

However, the Chief Executive and the Authority Chair are not

entitled to vote on a matter to be decided in the meeting.

(3)

If:

(a)

the Chief Executive or Authority Chair has an interest in a

matter being considered or about to be considered by the

Committee; and

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

performance of the functions of his or her office, as those

functions relate to his or her attendance at, or participation

in, a meeting of the Committee,

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78 Water Amendment Bill 2008 No. , 2008

he or she must disclose the nature of the interest to the meeting of

the Committee.

(4)

The disclosure must be made as soon as possible after the relevant

facts have come to his or her knowledge.

(5)

The disclosure must be recorded in the minutes of the meeting of

the Committee.

(6)

Sub-clause (3) applies to interests:

(a)

whether direct or indirect, and whether or not pecuniary; and

(b) whether acquired before or after the appointment of the

Chief Executive or Authority Chair.

DIVISION 2 -- FUNCTIONS AND POWERS OF THE

COMMITTEE

26. Functions and Powers of the Committee

(1)

The functions of the Committee are:

(a)

to advise the Ministerial Council in relation to outcomes and

objectives on major policy issues of common interest to the

Contracting Governments in relation to the management of

the water and other natural resources of the Murray-Darling

Basin, including in relation to the Ministerial Councils role

in the provision of critical human water needs, but otherwise

only in so far as those issues are not provided for in the

Basin Plan;

(b) to give effect to any policy or decision of the Ministerial

Council, as required by the Ministerial Council;

(c)

to exercise responsibility for high level decision making in

relation to river operations, including by setting objectives

and outcomes to be achieved by the Authority in relation to

river operations;

(d) to exercise the powers and discharge the duties conferred on

it by or under this Agreement or the Water Act.

(2)

Paragraphs (1)(b) and (c) do not operate:

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(a)

to confer any powers on the Committee in addition to

powers conferred by other provisions of this Agreement or

the Water Act;

(b) to enable the Committee to --

(i)

do anything; or

(ii) require the Authority to do anything,

for which Part VII and subsequent Parts provide, otherwise

than as provided for by those Parts as amended from time to

time.

(3)

The advice referred to in paragraph (1)(a) shall be determined by

majority vote of the Committee members who constitute a quorum.

In the event of a unanimous decision not being reached, each

Committee member may tender separate advice to the Ministerial

Council.

DIVISION 3 -- DECISION MAKING BY THE COMMITTEE

27. Proceedings of the Committee

(1)

The Committee members may meet together for the transaction of

the Committees business and may adjourn any meeting.

(2)

Any Committee member may at any time call a meeting of the

Committee.

(3)

Each Committee member shall have one vote.

(4)

Subject to sub-clauses (5) and (6), one Committee member for

each Contracting Government shall constitute a quorum.

(5)

The quorum of the Committee for debating any issue, or

considering or making any resolution on an issue, related to any

provision of the Agreement, or to any policy, determination or

decision of the Ministerial Council or the Committee, which does

not apply, in whole or in part, to either or both of Queensland and

the Australian Capital Territory by virtue of Part VI, does not

include the Committee member for Queensland or the Committee

member for the Australian Capital Territory, or both (as the case

requires).

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(6)

The quorum of the Committee for debating any issue, or

considering or making any resolution on an issue in respect of its

functions under the Water Act:

(a)

includes the Committee member for Queensland unless the

matter relates to Part 2A of the Water Act, in which case the

quorum includes that member only if the issue relates to

critical human water needs in a way that affects Queensland,

or affects the sharing of Basin water resources between

Queensland and New South Wales;

(b) includes the Committee member for the Australian Capital

Territory unless the matter relates to Part 2A of the Water

Act, in which case the quorum includes that member only if

the issue relates to critical human water needs in a way that

affects the Australian Capital Territory.

(7)

A person who is not included in a quorum may not vote on any

resolution referred to in sub-clause (5) or (6).

(8)

Except as provided in sub-clauses 26(3) and 99(2) a resolution

before the Committee will be carried only:

(a)

by a unanimous vote of all Committee members present who

constitute a quorum; or

(b) by majority vote of the Committee members present who

constitute a quorum, if those members by a unanimous vote

agree that the resolution will be carried in that way.

(9)

The Committee must, subject to this Agreement, determine its own

procedure.

(10) The Committee must keep proper minutes of its proceedings.

28. Resolutions Other than at Meetings

(1)

The Committee may make a resolution other than at a duly

convened meeting.

(2)

Before a resolution is made pursuant to sub-clause (1):

(a)

subject to sub-clause (4), the text of the proposed resolution

must be referred to the Committee member appointed by

each Contracting Government; and

(b) that Committee member must approve the text of the

proposed resolution.

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(3)

Subject to sub-clause (4), a resolution under this clause shall be

made at the time when each Committee member referred to in

sub-clause (2) has signified approval of the resolution to an officer

authorised by the Authority.

(4)

The text of a resolution for which approval is sought under this

clause, relating to any provision of this Agreement, or to any issue

in respect of the Committees functions under the Water Act,

which does not apply to either or both of Queensland and the

Australian Capital Territory by virtue of the provisions of Part VI

or sub-clause 27(6), need not be referred to or approved by either

or both the Committee member for Queensland or the Committee

member for the Australian Capital Territory (as the case requires).

(5)

A Committee member may signify approval of a resolution by any

means, provided that:

(a)

approval by telephone must be signified in person by the

Committee member; and

(b) approval in writing must be by letter or facsimile

transmission which has been dated and signed by the

Committee member.

(6)

A resolution made under this clause must be duly recorded and a

copy sent to each Committee member within 21 days of the

resolution being made.

PART V - THE AUTHORITY

29. Functions, Powers and Duties of the Authority

(1)

The functions of the Authority are:

(a)

to give effect to any decision of the Ministerial Council,

including any decision made under sub-clause (3);

(b) to give effect to any high level decision of the Committee in

relation to river operations;

(c)

to provide advice to the Ministerial Council and the

Committee as required to fulfil their functions;

(d) to provide administrative support to the Ministerial Council

and the Committee; and

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82 Water Amendment Bill 2008 No. , 2008

(e)

to exercise the powers and discharge the duties conferred on

it by or under this Agreement.

(2)

Subject to a decision of the Ministerial Council made under

sub-clause (3), in carrying out its functions the Authority is to act

in accordance with:

(a)

the provisions of this Agreement;

(b) the corporate plan;

(c)

the asset management plan;

(d) the asset agreement; and

(e)

in relation to river operations, the requirements of clause 30.

(3)

The Ministerial Council may, if it agrees that an emergency exists,

decide that the Authority should carry out functions or exercise

powers for the purposes of this Agreement:

(a)

that are in addition to functions or powers conferred by the

other provisions of this Agreement; or

(b) otherwise than as required by sub-clause (2).

30. Authority's Functions in Relation to River Operations

(1)

The Authority must not exercise any of its functions in relation to

river operations in a manner that has the potential to have a

material effect on State water entitlements unless it does so in

accordance with a decision of the Committee made under this

Agreement, or a provision of the document approved under

clause 31.

(2)

Subject to sub-clause (3), the Authority must carry out its functions

in relation to river operations in accordance with objectives and

outcomes specified in the document approved under clause 31 or,

during the period before that document has been approved,

clause 32.

(3)

If clause 33 requires the Authority to refer to the Committee a

matter relating to the Authoritys functions in relation to river

operations, the Authority must act in accordance with a

determination made under that clause.

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31. Objectives and outcomes for river operations

(1)

The Committee must each year, unless the Committee determines

otherwise, approve, and may from time to time amend, a document

which specifies the objectives and outcomes to be achieved by the

Authority in carrying out the Authoritys functions in relation to

river operations.

(2)

A document (including an amended document) approved under this

clause remains in effect until the Committee resolves to approve a

new document.

(3)

A document approved under this clause may require the Authority

to refer to the Committee for the purposes of a determination under

clause 33 any specified matter relating to the carrying out of the

Authoritys functions in relation to river operations, including any

decision that the Authority proposes to make in relation to river

operations, that has the potential to have a material effect on State

water entitlements.

(4)

If a document approved under this clause includes a requirement to

refer, the document must specify the criteria to be applied to

determine whether a matter has the potential to have a material

effect on State water entitlements and thus needs to be referred.

32. Continuation of Resolutions, Practices and Procedures Relating to

River Operations

(1)

From the commencing day, and until the Committee approves a

document under clause 31 the Authority must, subject to a

determination under clause 33, carry out the Authoritys functions

in relation to river operations in accordance with such of the

resolutions, practices and procedures in relation to the

Commissions water business as are in effect immediately before

the commencing day.

(2)

In this clause "Commissions water business" has the same

meaning as under the former Agreement.

33. Referrals and Determinations in Relation to River Operations

(1)

The Authority must refer to the Committee any matter relating to

carrying out river operations:

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84 Water Amendment Bill 2008 No. , 2008

(a)

that the document approved under clause 31 requires the

Authority to refer; or

(b) that two or more members of the Committee have notified

the Authority and the Committee in writing is a matter that

should be referred to the Committee because the document

approved under clause 31 has not made relevant

specifications about the matter, and the matter has the

potential to have a material effect on State water

entitlements.

(2)

A notification made under paragraph (1)(b) may be withdrawn at

any time before a determination is made under this clause, by

notice in writing given to the Authority and the Committee by the

members of the Committee who made the notification.

(3)

The Authority must refer to the Committee any decision that the

Authority proposes to make in relation to river operations that has

the potential to have a material effect on State water entitlements,

unless the decision is authorised by the document approved under

clause 31 or a previous determination made under this clause.

(4)

The Authority may, before the Committee has approved a

document under clause 31, refer to the Committee a proposal by

the Authority to carry out its functions in relation to river

operations in a manner other than in accordance with the

resolutions, practices and procedures referred to in clause 32.

(5)

If the Authority refers a matter to the Committee under this clause,

the Committee must consider the matter and may make a

determination in relation to it.

(6)

A determination under sub-clause (5) will be made:

(a)

by a unanimous vote of all Committee members present who

constitute a quorum; or

(b) by majority vote of the Committee members present who

constitute a quorum, if those members by a unanimous vote

agree that the resolution will be carried in that way.

(7)

If the Committee cannot make a determination in relation to a

referred matter, the matter must be referred to the Ministerial

Council as if it were a motion submitted by a Committee member

for the purposes of clause 140.

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(8)

After a matter has been referred to the Committee under this

clause, the Authority must:

(a)

continue to carry out its functions in relation to river

operations in accordance with resolutions, practices and

procedures that were in effect before the matter was referred;

and

(b) in the case of a proposed decision, must not make the

decision, until such time as the Committee makes a

determination under this clause.

34. Annual Corporate Plan

(1)

The Authority must, each year and by the date determined by the

Ministerial Council, prepare a draft corporate plan.

(2)

The draft corporate plan must:

(a)

set out the activities of the Authority for the next ensuing

four years, including the activities through which the

Authority intends to achieve the outcomes and objectives --

(i)

set by the Ministerial Council; and

(ii) in respect of river operations, set by the Committee;

(b) set out new capital works and operational and maintenance

programs to be undertaken or required under Part VIII of

this Agreement, including as may be required to implement

the asset management plan; and

(c)

include the budget for the activities, works and programs,

which must be developed in accordance with clause 74.

(3)

The draft corporate plan may include any other matters relevant to

the Authoritys functions as the Authority sees fit.

(4)

The Authority must provide the draft corporate plan to the

Committee.

(5)

After considering the draft corporate plan, the Committee must

submit the draft plan and the Committees advice in relation to it,

to the Ministerial Council.

(6)

After receiving the plan and the advice of the Committee, the

Ministerial Council may:

(a)

approve the plan with or without amendment; or

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86 Water Amendment Bill 2008 No. , 2008

(b) refer the plan back to the Authority for further consideration.

35. Amendment of Annual Corporate Plan

(1)

If the Authority considers that it is necessary or desirable for there

to be a significant variation to the corporate plan, the Authority

must prepare a draft amendment to the corporate plan and provide

it to the Committee.

(2)

After considering the draft amendment, the Committee must

submit the draft amendment and the Committees advice in relation

to it, to the Ministerial Council.

(3)

After receiving the draft amendment and the advice of the

Committee, the Ministerial Council may:

(a)

approve the amendment of the corporate plan with or

without further amendment; or

(b) refer the draft amendment back to the Authority for further

consideration.

PART VI -- APPLICATION OF AGREEMENT TO QUEENSLAND

AND THE AUSTRALIAN CAPITAL TERRITORY

36. Application of Agreement to Queensland and the Australian Capital

The provisions of the Agreement apply to the State of Queensland and

the Australian Capital Territory except:

(a)

for those provisions declared not to apply by this Part; and

(b) to the extent that provisions are modified by this Part; and

(c)

where the Ministerial Council or the Committee determines

that a provision does not apply pursuant to clause 39.

37. Provisions Not Applying to Queensland

(1)

Parts XII, XIII and XIV of the Agreement do not apply to the State

of Queensland.

(2)

Clause 145 of the Agreement only applies to the State of

Queensland in respect of an act, omission or loss incurred, in

relation to the bona fide execution of powers:

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(a)

in or related to the State of Queensland; or

(b) under a provision of the Agreement as it applies to the State

of Queensland.

(3)

Insofar as any provision of the Agreement bears on a matter set out

in sub-clause (4), that provision does not apply to the State of

Queensland.

(4)

Sub-clause (3) applies to:

(a)

any issue concerning the design, execution, construction,

funding, operation, maintenance, alteration or replacement

of any works, measures, policies or strategies solely

associated with the management of the upper River Murray

and the River Murray in South Australia;

(b) any liability of the Committee or Authority, any Contracting

Government or any Constructing Authority in respect of -

(i)

any matter referred to in paragraph (4)(a); or

(ii) any matter arising under a provision of the Agreement

which the Ministerial Council or Committee has

determined does not apply to the State of Queensland

under clause 39.

(5)

Nothing in the Agreement requires the State of Queensland:

(a)

to contribute to the costs of, or associated with, remedying

any actual or anticipated damage referred to in paragraph

57(c) of the Agreement; or

(b) to meet any compensation for damage paid under clause 84

of the Agreement,

except where the State of Queensland has contributed to the

construction, maintenance or operation expenses of the works to

which the costs or compensation relate.

38. Provisions not applying to the Australian Capital Territory

(1)

Parts XII, XIII and XIV of the Agreement do not apply to the

Australian Capital Territory.

(2)

Clause 145 of the Agreement only applies to the Australian Capital

Territory in respect of an act, omission or loss incurred in relation

to the bona fide execution of powers:

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88 Water Amendment Bill 2008 No. , 2008

(a)

in or related to the Australian Capital Territory; or

(b) under a provision of the Agreement as it applies to the

Australian Capital Territory.

(3)

Insofar as any provision of the Agreement bears on any of the

following matters, it does not apply to the Australian Capital

Territory:

(a)

any matter concerning the design, execution, construction,

funding, operation, maintenance, alteration or replacement

of any works, measures, policies or strategies solely

associated with the management of the upper River Murray

and River Murray in South Australia;

(b) any liability of the Committee or Authority, any Contracting

Government or any Constructing Authority in respect of:

(i)

any matter referred to in paragraph (3)(a); or

(ii) any matter arising under a provision of the Agreement

which the Ministerial Council or Committee has

determined does not apply to the Australian Capital

Territory under clause 39.

(4)

Nothing in the Agreement requires the Australian Capital

Territory:

(a)

to contribute to the costs of or associated with remedying,

any actual or anticipated damage referred to in paragraph

57(c) of the Agreement; or

(b) to meet any compensation for damage paid under clause 84

of the Agreement,

except where the Australian Capital Territory has contributed to the

construction, maintenance or operation expenses of the works to

which the costs or compensation relate.

39. Powers of Ministerial Council and Committee to make

determinations

(1)

The Ministerial Council or the Committee, as the case may be,

may:

(a)

determine that a provision of the Agreement does not apply

to the State of Queensland or the Australian Capital

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Territory, or both, either generally or in relation to a

particular matter or class of matters; and

(b) revoke any such determination made by it, or any similar

such determination made by the former Ministerial Council

under the former Agreement.

(2)

The Ministerial Council may, at any time, direct that any

determination made:

(a)

by the Committee under sub-clause (1); or

(b) by the Commission or the former Ministerial Council under

clause 4 of Schedule D or clause 6 of Schedule H of the

former Agreement,

is to be deemed to have been either revoked, or altered in any way

directed by the Ministerial Council.

(3)

The Committee and, if the case requires, the Authority, must give

effect to any determination made by the Ministerial Council under

sub-clause (1).

40. Factors to be Considered by Ministerial Council or Committee

(1)

In making a determination under clause 39, the Ministerial Council

or the Committee must apply the guidelines set out in this clause,

unless the Ministerial Council or the Committee, as the case may

be, determines otherwise.

(2)

A provision should apply to the State of Queensland if:

(a)

issues arising under that provision are likely to cause a

significant benefit or a significant detriment to Queensland;

(b) any decisions or actions taken within Queensland without

reference to that provision might cause significant benefit or

significant detriment to any part of the Murray-Darling

Basin within Queensland;

(c)

the Government of Queensland has incurred or may incur

any financial obligation as a result of that provision.

(3)

A provision should not apply to the State of Queensland if issues

arising under that provision are only likely to concern that portion

of the Murray-Darling Basin delineated in the plan comprising

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90 Water Amendment Bill 2008 No. , 2008

(4)

A provision should not apply to the Australian Capital Territory

unless:

(a)

issues arising under that provision are likely to cause a

significant benefit or a significant detriment to the

Australian Capital Territory; or

(b) any decisions or actions taken within the Australian Capital

Territory without reference to that provision might cause

significant benefit or significant detriment to any part of the

Murray-Darling Basin within the Australian Capital

Territory; or

(c)

the Government of the Australian Capital Territory has

incurred or may incur any financial obligation as a result of

that provision.

41. Application of Previous Ministerial Council Decisions to Queensland

(1)

The Ministerial Council may affirm that a policy, determination or

decision of the former Ministerial Council applies to the State of

Queensland.

(2)

Any such policy, determination or decision shall apply to the State

of Queensland in whole or in part, or with such modification, as the

Ministerial Council decides.

(3)

This clause applies only to policies, determinations or decisions

made by the former Ministerial Council between 27 August 1986

and the first meeting of the former Ministerial Council after

Schedule D of the former Agreement came into force.

(4)

Any policy, determination or decision referred to in sub-clause (3)

which is not affirmed by the Ministerial Council under sub-clause

(1) does not apply to Queensland.

42. Application of previous Ministerial Council decisions to the

Australian Capital Territory

(1)

Except as provided in this clause, every policy, determination or

decision made by the former Ministerial Council before it

approved Schedule H of the former Agreement, in relation to any

provision or matter which, by virtue of this Part, applies in whole

or in part to the Australian Capital Territory, applies to the

Australian Capital Territory.

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(2)

If the Ministerial Council allows, the Australian Capital Territory

may propose to the Committee that a policy, determination or

decision of the former Ministerial Council referred to in sub-clause

(1):

(a)

should apply to the Australian Capital Territory; or

(b) should only apply to the Australian Capital Territory with

modifications; or

(c)

should not apply to the Australian Capital Territory.

(3)

The Committee shall consider any proposal made under sub-clause

(2) and may make such recommendations to the Ministerial

Council about the proposal, as it thinks fit.

(4)

The Ministerial Council, after considering any recommendations

made by the Committee, may either:

(a)

adopt the proposal, with or without amendments; or

(b) reject the proposal.

(5)

Any policy, determination or decision referred to in sub-clause (1),

which is not mentioned in a proposal as adopted by the Ministerial

Council under sub-clause (4), ceases to apply to the Australian

Capital Territory on the day on which that proposal is adopted by

the Ministerial Council.

PART VII - INVESTIGATION, MEASUREMENT AND MONITORING

43. Investigations and Studies

(1)

The Authority may co-ordinate, carry out or cause to be carried out

surveys, investigations and studies regarding the desirability and

practicability of works or measures for the equitable, efficient and

sustainable use of water and other natural resources of the

Murray-Darling Basin, including but not limited to works or

measures for:

(a)

the conservation and regulation of river water;

(b) the protection and improvement of the quality of river water;

(c)

the conservation, protection and management of aquatic and

riverine environments; and

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92 Water Amendment Bill 2008 No. , 2008

(d) the control and management of groundwater which may

affect the quality or quantity of river water.

(2)

The Authority may, without further approval of any Contracting

Government, carry out, or cause to be carried out surveys,

investigations or studies pursuant to sub-clause (1) on or adjacent

to:

(a)

the upper River Murray; and

(b) the River Murray in South Australia.

(3)

Except as provided in sub-clause (2) or as authorised under the

Water Act, the Authority must not carry out or cause to be carried

out surveys, investigations or studies within the territory of any

State without obtaining the consent of that State Contracting

Government.

44. Monitoring

The Authority, subject to clause 46, may establish, maintain and operate

effective means for monitoring the quality, extent, diversity and

representativeness of water and other natural resources of the

Murray-Darling Basin, including but not limited to:

(a)

aquatic and riverine environments; and

(b) the effect of groundwater on water and other natural

resources.

45. Measurements of Water Quantity and Quality

The Authority must establish, maintain and operate an effective and

uniform system:

(a)

for making and recording continuous measurements of -

(i)

the flow of the River Murray, and tributaries of the

River Murray within the boundaries of each State; and

(ii) the volume of stored water,

at such locations as the Authority deems necessary to

determine the volume of the intake from the several portions

of the drainage area of the River Murray, the flow at selected

locations along the River Murray and the losses from

selected reaches of the River Murray, with their positions

and modes of occurrence;

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(b) for making and recording continuous measurements of all

diversions, whether natural or artificial, or partly natural and

partly artificial, from the River Murray and its tributaries;

and

(c)

for measuring and monitoring the quality of -

(i)

River Murray water;

(ii) water in tributaries of the River Murray at such

locations at or near the confluence of each of those

tributaries with the River Murray as the Authority,

after consultation with the appropriate authorities of

each of the Contracting Governments, deems

necessary; and

(iii) stored water.

46. Need for Approval in Certain Cases

(1)

The Authority may, without further approval of any Contracting

Government, establish, maintain and operate any system or means

referred to in clauses 44 and 45 on or adjacent to:

(a)

the upper River Murray; and

(b) the River Murray in South Australia.

(2)

Except as provided in sub-clause (1) or as authorised under the

Water Act, the Authority must not establish, maintain or operate

any system or means referred to in clauses 44 and 45 within the

territory of any State without:

(a)

informing the Committee of the proposed system or means;

and

(b) obtaining the consent of that State Contracting Government.

47. Power to Arrange Data in Lieu

Instead of establishing, maintaining or operating systems and means

referred to in clauses 44 and 45, the Authority may:

(a)

adopt the results of any measurements or monitoring made

by any Contracting Government; or

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94 Water Amendment Bill 2008 No. , 2008

(b) request a State Contracting Government to carry out any

monitoring or measurement within its territory in such

manner as the Authority considers necessary.

48. Water Quality Objectives

(1)

The Authority must formulate water quality objectives for the

River Murray and make recommendations with respect thereto to

the Ministerial Council.

(2)

This clause ceases to have effect after the Basin Plan first takes

effect.

49. Authority to be Informed of New Proposals

(1)

Whenever a Contracting Government or a public authority is

considering any proposal which may significantly affect the flow,

use, control or quality of any water in the upper River Murray and

in the River Murray in South Australia, that Contracting

Government must, or must ensure that the public authority shall:

(a)

inform the Authority of the proposal; and

(b) provide the Authority with all necessary information and

data to permit it to assess the anticipated effect of the

proposal on the flow, use, control or quality of the water.

(2)

The necessary information and data must be provided in sufficient

time to allow the Authority:

(a)

to assess the possible effect of the proposal on the flow, use,

control or quality of that water; and

(b) to make representations thereon to that Contracting

Government or public authority,

before the Contracting Government or public authority decides if

the proposal will proceed.

(3)

The Authority shall consult with each Contracting Government,

and with any public authority responsible to a Contracting

Government which that Contracting Government or the Authority

considers is likely to consider a proposal of the type referred to in

sub-clause (1), with a view to reaching agreement with that

Contracting Government, or that public authority, as to:

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(a)

the types of proposals to which sub-clause (1) shall apply;

and

(b) the criteria to be used in assessing those proposals to which

sub-clause (1) applies.

(4)

Despite sub-clause (3), sub-clauses (1) and (2) apply to any

proposal referred to in clause 23 of Schedule F.

50. Environmental Assessment

The Authority must, in exercising its powers or functions, or in

implementing works or measures under this Agreement, examine and

take into account any possible effects which the exercise of those powers

or functions or those works or measures may have on water and other

natural resources within the Murray-Darling Basin.

51. Protection of Catchment of Hume Reservoir

(1)

The State Contracting Governments of New South Wales and

Victoria must take effective measures to protect the portions of the

catchment of the Hume Reservoir within their respective States

from erosion.

(2)

Each of those Contracting Governments must, before the end of

June in each year, forward a report to the Authority on:

(a)

the condition of the portion of the catchment of the Hume

Reservoir within its territory;

(b) the measures taken and work carried out during the twelve

months to the end of March immediately preceding; and

(c)

particulars of the measures and works proposed for the next

twelve months.

(3)

The Authority must, from time to time, inspect or cause to be

inspected such portions of the catchment of the Hume Reservoir as

it thinks fit and may indicate at any time whether in its opinion the

measures taken and works carried out are effective. If, on any

inspection, the Authority considers that any of those measures or

works are ineffective, it must notify the Contracting Government

concerned which must, to the extent that it may be practicable, take

action to make those measures and works effective.

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(4)

Measures, works and action taken or carried out by a Contracting

Government pursuant to sub-clause (1) or (3) shall be paid for by

that Contracting Government.

(5)

If at any time the Authority considers that there is need for special

action to protect the catchment of the Hume Reservoir from

erosion, other than, or in addition to, the measures, works and

action taken or carried out under sub-clauses (1) and (3), the

Authority may, in consultation with the Committee, require the

Contracting Government, in whose territory the special action is to

be carried out, to investigate the position and to take such special

action as may be required by the Authority.

PART VIII - CONSTRUCTION, OPERATION AND MAINTENANCE

OF WORKS

52. Works and Measures Subject to the Agreement

(1)

Works or measures from time to time included in a Schedule to this

Agreement or authorised pursuant to clause 56 must be

constructed, operated, maintained or implemented (as the case may

require):

(a)

in accordance with -

(i)

the provisions of this Agreement and any State MDB

Act;

(ii) the corporate plan; and

(iii) in respect of works --

(A) the asset management plan; and

(B) the asset agreement that relates to those works,

unless determined otherwise by the Ministerial

Council;

(b) by the Contracting Government from time to time nominated

under sub-clause 56(5) for the purpose.

(2)

A Contracting Government:

(a)

described as a ,,Nominated Government in Schedule A with

respect to a work; or

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(b) nominated under the former Agreement with respect to a

work,

is deemed to have been nominated under paragraph (1)(b) to

construct, operate, maintain and renew that work, until the

corporate plan nominates another Contracting Government for one

or more of those purposes, with respect to that work.

53. Asset Management Plan

(1)

The Authority must, as soon as practicable after this Agreement

comes into effect, prepare a draft asset management plan.

(2)

The draft asset management plan must set out, for each work

referred to in sub-clause 52(1), the way in which the work will be

managed, maintained, repaired, renewed or replaced.

(3)

The Authority must provide the draft asset management plan to the

Committee.

(4)

After considering the draft asset management plan, the Committee

must submit the draft plan and the Committees advice in relation

to it, to the Ministerial Council.

(5)

After receiving the draft plan and the advice of the Committee, the

Ministerial Council may:

(a)

approve the plan with or without amendment; or

(b) refer the plan back to the Authority for further consideration.

(6)

The Committee must monitor the implementation of the asset

management plan and may advise the Ministerial Council or the

Authority in respect of that plan as the Committee thinks fit.

(7)

The Authority must review the asset management plan annually.

(8)

The Authority:

(a)

may prepare a draft amendment to the asset management

plan as a consequence of the annual review or at any other

time; and

(b) must prepare a draft amendment to the asset management

plan --

(i)

in respect of each new work authorised under

clause 56; and

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98 Water Amendment Bill 2008 No. , 2008

(ii) if the Committee recommends an amendment to the

plan.

(9)

Sub-clauses (3), (4) and (5) apply to a draft amendment as if it

were a draft asset management plan.

54. Control and Management of RMO assets

(1)

RMO assets are not under the ownership or control of the

Authority; however, the Authority manages the assets in

accordance with sub-clause (3).

(2)

RMO assets are controlled jointly by the Commonwealth

Government and the Governments of South Australia, New South

Wales and Victoria ("the asset controlling governments") for the

purposes of this Agreement, in the manner described in the asset

agreement.

(3)

The asset controlling governments agree that the Authority is to

manage the RMO assets on behalf of the asset controlling

governments for the purposes of this Agreement, as required by

clause 29 of this Agreement.

(4)

For the purposes of this clause, the Authority must maintain books

of account and records in relation to the RMO assets that comply

with applicable statutory requirements and are consistent with

standard accounting and auditing requirements.

(5)

Without limiting sub-clause (4), books of account maintained by

the Authority for the purposes of this clause must:

(a)

be maintained separately from the accounts required to be

kept by the Authority for the purposes of the Murray-Darling

Basin Special Account;

(b) include an asset register and asset revaluations;

(c)

be made available to an asset controlling government upon

request.

(6)

The Authority must report on the books of account in the manner

and at the times specified in the asset agreement.

(7)

The books of account maintained by the Authority for purposes of

sub-clause (4) will be audited by the Australian National Audit

Office or other such body as agreed from time to time by the

Ministerial Council.

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55. Asset Agreement

(1)

The Authority must as soon as practicable after this Agreement

comes into effect make an asset agreement with the asset

controlling governments referred to in clause 54 regarding the

management by the Authority of the RMO assets, which is to

reflect asset controlling governments requirements for accounting

for the assets, recording, reporting and audit as well as specific

high level requirements in relation to construction, maintenance

and operation of assets.

(2)

The asset agreement must include provisions about accounting for,

reporting on and managing the RMO assets.

(3)

The asset agreement must not be inconsistent with any provision of

this Agreement.

(4)

The asset agreement may be reviewed and amended by agreement

between the parties.

Note -- The Authority may also enter an agreement or an understanding with a Contracting

Government or Constructing Authority in relation to operating, maintaining and

ensuring the required performance of an asset.

56. Authorisation of Further Works or Measures

(1)

The Ministerial Council and, subject to sub-clause (3), the

Authority, may, to promote the equitable, efficient and sustainable

use of the water and other natural resources of the Murray-Darling

Basin, authorise:

(a)

the construction of any works in addition to works set out in

Schedule A;

(b) the improvement of any works constructed under this

Agreement;

(c)

the replacement of any works constructed under this

Agreement;

(d) work to remedy the extraordinary failure of part or all of any

work constructed under this Agreement; and

(e)

the implementation of any measures.

(2)

Unless the Ministerial Council decides that a work or measure is

required to address an emergency, a work or measure authorised by

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100 Water Amendment Bill 2008 No. , 2008

the Ministerial Council is authorised by a corporate plan that

includes such a work or measure.

(3)

The Authority may authorise the execution of any work or the

implementation of any measure pursuant to this clause which is

estimated to cost not more than $2,000,000 or such other amount

determined by the Ministerial Council from time to time.

(4)

All provisions of this Agreement apply mutatis mutandis to any

work or measure approved under this clause.

(5)

When any work or measure is authorised pursuant to this clause the

Ministerial Council, the Authority or the corporate plan, as the case

may be, must nominate which of the Contracting Governments

shall be responsible for:

(a)

the construction, operation and maintenance of such work;

(b) the implementation of such measure,

in whole or in part.

(6)

The Ministerial Council may:

(a)

resolve to include any works or measures authorised

pursuant to sub-clause (1) in a Schedule to the Agreement;

and

(b) approve any Schedule prepared or amended pursuant to

paragraph (a).

(7)

When a Schedule is approved by the Ministerial Council under

paragraph (6)(b) it:

(a)

becomes part of the Agreement; and

(b) takes effect as provided for in sub-clause 5(2).

57. Ancillary, Preventative and Remedial Works

On the application of a Committee member and subject to the corporate

plan, the Authority may meet, or contribute to the costs of, or associated

with:

(a)

the construction, operation or maintenance of-

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(i)

any works of a Contracting Government ancillary to

the works constructed pursuant to this Agreement or

the former Agreement; and

(ii) any preventative or remedial works of a Contracting

Government necessitated by, or arising from, the

construction or operation of works constructed

pursuant to this Agreement or the former Agreement;

(b) the acquisition by a Contracting Government of any interest

in land necessary for the construction, operation or

maintenance of those ancillary, preventative or remedial

works, or for the provision of flood easements; and

(c)

remedying any actual or anticipated damage or injury

occasioned by the construction, operation or maintenance of

any works provided for in this Agreement or the former

Agreement.

58. Preparation and Submission of Designs etc of Works for Authority

Approval.

(1)

A Contracting Government nominated to construct a work pursuant

to this Agreement must submit a general scheme of the work to the

Authority for its approval.

(2)

Before beginning to construct that work, the Contracting

Government must submit designs, specifications and estimates of

the work to the Authority for its approval.

(3)

The Authority may approve the general scheme, designs,

specifications or estimates with or without alterations or additions,

or may, from time to time, refer any of them for amendment to the

Contracting Government submitting them.

(4)

The Contracting Government must carry out an authorised work in

accordance with:

(a)

the designs and specifications approved by the Authority;

and

(b) any directions given by the Authority pursuant to clause 61.

59. Submission of Details of Measures for Authority Approval

(1)

A Contracting Government nominated to implement any measure

pursuant to this Agreement:

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102 Water Amendment Bill 2008 No. , 2008

(a)

must submit -

(i)

a general description of the measure and of the

method of implementing it; and

(ii) the estimated cost of implementing the measure,

to the Authority for its approval; and

(b) must submit proposed arrangements for sharing the costs of

implementing the measure among the Contracting

Governments to the Authority for the Authority to consider

in the preparation of a recommendation to the Ministerial

Council for the purposes of clause 72.

(2)

The Contracting Government must implement an authorised

measure in accordance with:

(a)

those matters approved by the Authority under sub-clause

(1);

(b) any directions given by the Authority pursuant to clause 61.

60. Authority Approval of Certain Tenders

(1)

All works constructed under this Agreement for an amount

exceeding $2,000,000 or such other higher amount determined by

the Authority from time to time, must be let by tender.

(2)

A Constructing Authority must obtain the approval of the

Authority before accepting any tender relating to this Agreement

for any amount exceeding $2,000,000 or such other amount

determined by the Authority from time to time.

(3)

If the concept or design of any work or measure or any changes

thereto cause the total estimated cost of the work or measure to rise

by more than 10% of the amount of the accepted tender, the

Authority must:

(a)

immediately notify the Ministerial Council; and

(b) if the Ministerial Council does not agree that the work or

measure should proceed within one month of being notified

of the increased estimated cost, direct the Constructing

Authority to suspend further action on that work or measure.

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61. Directions for the Efficient Construction etc of Works

(1)

The Authority may give directions, as required to give effect to the

corporate plan and asset management plan, or to give effect to a

decision of the Ministerial Council under sub-clause 29(3), to

ensure:

(a)

the efficient construction, operation, maintenance and

required performance of any work; and

(b) the efficient implementation of any measures,

authorised pursuant to this or the former Agreement.

(2)

A Constructing Authority must give effect to any directions given

to it by the Authority under sub-clause (1).

(3)

The Authority may direct:

(a)

if necessary, what shall be regarded as:

(i)

investigations, construction and administration; or

(ii) major or cyclic maintenance; or

(iii) operation and maintenance,

for the purpose of clause 71; and

(b) the doing of such acts or things as it considers necessary to

ensure that the provisions of this Part are observed.

(4)

In exercising its power under paragraph (3)(a), the Authority must

not direct that any of the following description of work shall be

regarded as operation and maintenance:

(a)

the execution of any improvement to the design or function

of any existing work;

(b) the replacement of the whole of any existing work;

(c)

work to remedy the extraordinary failure of part or all of any

existing work.

62. States to Facilitate Construction and Operation Within Their

Territories

A State Contracting Government must grant all powers, licences or

permissions with respect to its territory as may be necessary for:

(a)

the construction, operation or maintenance of any works;

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104 Water Amendment Bill 2008 No. , 2008

(b) the implementation of any measures; or

(c)

the carrying out of any operation,

required to be undertaken by any other Contracting Government or a

public authority pursuant to this Agreement.

63. Works for Benefit of State Contracting Governments

(1)

Any State Contracting Government which, either alone or jointly

with another Contracting Government, proposes to carry out any

work not provided for by this Agreement within the banks of the

River Murray in South Australia or the upper River Murray, must

submit particulars of the proposal, including plans of the proposed

work, to the Authority.

(2)

Sub-clause (1) does not apply to the Great Darling Anabranch.

(3)

The Authority may approve the plans of the proposed work with or

without alteration.

(4)

The Authority may from time to time stipulate conditions for the

operation of any work constructed under this clause which:

(a)

provides for the storage of water; or

(b) will affect the flow, use, control or quality of the water of

the River Murray,

in so far as that operation may affect regulation of the flow or the

quality of the water.

(5)

The cost of constructing, operating and maintaining works

proposed pursuant to this clause must be borne by:

(a)

the State Contracting Government proposing the work; or

(b) the Contracting Governments jointly proposing the work in

such proportion as may be agreed between those Contracting

Governments.

(6)

A State Contracting Government must operate any work carried

out pursuant to this clause in such manner as the Authority may

require from time to time.

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64. Declaration that Works or Measures are Effective

At any time after construction of any work or implementation of any

measure authorised pursuant to sub-clause 56(1) has commenced, the

Authority may declare that work or measure to be effective for the

purposes of this Agreement.

65. Maintenance of Works

A Contracting Government nominated to construct a work pursuant to

paragraph 52(1)(b) must maintain it and keep it effective for its original

purpose, unless it has been declared ineffective pursuant to clause 70.

66. Procedures for Operation of Works

The Authority may, from time to time, determine procedures for the

operation of works constructed or measures implemented pursuant to this

or the former Agreement.

67. Dredging and Snagging

(1)

The Authority may, to the extent provided for in the corporate plan

or in an emergency, from time to time direct that the River Murray

upstream of any weir constructed pursuant to this or the former

Agreement be dredged or snagged for such distance as the

Authority may determine.

(2)

The distance determined pursuant to sub-clause (1) must not

exceed the distance to which the navigability of the River Murray

is affected by the weir.

(3)

The Contracting Government which constructed the weir must

carry out the Authoritys direction and meet the cost involved,

unless the corporate plan provides that the Authority will meet the

whole or part of the cost.

68. Operation of Works

(1)

The Contracting Government nominated to operate a work

pursuant to paragraph 52(1)(b) must:

(a)

operate it in accordance with any procedures determined by

the Authority under clause 66;

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106 Water Amendment Bill 2008 No. , 2008

(b) if the work is a lock, maintain immediately downstream of

the lock such depth of water -

(i)

as is sufficient for navigation of vessels drawing 1.4

metres of water; or

(ii) such other depth determined by the Authority under

clause 124,

except when the lock is closed for maintenance or when

there is an emergency.

(2)

Paragraph (1)(b) does not apply to Weir and Lock No.26

Torrumbarry nor to Weir and Lock No.15 Euston.

69. Performance of Joint Duties

Where Contracting Governments are jointly under a duty to operate or

maintain any works or implement any measures or to carry out any

operation, any questions as to which Government is to perform that duty

or carry out that operation shall be resolved:

(a)

by mutual agreement; or

(b) if agreement is not possible, by the Authority.

70. Ineffective Works

(1)

The Authority may at any time and in accordance with the asset

management plan, or in an emergency, declare ineffective the

whole or part of any work or measure which is subject to this or the

former Agreement.

(2)

The Authority may require that the whole or any part of any work

declared to be ineffective be dismantled.

PART IX - FINANCE

71. Definitions

In this Part:

"annuity contribution" has the meaning set out in sub-clause 73(1);

"investigations, construction and administration costs" means the

costs of:

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(a)

investigating and constructing works set out in Schedule A;

and

(b) investigating and constructing any other works and

implementing measures authorised under this Agreement;

and

(c)

studies, programs, surveys and investigations carried out

pursuant to clause 43; and

(d) establishing systems referred to in clause 45; and

(e)

systems established pursuant to a request made under

paragraph 47(b); and

(f)

special action taken under sub-clause 51(5) which the

Authority has determined to be investigations, construction

and administration costs; and

(g) any payment by the Authority in respect of the construction

of works under clause 57; and

(h) complying with the direction given under sub-clause 60(3);

and

(i)

dismantling works referred to in sub-clause 70(2); and

(j)

any payment by the Authority under paragraph 138(a); and

(k) administrative and other expenses of the Committee, Basin

Community Committee, Authority and the Ministerial

Council in respect of their functions, powers and duties;

"major or cyclic maintenance" has a meaning determined by reference

to the guidelines established by the Authority under sub-clause 73(3);

"operation and maintenance costs" means the costs of:

(a)

operating and maintaining works set out in Schedule A; and

(b) operating and maintaining any other works authorised under

this Agreement; and

(c)

operating and maintaining systems referred to in clause 45;

and

(d) operating and maintaining systems established pursuant to a

request made under paragraph 47(b); and

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108 Water Amendment Bill 2008 No. , 2008

(e)

special action taken under sub-clause 51(5) which the

Authority has determined to be operation and maintenance

costs; and

(f)

any payment made by the Authority in respect of the

operation or maintenance of works under clause 57; and

(g) such dredging or snagging carried out under clause 67 which

the corporate plan provides will be met by the Authority;

and

(h) any payment made by the Authority under paragraph 138(b).

72. Apportionment of Costs

(1)

The Ministerial Council, after considering any recommendation of

the Authority, must determine:

(a)

what contribution, if any, is to be made by Queensland or the

Australian Capital Territory, or both; and

(b) whether some or all of that contribution is to be made as a

lump sum or in a comparable manner to a manner provided

for in sub-clause (3) or (4) or sub-clause 73(1).

(2)

Subject to sub-clause (1), the Ministerial Council:

(a)

may, on the recommendation of the Authority, from time to

time determine which proportion of the services provided by

river operations is attributable to each State Contracting

Government; and

(b) must, at intervals not exceeding five years, reconsider the

proportions determined under paragraph (2)(a); and

(c)

may, on the recommendation of the Authority, alter the

proportions determined under paragraph (2)(a).

(3)

Unless the Ministerial Council decides otherwise and subject to

any decision of the Ministerial Council under sub-clause (1), a

State Contracting Government must contribute to operation and

maintenance costs in the relevant proportion determined under

sub-clause (2).

(4)

Unless the Ministerial Council decides otherwise and subject to

any decision by the Ministerial Council under sub-clause (1) and

the provisions of clause 73:

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(a)

the Commonwealth Government must contribute one-quarter

of all investigations, construction and administration costs

after first deducting any contribution to those costs made by:

(i)

Queensland and the Australian Capital Territory; or

(ii) any State pursuant to any understanding reached

between that State and the Contracting Governments;

and

(b) the State Contracting Governments must together contribute

three-quarters of all investigations, construction and

administration costs:

(i)

relating to river operations, in the relevant proportions

determined under sub-clause (2); and

(ii) relating to measures implemented under this

Agreement, in equal shares.

(5)

The Ministerial Council, after considering any recommendation by

the Authority, must determine whether the costs of any special

action taken under sub-clause 51(5) are investigations, construction

and administration costs or operation and maintenance costs.

73. Annuity Contributions

(1)

The Ministerial Council, on the recommendation of the Authority,

may from time to time determine that a Contracting Government

must make an annual annuity contribution in respect of either or

both of:

(a)

investigations, construction and administration costs; and

(b) major or cyclic maintenance costs,

which the Contracting Government might otherwise be required to

contribute under sub-clause 72(1), (3), paragraph 72(4)(a) or

sub-paragraph 72(4)(b)(i), in any future year.

(2)

In fixing any annuity contribution under sub-clause (1), the

Ministerial Council must have regard to the Authoritys estimate of

costs which will be incurred during the next ensuing 30 years (or

such other period as the Authority determines), as provided in the

asset management plan, in relation to either or both of:

(a)

the construction or renewal; and

(b) major or cyclic maintenance,

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of works constructed, operated, maintained or renewed for the

purposes of river operations (as the case requires) including any

interest or other sums receivable or payable in respect of any

income received, by the Authority from time to time in relation to

those works.

(3)

For the purposes of this Part, the Authority must establish

guidelines for determining what is, and what is not, major or cyclic

maintenance.

74. Annual and forward estimates

(1)

The Authority must prepare:

(a)

detailed annual estimates of its known and anticipated

expenditure for the next financial year; and

(b) forward estimates of its known and anticipated expenditure

for the three successive financial years following the next

financial year.

(2)

Annual and forward estimates must:

(a)

show the estimated amount to be contributed by each

Contracting Government; and

(b) be sent to each Contracting Government as soon as

practicable in each year; and

(c)

be included in the corporate plan for approval by the

Ministerial Council.

(3)

Annual and forward estimates may be amended by amendments to

the corporate plan as provided in clause 35.

Note -- the Contracting Governments note their agreement of May 2006 to at least maintain their

2006-07 contributions to the Murray-Darling Basin Commission in real terms for the

four years to 2010-2011. The Contracting Governments recommit to that agreement for

the purpose of making their funding contributions to the Authority to the end of

2010-2011, for the functions the Authority performs that were previously performed by

the Murray-Darling Basin Commission.

75. Payments by Contracting Governments

Each Contracting Government must pay any amount payable by it under

clause 72 or 73 as and when required by the Authority.

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76. Authority to Account

(1)

All moneys received by the Authority from the Contracting

Governments under this Agreement must be credited to the

Murray-Darling Basin Special Account.

(2)

The Authority must account to the Ministerial Council and each

Contracting Government for all moneys received from the

Contracting Governments under this Agreement.

77. Application of Moneys by Authority

(1)

Subject to sub-clause (3), the Authority must apply money paid by

the Contracting Governments in accordance with the relevant

estimates referred to in paragraph 74(1)(a), the corporate plan and

the other provisions of this Agreement.

(2)

In any financial year, the Authority may:

(a)

spend any anticipated savings on an item in the estimates

prepared or revised under paragraph 74(1)(a) on any item

which it anticipates will be overspent;

(b) advance sums to any Constructing Authority, public

authority or person for expenditure in accordance with those

estimates in that, or any subsequent financial year;

(c)

advance working capital to a Constructing Authority and

replenish amounts expended from that advance from time to

time.

(3)

The Authority may accumulate:

(a)

any sums received under sub-clause 72(3) or (4) for the

purposes of river operations, but not expended in any year;

and

(b) any annuity contributions received under clause 73,

for use in subsequent years.

(4)

Any sum referred to in sub-clause (3) and any interest thereon

must:

(a)

in the case of sums received under sub-clause 72(3), only be

expended on operation and maintenance costs; and

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112 Water Amendment Bill 2008 No. , 2008

(b) in the case of sums received under sub-clause 72(4), only be

expended on investigations, construction and administration

costs; and

(c)

in the case of annuity contributions received under

clause 73:

(i)

from a State Contracting Government, only be

expended on either:

(A) investigations, construction and administration

costs; or

(B) major or cyclic maintenance costs,

of river operations, as the case requires; or

(ii) from the Commonwealth, only be expended on

investigations, construction and administration costs

of river operations.

78. Payments by Authority to Constructing Authorities

(1)

The Authority must each year, and in accordance with the

estimates referred to in paragraph 74(1)(a) and the corporate plan,

pay to any Constructing Authority required by this Agreement:

(a)

to construct, operate or maintain any works;

(b) to carry on any operation;

(c)

to implement any measures,

an amount sufficient to defray either -

(d) the whole cost; or

(e)

in the case of the cost referred to in paragraph 138(b), three

quarters of the cost,

to be incurred by the Constructing Authority for those purposes in

that year.

(2)

The Authority must make the payments required under sub-clause

(1) at such times and in such manner as is agreed between the

Authority and the Constructing Authority.

(3)

The Authority must not make any payment relating to the

construction of any works or implementation of any measures

referred to in sub-clause 56(1) until construction or implementation

has been authorised in accordance with that sub-clause.

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79. Contracting Governments to Account

Each Contracting Government and any public authority must account to

the Authority for all moneys received from the Authority under this

Agreement.

80. Unexpended Balances

(1)

Any unexpended balance of moneys paid to the Authority by

Contracting Governments must only be expended under this

Agreement in accordance with the corporate plan.

(2)

The Authority must notify Contracting Governments of any

unexpended balances of moneys referred to in sub-clause (1) held

by it at the end of any financial year.

81. List of Assets

(1)

Except as provided in sub-clause (2) the Authority must keep a list

of assets acquired by:

(a)

the Authority;

(b) a Constructing Authority with funds provided by the

Authority.

(2)

The Authority need not keep a list of assets referred to in

paragraph (1)(b) if it is satisfied that:

(a)

proper records of those assets are kept by the Constructing

Authority; and

(b) copies of those records will be provided to the Authority at

its request.

82. Disposal of Surplus Assets

(1)

The Authority may, with the approval of the Committee, direct

when and how surplus assets acquired by a Constructing Authority

with funds provided by the Authority, shall be disposed of.

(2)

Subject to sub-clause (3), the Committee must determine how

proceeds from the disposal of surplus assets are:

(a)

to be paid to the Authority and credited against future capital

and renewal contributions by; or

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114 Water Amendment Bill 2008 No. , 2008

(b) to be distributed among,

the Contracting Governments, having regard to the contributions

made by each Contracting Government to the acquisition of those

assets.

(3)

A determination under sub-clause (2) that relates to RMO assets

must be consistent with the asset agreement.

83. Revenue

(1)

Any money received by a Contracting Government or a public

authority from the use of works subject to this Agreement must be

paid to the Authority.

(2)

The Authority may provide and charge for goods and services

incidental to its functions which are not otherwise provided for in

this Agreement.

(3)

Money paid to the Authority under this clause must either:

(a)

be expended on investigations, construction and

administration costs; or

(b) applied in accordance with sub-clause 80(1).

84. Compensation for Damage by Works

The Contracting Governments must meet, in equal shares, any

compensation for damage paid by a Constructing Authority pursuant to

the Water Act or a State MDB Act:

(a)

caused or arising from anything done by it in constructing,

operating or maintaining any works or executing any

measures provided for in this Agreement; and

(b) which has not been met or contributed to by the Authority

under paragraph 57(c).

PART X - REPORTS

85. Preparation of Reports

As soon as practicable after the end of each financial year, the Chief

Executive must prepare and give to the Ministerial Council a report as

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required under section 214 of the Water Act, which will include a report

on the Authoritys proceedings and activities during that year.

PART XI - PROCEEDINGS IN DEFAULT

86. Failure to Perform Works or Contribute Cost

(1)

The Authority must immediately notify the Committee, the

Ministerial Council and each other Contracting Government if any

Contracting Government fails, after being so required by the

Authority to:

(a)

do anything in relation to any works or measures; or

(b) pay any money to the Authority,

which it is obliged to do or pay under this Agreement.

(2)

The Authority may, in consultation with the Committee, authorise

one or more of the Contracting Governments which is not in

default wholly or partly to make good any failure which relates to:

(a)

the construction, operation or maintenance of any works;

(b) the carrying on of any operation; and

(c)

the implementation of any measures.

(3)

A Contracting Government authorised by the Authority under

sub-clause (2):

(a)

may enter the territory of the defaulting Contracting

Government to do whatever it has been authorised to do by

the Authority;

(b) shall be deemed to have all powers, licences and permissions

as are required from the defaulting Contracting Government

to do whatever it has been authorised to do by the Authority;

(c)

shall be deemed to have all the rights and powers of a

Constructing Authority, including the right to receive any

payment due under clause 78, in respect of whatever it has

been authorised to do by the Authority; and

(d) may, in a court of competent jurisdiction, recover, as a debt

due from the defaulting Contracting Government, all money

reasonably expended by it in doing whatever it has been

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116 Water Amendment Bill 2008 No. , 2008

authorised to do by the Authority and which has not been

paid to it by the Authority by virtue of the right conferred by

paragraph (3)(c), together with interest at the prescribed rate.

(4)

A defaulting Contracting Government shall once more be deemed

to be the Constructing Authority when:

(a)

any failure referred to in paragraph (1)(a) has been made

good; and

(b) it has paid all money payable by it under paragraph (3)(d).

(5)

Unless the Authority, in consultation with the Committee, decides

otherwise in any particular case, a Contracting Government which

fails to pay money due under clause 75 to the Authority by the due

date is liable to pay interest on any outstanding balance at the

prescribed rate.

(6)

Any other Contracting Government:

(a)

may pay the outstanding balance owed by a Contracting

Government under clause 75, together with interest at the

prescribed rate; and

(b) may recover the amount so paid in a court of competent

jurisdiction as a debt due from the defaulting Contracting

Government.

(7)

Any interest payable under this clause shall be calculated from the

due date to the date of actual payment.

PART XII -- DISTRIBUTION OF WATERS

Note -- clause 29 requires the Authority to act in accordance with clause 30 (objectives and

outcomes set by the Committee, and determinations made by the Committee) when

exercising its functions in relation to river operations.

DIVISION 1 -- TIER 1 DISTRIBUTION OF WATERS

SUBDIVISION A -- APPLICATION OF DIVISION 1

87. Application of Division 1

This Division applies subject to:

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(a)

the provisions of Divisions 2 and 3 of this Part; and

(b) the provisions of Subdivision F of this Division.

SUBDIVISION B - STATE ENTITLEMENTS TO WATER

88. South Australia's Monthly Entitlement

South Australia is entitled to receive:

(a)

the following monthly quantities of River Murray water -

July ...................................................... 50 500 megalitres

August .................................................. 66 000 megalitres

September............................................. 77 000 megalitres

October............................................... 112 500 megalitres

November ........................................... 122 000 megalitres

December ........................................... 159 000 megalitres

January ............................................... 159 000 megalitres

February ............................................. 136 000 megalitres

March ................................................. 128 000 megalitres

April..................................................... 77 000 megalitres

May...................................................... 35 000 megalitres

June...................................................... 32 000 megalitres

except as provided in clause 128; and

(b) 58,000 megalitres per month for dilution and losses, unless

the Ministerial Council determines otherwise; and

(c)

such additional quantities for dilution as the Ministerial

Council determines from time to time.

89. Measurement of South Australia's Entitlement

(1)

Each month South Australia is deemed to receive the sum of the

water flowing in that month in:

(a)

the River Murray between the confluences of the Rufus and

Lindsay Rivers with the River Murray; and

(b) the Lindsay River near its confluence with the River Murray.

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(2)

The Authority must determine the flows referred to in sub-clause

(1) in such manner as it sees fit.

90. Variation of South Australia's Entitlements

The Authority may from time to time, at the request of the Committee

member for South Australia, vary for a specified sequence of months any

of the monthly quantities which that State is entitled to receive under

clause 88 without increasing the total of those quantities for that

sequence.

91. South Australia's Storage Right

(1)

South Australia may store any part of its entitlement under

clause 88 (as adjusted for interstate trade) for the purposes of

meeting critical human water needs in the upper River Murray

storage or storages of its choice, beyond the time at which that part

of its entitlement would otherwise have been delivered under this

Agreement, provided such storage does not affect water

availability for New South Wales or Victoria that would otherwise

have existed under this Agreement had it not been for the exercise

by South Australia of its right under this clause.

(2)

South Australia may store any part of its entitlement under

clause 88 (as adjusted for interstate trade) for the purpose of

private carry-over in the upper River Murray storage or storages of

its choice, beyond the time at which that part of its entitlement

would otherwise have been delivered under this Agreement,

provided such storage does not affect water availability or storage

access for New South Wales or Victoria that would otherwise have

existed under this Agreement had it not been for the exercise by

South Australia of its right under this clause.

(3)

During the period before a Schedule is made under Subdivision F

of Division 1 of this Part, the Authority is to account for water

stored pursuant to this clause, as far as possible, consistently with

Subdivisions D and E of this Division.

92. Use of Lake Victoria

If the Authority decides that the flow or prospective flow of the River

Murray downstream of its junction with the Great Darling Anabranch is,

or will be for any month in excess of the sum of:

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(a)

the quantities which South Australia is entitled to receive in

that month under clause 88 or 90;

(b) any quantities which, in the opinion of the Authority, ought

to be and can be impounded in Lake Victoria during that

month with the object of filling that storage at some time

before the end of the next ensuing month of May; and

(c)

any quantities required for use by New South Wales and

Victoria, downstream of the junction of the River Murray

and the Great Darling Anabranch,

South Australia may receive that excess in addition to the quantity of

water which it is entitled to receive under clause 88 or 90.

93. Surplus Flow to South Australia

The quantity of water that South Australia is entitled to receive in any

month shall not be reduced if it has received a greater quantity than it was

entitled to receive under clause 88 or 90 in any previous month.

94. Entitlements of New South Wales and Victoria

(1)

Except as otherwise expressly provided in Subdivision D of this

Division and subject to South Australias entitlement under

clause 88 or 90, New South Wales and Victoria are each entitled to

use:

(a)

all the water in tributaries of the upper River Murray

downstream of Doctors Point within its territory, before it

reaches the River Murray;

(b) half the natural flow at Doctors Point;

(c)

half the water entering the Menindee Lakes from the Darling

River, subject to the prior entitlement of New South Wales

to use water from the Menindee Lakes Storage as provided

in clause 95;

(d) subject to paragraph (1)(c), an amount of water from the

upper River Murray equivalent to any water contributed by

any tributary or any outfall approved by the Ministerial

Council entering the upper River Murray from its territory

downstream of Doctors Point; and

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120 Water Amendment Bill 2008 No. , 2008

(e)

half the volume of water calculated in accordance with

clause 8 of Schedule F.

(2)

Entitlements under sub-clause (1) shall not be affected by the

declaration of a period of special accounting except as specifically

provided in Subdivision E of this Division.

95. New South Wales' Entitlement to Water from Menindee Lakes

(1)

Whenever water in the Menindee Lakes Storage falls below 480

000 megalitres, New South Wales may use the stored water as it

requires until the volume next exceeds 640 000 megalitres.

(2)

Whenever sub-clause (1) does not apply, New South Wales may:

(a)

divert from -

(i)

the Menindee Lakes Storage; or

(ii) the Darling River below the Menindee Lakes Storage;

(iii) the River Murray, below its junction with the Darling

River; or

(b) release from the Cawndilla outlet regulator,

a total of up to 100,000 megalitres in any 12 month period

commencing on 1 April.

(3)

Whenever the Ministerial Council determines that:

(a)

releases from the Menindee Lakes Storage exceed the water

required for storage in Lake Victoria and to supply South

Australias entitlement; or

(b) water in the Menindee Lakes Storage exceeds 1 680 000

megalitres and the amount of the excess plus the estimated

water currently in the River Murray and Darling River below

the Menindee Lakes Storage is sufficient to supply South

Australias entitlement and to fill Lake Victoria,

any of that water used by New South Wales or released to provide

for the retention of floodwaters shall not be deemed to be part of its

entitlement under sub-clause (2).

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96. New South Wales' and Victoria's Supply to South Australia

New South Wales and Victoria must provide, in equal proportions, South

Australias entitlement under clause 88 or 90 from the water available to

them under clauses 94 and 95.

97. Limitations on Use by New South Wales and Victoria

Unless the Ministerial Council determines otherwise, New South Wales

or Victoria must not use water from the upper River Murray to an extent

which may result in less than half the minimum reserve determined under

clause 103 being held in upper River Murray storages and allocated to

that State at the end of the following May.

SUBDIVISION C - CONTROL BY AUTHORITY

98. Authority's Role in Operation of Storages

(1)

The Authority may give directions for the release of water from

upper River Murray storages and water must be released in

accordance with any such directions.

(2)

The Authority may give directions under sub-clause (1) in the form

of standing procedures, which it may amend or suspend at any

time, except as provided in clause 100.

(3)

In giving directions under this clause the Authority must have

regard to -

(i)

maintaining supply to South Australia of the quantities of

water which that State is entitled to receive;

(ii) facilitating the exercise by South Australia of its right under

clause 91, including the delivery of water stored in exercise

of that right;

(iii) maintaining a minimum reserve of water as provided for in

clause 103; and

(iv) facilitating the exercise by New South Wales and Victoria of

their respective rights to use water from the upper River

Murray, as they require.

(4)

In giving directions under this clause the Authority may also have

regard to -

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122 Water Amendment Bill 2008 No. , 2008

(i)

the improvement or maintenance of water quality in the

River Murray (including the upper River Murray); and

(ii) other water management and environmental objectives

consistent with this Agreement.

99. Limitation on Menindee Lakes Operation

(1)

The Authority must not direct that water be released from

Menindee Lakes Storage after its volume falls below 480,000

megalitres and before it next exceeds 640,000 megalitres.

(2)

Subject to sub-clause (1), the Committee may, by majority vote,

require the Authority to direct that water be released from

Menindee Lakes Storage.

100. Procedures for Dartmouth Dam Operation

The Authority must not amend or, except in an emergency, suspend any

standing procedures affecting the release of water through the power

station of Dartmouth Reservoir without first consulting the operator of

the power station and the Constructing Authority for Victoria.

101. Water Estimated to be Under the Control of the Authority

"Water estimated to be under the control of the Authority" means the

aggregate of:

(a)

water stored in the Hume and Dartmouth Reservoirs above

their minimum operating levels;

(b) water stored in Lake Victoria above its minimum operating

level;

(c)

water available for release from the Menindee Lakes Storage

at the direction of the Authority in accordance with

clause 99, after allowing for New South Wales prior

entitlements under clause 95;

(d) the estimated natural flow of the River Murray at Doctors

Point before the end of the following May;

(e)

water calculated in accordance with clause 9 of Schedule F;

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(f)

the difference between the estimated amount of water in

transit in the upper River Murray and the estimated amount

of water in transit at the end of the following May.

102. Available Water

From time to time the Authority must:

(a)

determine the minimum amount of water estimated to be

under the control of the Authority;

(b) determine the allowance to be made until the end of the

following May for -

(i)

losses by evaporation and other means in the upper

River Murray; and

(ii) the entitlements of South Australia under paragraphs

88(b) and 88(c);

(c)

having regard to its determinations under paragraphs 102(a)

and 102(b) determine the water available -

(i)

for distribution to New South Wales, Victoria and

South Australia before the end of the following May;

and

(ii) for holding in reserve at the end of the following May.

103. Minimum Reserve

(1)

From time to time the Authority must determine, in accordance

with the formula set out in sub-clauses (2) and (3), the minimum

reserve to be held at the end of the following May.

(2)

Unless the Ministerial Council determines otherwise, the minimum

reserve shall be the lesser of:

(a)

One third of the water available determined under paragraph

102(c)

less

The sum of the monthly entitlements of South Australia

under paragraph 88(a) up to the end of the following May

plus

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124 Water Amendment Bill 2008 No. , 2008

The sum of any imbalance of use during a period of special

accounting calculated under clause 126; and

(b) 835,000 megalitres.

(3)

If the minimum reserve determined under paragraph (2)(a) is less

than zero, then the minimum reserve shall be deemed to be zero.

(4)

Unless the Ministerial Council determines otherwise, the first

250,000 megalitres of any minimum reserve shall be held in Lake

Victoria.

(5)

When considering:

(a)

whether to make a determination under either of sub-clauses

(2) or (4); and

(b) the substance of any determination under either of

sub-clauses (2) or (4),

the Ministerial Council:

(c)

must have regard to the provisions of the Basin Plan, and in

particular, to such of those provisions that are required by

Part 2A of the Water Act;

(d) before the Basin Plan first takes effect, must take into

account the requirements for conveyance water and seek the

advice of the Authority in relation to those requirements.

104. Use of State Works to Convey Murray Water

The Authority may arrange for water to be conveyed from one part of the

upper River Murray to another via works under the control of a State

Contracting Government, on such terms as may be agreed between the

Authority and that State Contracting Government.

SUBDIVISION D - WATER ACCOUNTING

105. General

The following provisions give effect to the principles set out in the

preceding Subdivisions of this Division.

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106. Allocation of Water to New South Wales and Victoria

(1)

In respect of any period:

(a)

the natural flow of the River Murray at Doctors Point; and

(b) the volume of water calculated in accordance with clause 10

of Schedule F,

must be allocated between New South Wales and Victoria as

provided in sub-clause (2).

(2)

The quantity of water estimated for any month in accordance with

sub-clause (1) shall be allocated as follows:

(a)

for any of the months from May through to August

inclusive, the whole quantity shall be allocated half each to

New South Wales and Victoria; and

(b) for any of the months from September through to April

inclusive -

(i)

whenever Victoria is subject to a period of special

accounting, the first 12,900 megalitres per month

(being equivalent to the ceding by Victoria to New

South Wales of a volume of 6,450 megalitres per

month); and

(ii) at any other time, the first 16,700 megalitres per

month (being equivalent to the ceding by Victoria to

New South Wales of a volume of 8,350 megalitres per

month),

shall be allocated to New South Wales, and the remainder

shall be allocated half each to New South Wales and

Victoria.

107. Allocation of Water in Menindee Lake Storage

(1)

Half the water entering the Menindee Lakes Storage from the

Darling River is allocated to New South Wales and half to

Victoria.

(2)

Of the water allocated to Victoria and stored in the Menindee

Lakes Storage, Victoria must cede 4,170 megalitres each month to

New South Wales.

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108. Tributary Inflows

(1)

The quantity of water which in any period enters the upper River

Murray downstream of Doctors Point from a tributary, or from any

artificial outfall approved by the Ministerial Council for the

purposes of this clause, other than quantities referred to in

clause 107, is allocated to the State from which the water enters the

upper River Murray.

(2)

The volume of water calculated in accordance with

sub-clause 11(1) of Schedule F is allocated to New South Wales.

(3)

The volume of water calculated in accordance with

sub-clause 11(2) of Schedule F is allocated to Victoria.

109. Use by New South Wales and Victoria of Allocated Water

New South Wales and Victoria are respectively deemed to use the

quantity of water:

(a)

diverted from the upper River Murray by an offtake under

the jurisdiction of that State, unless the Ministerial Council

determines otherwise; and

(b) calculated under sub-clause 12(1) of Schedule F, in the case

of New South Wales; and

(c)

calculated under sub-clause 12(2) of Schedule F, in the case

of Victoria.

110. Losses

(1)

Any water which is lost by evaporation or other means from the

upper River Murray is deemed to have been used by New South

Wales or Victoria.

(2)

Unless otherwise determined by the Ministerial Council:

(a)

losses attributable to evaporation from a major storage will

be deemed to have been used in proportion to the quantities

of water allocated to New South Wales or Victoria in that

storage;

(b) losses attributable to an unregulated flow in any part of the

upper River Murray will be deemed to have been used in

proportion to the flow allocated to New South Wales or

Victoria in that part of the river;

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(c)

all other losses will be deemed to have been used half each

by New South Wales and Victoria.

(3)

For the purposes of this clause an "unregulated flow" means a flow

which has not been planned by the Authority.

111. New South Wales' and Victoria's Supply to South Australia

For the purposes of this Subdivision any water supplied in any month to

South Australia which it is entitled to receive under clause 88 or 90 is

deemed to be supplied half each by New South Wales and Victoria and

the Authority must make appropriate adjustments to allocations between

New South Wales and Victoria of water in the upper River Murray so as

to give effect to those States obligations under clause 96.

112. Commencement of Continuous Accounting of Carryover of Stored

Water

Half the water in each major storage on 1 December 1989 is deemed to

have been allocated to New South Wales and half to Victoria.

113. Reallocation of Water Between New South Wales and Victoria

(1)

By agreement between New South Wales and Victoria, any

quantity of water allocated to one of those States and in store in

any of the upper River Murray storages or in transit in a specified

part of the upper River Murray, may be exchanged for a quantity of

water allocated to the other State and in store in another of the

upper River Murray storages or in transit in another specified part

of the upper River Murray, if such an exchange of water does not

prejudice the entitlement of South Australia.

(2)

The Authority may at any time, with the consent of either New

South Wales or Victoria, determine that certain quantities of water

in transit in the upper River Murray are surplus to the requirements

of that State and reallocate the whole or part of such quantities

from that State to the other State.

114. Efficient Regulation of the River Murray

Any water used by either New South Wales or Victoria or supplied to

South Australia by either of those States is deemed to be provided from

water allocated to that State and the Authority may, as necessary to

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128 Water Amendment Bill 2008 No. , 2008

ensure the availability of appropriately allocated water at the place of

such use or supply, reallocate quantities of water in the upper River

Murray but must not thereby alter the total quantities of water allocated to

New South Wales or Victoria respectively, in the upper River Murray.

115. Accounting Procedures

Subject to clauses 112, 113, 114, 116 and 121, the quantity of water in

any part of the upper River Murray and which is allocated to either New

South Wales or Victoria is deemed:

(a)

to increase in any period by the quantity of water allocated

to that State flowing into that part in that period; and

(b) to decrease in any period by any quantities of water -

(i)

used by that State by way of diversion or loss from

that part in that period; or

(ii) passed from that part in that period for -

� downstream use by that State,

� supply by that State to South Australia,

� conveyance to another part of the upper River

Murray as water allocated to that State; or

(iii) released from that part in that period and determined

under clause 122 to be a release of water allocated to

that State; or

(iv) spilled from that part in that period and deemed under

clause 117 to be a spill of water allocated to that State.

116. Internal Spills

(1)

In any major storage, water allocated either to New South Wales or

Victoria must be re-allocated to the other State to prevent the

quantity of water allocated to either State in the storage exceeding

half the lesser of:

(a)

the target capacity of the storage; or

(b) the quantity of water stored when releases are being made

for flood mitigation.

(2)

In Hume and Lake Victoria, "target capacity" means the capacity

of the reservoir at the Full Supply Level.

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(3)

In Dartmouth "target capacity" means the lesser of:

(a)

the capacity of the reservoir at the Full Supply Level; or

(b) the quantity of water stored when water is being released

through the hydro-electric power station and the storage

level is above the level specified by the Ministerial Council

for the operation of the power station.

(4)

In Menindee Lakes "target capacity" means the greater of the

capacity:

(a)

at the Full Supply Level; or

(b) at such higher level as may be determined from time to time

by the Ministerial Council.

(5)

When water in Dartmouth Reservoir is to be re-allocated under

sub-clause (1) and there is capacity in Hume Reservoir available to

the State from which water is to be re-allocated to store some or all

of the re-allocated water, a compensating adjustment must be made

in Hume Reservoir so that the accounts of the State from which the

water is to be re-allocated in Dartmouth Reservoir are not thereby

reduced.

117. Accounting for Spill from Storages

Any quantity of water spilled from any of the upper River Murray

storages, including water released solely to provide space for the

retention of floodwaters, is deemed to be water spilled out of the waters

allocated to New South Wales or Victoria respectively, in such

proportions as minimizes the re-allocation of water under

sub-clause 116(1).

118. Accounting for Releases from Dartmouth Reservoir

(1)

Whenever the storage level in Dartmouth Reservoir is above the

level determined for the purposes of this sub-clause by the

Ministerial Council, releases made from Dartmouth Reservoir

through the hydro-electric power station will be deemed to be spills

and will be accounted for as provided in clause 117.

(2)

No release from Dartmouth Reservoir will be attributable to the

allocation of water to New South Wales or Victoria if the quantity

of water in Dartmouth Reservoir allocated to that State is less than

or equal to half the minimum operating storage in the reservoir.

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(3)

Releases from Dartmouth Reservoir other than those covered by

sub-clauses (1) and (2) will be attributable to the allocation of

water to New South Wales or Victoria in such proportions as tend

most to equalize the quantities of water allocated to those States in

Hume Reservoir.

119. Accounting for Releases from Hume Reservoir

(1)

Any release made from Hume Reservoir for the deliberate purpose

of transferring water to Lake Victoria for use at a later date will be

attributable to the allocation of water to New South Wales or

Victoria in such proportions as tend most to equalize the quantities

of water allocated to the respective States in Lake Victoria and the

Menindee Lakes Storage.

(2)

Releases from Hume Reservoir other than those covered by

sub-clause (1) will be attributable to the allocation of water to New

South Wales or Victoria in such proportions as satisfy the expected

downstream water requirements of each State.

120. Accounting for Releases from Menindee Lakes Storage

(1)

For the purposes of this clause releases from Menindee Lakes

Storage consist of:

(a)

water required to maintain a flow throughout the main

course of the Darling River downstream of Menindee Lakes;

(b) water released to satisfy use by New South Wales in the

main course of the Darling River downstream of Menindee

Lakes;

(c)

water released through the Lake Cawndilla Outlet Regulator;

(d) water released down the main course of the Darling River

downstream of Menindee Lakes Storage to satisfy directions

given by the Authority under sub-clause 98(1);

(e)

any other water released from the Menindee Lakes Storage

which can be used either to supply South Australias

entitlement under clause 88 or 90 or to supply water to Lake

Victoria.

(2)

Whenever New South Wales is using water pursuant to

sub-clause 95(1) all release from Menindee Lakes Storage will be

attributed to the allocation of water to New South Wales.

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(3)

Whenever sub-clause 95(1) does not apply to the use of water by

New South Wales from the Menindee Lakes Storage:

(a)

releases under paragraph (1)(a) will be attributed equally to

the allocations of water to New South Wales and Victoria;

(b) releases under paragraph (1)(b) and (1)(c) will be attributed

to the allocation of water to New South Wales;

(c)

releases under paragraph (1)(d) and (1)(e) will be attributed

to the respective allocations of New South Wales and

Victoria in such proportions as tend most to equalize the

water in Lake Victoria allocated to each State, provided that

such proportions do not -

(i)

cause the water allocated either to New South Wales

or to Victoria to fall below 240,000 megalitres;

(ii) cause water to be re-allocated between the States

under clause 116.

121. Reallocation of Water in Menindee Lakes Storage

At the conclusion of any period during which New South Wales is using

water pursuant to sub-clause 95(1), the quantities of water stored in the

Menindee Lakes Storage and allocated respectively to New South Wales

and Victoria must be adjusted so that the difference between those

quantities is the same as the difference in the allocated quantities at the

beginning of that period.

122. Accounting for Dilution Flows

(1)

Whenever the Authority directs under clause 98 that the flow of

water is to exceed the water order at a particular point, unless the

Ministerial Council determines otherwise, the proportion of the

water order attributed respectively to New South Wales and

Victoria must be increased by such amounts as tend most to

equalise the respective allocations to New South Wales and

Victoria of the total flow at that point.

(2)

For the purpose of this clause the "water order" is the flow of water

at a particular point which is necessary:

(a)

to meet diversions by New South Wales and Victoria, losses

and dilution flows downstream of that point;

(b) to meet South Australias entitlement; and

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132 Water Amendment Bill 2008 No. , 2008

(c)

to supply storages downstream of that point.

SUBDIVISION E - PERIODS OF SPECIAL ACCOUNTING

123. Declaration of Periods of Special Accounting

(1)

Unless the Authority is satisfied that the reserve allocated to either

New South Wales or Victoria at the end of the following May will

be greater than 1,250,000 megalitres, the Authority must declare a

period of special accounting between that State and South

Australia.

(2)

A period of special accounting:

(a)

may be declared at any time after the end of July in any year

and before the end of May in the following year;

(b) unless the Ministerial Council dec ides otherwise, will be

deemed to have commenced on 1 August in that year,

whenever it is in fact declared.

124. Variation of Navigation Depths During Restrictions

The Authority may vary the depth of water to be maintained immediately

downstream of a lock under sub-paragraph 68(1)(b)(i), during any period

of special accounting.

125. Special Accounts to be Kept

Throughout any period of special accounting declared for New South

Wales or Victoria, separate accounts must be kept by the Authority of:

(a)

all water diverted from the upper River Murray by the State;

(b) the difference between -

(i)

the sum of all water entering the Upper River Murray

downstream of Doctors Point from -

� any tributary within that State other than the River

Darling, and

� any artificial outfall from that State approved by

the Ministerial Council for the purposes of

clause 108; and

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(ii) any water allocated to that State which flows to South

Australia in excess of South Australias entitlement

under clause 88 or 90.

If (ii) exceeds (i), the account kept under this paragraph must

be set at zero;

(c)

all water allocated to that State which is supplied by it to

meet South Australias entitlement under paragraph 88(a).

126. Imbalance in Use

The imbalance in use between either New South Wales or Victoria and

South Australia in a period of special accounting is to be calculated as

follows:

One-third of the amount calculated under paragraph 125(a)

less:

One-third of the amount calculated under paragraph 125(b)

less:

Two-thirds of the amount calculated under paragraph 125(c).

127. Limits on Imbalance in Use

On May 31 in any period of special accounting, the accounts kept under

clause 125 must be adjusted by the Authority to ensure that the imbalance

in use calculated under clause 126 is:

(a)

less than one-third; and

(b) greater than minus two-thirds,

of the difference between 1,250,000 megalitres and the reserve allocated

to New South Wales or Victoria, as the case may require.

128. Restrictions on South Australia's Entitlement

(1)

In a period of special accounting, instead of the amounts set out in

paragraph 88(a), South Australia is entitled to receive, before the

end of the following May, the lesser of:

(a)

the sum of the monthly quantities set out in paragraph 88(a);

and

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134 Water Amendment Bill 2008 No. , 2008

(b) the sum of -

(i)

one-third of the available water determined under

paragraph 102(c); and

(ii) any imbalance in use calculated under clause 126.

(2)

South Australia may decide how to apportion any entitlement

under sub-clause 128(1) between each month provided that the

quantity in any month must not exceed that specified in paragraph

88(a).

129. Termination of Periods of Special Accounting

The Authority must terminate a period of special accounting declared for

New South Wales or Victoria whenever it is satisfied that the reserve

allocated to that State at the end of the following May will be greater than

1,250,000 megalitres.

SUBDIVISION F -- ACCOUNTING FOR SOUTH AUSTRALIA'S

STORAGE RIGHT

130. Accounting for South Australia's Storage Rights

(1)

The Authority must, as soon as practicable after this Agreement

comes into effect, prepare a draft Schedule to this Agreement in

accordance with this clause.

(2)

The Authority must provide the draft Schedule to the Committee.

(3)

After considering the draft Schedule, the Committee must submit

the draft Schedule and the Committees advice in relation to it, to

the Ministerial Council.

(4)

After receiving the draft Schedule and the advice of the

Committee, the Ministerial Council may:

(a)

approve the Schedule with or without amendment; or

(b) refer the draft Schedule back to the Authority for further

consideration.

(5)

When the Schedule is approved by the Ministerial Council under

paragraph (4)(a) it:

(a)

becomes part of the Agreement; and

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(b) takes effect as provided for in sub-clause 5(2).

(6)

The Schedule made for the purposes of this clause must:

(a)

set out rules for giving effect to and accounting for South

Australias storage rights under clause 91; and

(b) define what constitutes an effect on water availability and

storage access for the purposes of clause 91.

(7)

Without limiting sub-clause (6), the Schedule made for the

purposes of this clause must contain such rules as may be required

to ensure:

(a)

that South Australia can exercise its storage right for the

purposes of meeting critical human water needs pursuant to

sub-clause 91(1) in a manner that does not affect the water

availability for New South Wales or Victoria that would

have existed under this Agreement had it not been for the

exercise by South Australia of its rights under that clause;

and

(b) that South Australia can exercise its storage right for the

purpose of private carry-over pursuant to sub-clause 91(2) in

a manner that does not affect the water availability or storage

access for New South Wales or Victoria that would have

existed under this Agreement had it not been for the exercise

by South Australia of its rights under that clause; and

(c)

that, wherever possible, water stored pursuant to clause 91

that is spilled from a storage, is re-regulated for subsequent

use by South Australia; and

(d) that, subject to paragraphs (a) and (b), each State is able to

carry over a volume of water equivalent to 150% of its

annual critical human needs requirements (eighteen months

supply); and

(e)

that South Australia bears only incremental evaporative

losses in respect of its stored entitlement.

(8)

A rule referred to in sub-clause (7) may have the effect of adding

to, derogating from or otherwise altering any provision of this

Division.

(9)

The Ministerial Council may at any time as it sees fit request the

Authority to prepare a draft amendment.

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136 Water Amendment Bill 2008 No. , 2008

(10) Sub-clauses (2), (3), (4) and (5) apply to a draft amendment as if it

were a draft Schedule.

(11) The Authority must keep separate accounts in respect of the

application of rules set out under the Schedule made for the

purposes of this clause, including an account that maintains a

continuous record of the water that is stored, spilled, debited for

evaporation, and delivered to South Australia in accordance with

the Schedule.

DIVISION 2 -- TIER 2 DISTRIBUTION OF WATERS TO

ENSURE CRITICAL HUMAN WATER NEEDS

131. Application of Division 2

(1)

This Division applies:

(a)

in the circumstances specified in the Basin Plan; and

(b) in a period before the Basin Plan first takes effect, if the

Ministerial Council declares in accordance with sub-clause

(3) that this Division applies; and

(c)

from the time this Agreement comes into effect.

(2)

Once this Division has commenced application in accordance with

sub-clause (1), it will cease to apply:

(a)

once the conditions specified in the Basin Plan are satisfied;

(b) in the period before the Basin Plan first takes effect, at a

time declared by the Ministerial Council.

(3)

The Ministerial Council may declare that this Division applies

during a period before the Basin Plan first takes effect if the

Ministerial Council is satisfied that during that period, the

provisions of Division 1 of this Part will not or are not likely to

ensure that there will be enough water to meet conveyance water

needs.

132. Distribution of Waters Subject to Schedule and Determinations of

Ministerial Council

While this Division applies, the provisions of:

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(a)

Division 1 of this Part; and

(b) Part XIV of this Agreement and Schedule F,

apply subject to:

(c)

the provisions of the Schedule made under clause 135, and

any determination of the Ministerial Council made in

accordance with that Schedule; or

(d) during the period before the Schedule is made under

clause 135 and before the Basin Plan first takes effect, any

agreement by First Ministers of the Contracting

Governments.

DIVISION 3 -- TIER 3 DISTRIBUTION OF WATERS IN

EXTREME OR UNPRECEDENTED CIRCUMSTANCES

133. Application of Division 3

(1)

This Division applies:

(a)

in the circumstances specified in the Basin Plan; and

(b) in a period before the Basin Plan first takes effect, if the

Ministerial Council declares in accordance with sub-clause

(3) that this Division applies.

(2)

Once this Division has commenced application in accordance with

sub-clause (1), it will cease to apply:

(a)

once the conditions specified in the Basin Plan are satisfied;

(b) in the period before the Basin Plan first takes effect, at a

time declared by the Ministerial Council.

(3)

The Ministerial Council may declare that this Division applies

during a period before the Basin Plan is adopted, but may only do

so if satisfied that during that period, any one or more of the

following applies:

(a)

there are extreme and unprecedented low levels of water

availability; or

(b) there is extreme and unprecedented poor water quality in the

water available to meet critical human water needs; or

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138 Water Amendment Bill 2008 No. , 2008

(c)

there is an extremely high risk that water will not be

available to meet critical human water needs during the next

12 months.

134. Distribution of Waters Subject to Schedule and Determinations of

Ministerial Council1

(1)

While this Division applies, the provisions of Division 1 of this

Part, and of Part XIV and Schedule F of this Agreement, apply

subject to:

(a)

the Schedule made under clause 135; and

(b) any determination of the Ministerial Council made in

accordance with this clause.

(2)

For the purposes of this Division, the Ministerial Council may

make determinations about the way in which State water

entitlements will be determined, delivered and accounted for.

(3)

The Ministerial Council:

(a)

may determine that any provision of --

(i)

Division 1 of this Part; or

(ii) Part XIV or Schedule F of this Agreement; or

(iii) the Schedule made under clause 135,

applies, or does not apply, or applies to a specified extent or

in specified circumstances; or

(b) may make a determination about any matter the subject of a

provision referred to in paragraph (a) that is additional to,

substituted for or contrary to any such provision.

DIVISION 4 -- SCHEDULE FOR WATER SHARING

135. Schedule for Water Sharing

(1)

The Authority must, as soon as practicable after this Agreement

comes into effect, prepare a draft Schedule to this Agreement in

accordance with this clause.

(2)

The Authority must provide the draft Schedule to the Committee.

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(3)

After considering the draft Schedule, the Committee must submit

the draft Schedule and the Committees advice in relation to it, to

the Ministerial Council.

(4)

After receiving the draft Schedule and the advice of the

Committee, the Ministerial Council may:

(a)

approve the Schedule with or without amendment; or

(b) refer the draft Schedule back to the Authority for further

consideration.

(5)

When the Schedule is approved by the Ministerial Council under

paragraph (4)(a) it:

(a)

becomes part of the Agreement; and

(b) takes effect as provided for in sub-clause 5(2).

(6)

The Schedule made for the purposes of this clause must:

(a)

set out the way in which State water entitlements will be

determined, delivered and accounted for; and

(b) provide for South Australias storage right under

sub-clause 91(1),

during a period in which either Division 2 or Division 3 of this Part

applies.

(7)

Without limiting other provisions of this clause, the Schedule made

for the purposes of this clause may provide that:

(a)

any provision of --

(i)

Division 1 of this Part; or

(ii) Part XIV or Schedule F of this Agreement,

does not apply, or applies to a specified extent or in

specified circumstances; or

(b) any provision referred to in paragraph (a) may be determined

by the Ministerial Council to apply, or to apply to a specified

extent or in specified circumstances; or

(c)

the Ministerial Council:

(i)

must exercise a discretion provided in Division 1 of

this Part in a specified way or at a specified time; or

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140 Water Amendment Bill 2008 No. , 2008

(ii) may make a determination about any matter the

subject of a provision of Division 1 of this Part or

Part XIV or Schedule F of this Agreement that is

additional to, substituted for or contrary to any such

provision.

(8)

The Schedule made for the purpose of this clause must be prepared

on the basis of the fact that the Contracting Governments have

agreed:

(a)

that critical human water needs are the highest priority water

use for communities who are dependent on Basin water

resources;

(b) in particular that, to give effect to this priority in the upper

River Murray, the upper River Murray storages and the

River Murray in South Australia (the system), water

(conveyance water) in the system required to deliver water

to meet critical human water needs will receive first priority

from the water available in the system;

(c)

that each State Contracting Government will be responsible

for meeting critical human water needs in its State, and will

decide how water from its entitlement is used.

(9)

After the Basin Plan takes effect, the Schedule made for the

purposes of this clause, and any amendment to it, must be prepared

having regard to the provisions of the Basin Plan, and in particular,

to such of those provisions that are required by Part 2A of the

Water Act.

(10) If the Schedule required by this clause has not been made at the

time the Basin Plan first takes effect, then those provisions of the

Basin Plan required by Part 2A of the Water Act are taken to be the

Schedule for the purposes of this Division until the Schedule is

made by the Ministerial Council in accordance with this clause.

(11) The Ministerial Council must review the Schedule made for the

purposes of this clause:

(a)

from time to time; and

(b) at least once in respect of each period in which Division 3 of

this Part applies.

(12) The Ministerial Council may, at any time as it sees fit, request the

Authority to prepare a draft amendment.

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(13) Sub-clauses (2), (3), (4) and (5) apply to a draft amendment as if it

were a draft Schedule.

PART XIII - MENINDEE LAKES STORAGE

136. Maintenance of Menindee Lakes Storage

New South Wales must maintain the Menindee Lakes Storage and

associated works in the good order and condition necessary to meet the

full supply levels and storage capacities referred to in clause 137.

137. Full Supply Levels

For the purposes of this Agreement, and unless otherwise agreed between

New South Wales and the Authority by the exchange of letters between

them, the full supply levels of the Menindee Lakes Storage will be:

Lake Wetherell - Elevation 61.7 Australian Height Datum

Lake Pamamaroo - Elevation 60.4 Australian Height Datum

Lake Menindee - Elevation 59.8 Australian Height Datum

Lake Cawndilla - Elevation 59.8 Australian Height Datum

corresponding to a total storage capacity of approximately 1 680 000

megalitres.

138. Financial Contributions of Authority

Each year the Authority must pay New South Wales:

(a)

$320,000 in equal instalments at the end of each quarter; and

(b) three quarters of the costs of operating and maintaining the

Menindee Lakes storage,

or such other amounts as may be specified in the approved corporate

plan, from time to time.

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PART XIV - EFFECT OF SNOWY SCHEME

139. Effect of Snowy Scheme

Subject to Divisions 2 and 3 of Part XII, the Authority must determine

the respective allocations to New South Wales and Victoria of water

made available from the Snowy Scheme for the purposes of this

Agreement, in the manner set out in Schedule F.

PART XV - MISCELLANEOUS

140. Resolution of Disputes

(1)

If the Committee fails to agree on any motion submitted by a

Committee member within two months, that Committee member

may refer the matter to the Ministerial Council.

(2)

If the Ministerial Council fails to resolve the matter within six

months, any member may refer it to an arbitrator.

(3)

When a matter is referred to an arbitrator, any Contracting

Government may give the other Contracting Governments written

notice to agree to appoint an arbitrator to decide the matter.

(4)

If an arbitrator is not appointed within two months of notice being

given, the Chief Justice of the Supreme Court of Tasmania, or the

person acting in that office, may appoint an arbitrator at the request

of the Contracting Government giving notice under sub-clause (3).

(5)

The decision of any arbitrator appointed under this clause:

(a)

is deemed to be the decision of the Committee; and

(b) binds the Committee, the Ministerial Council and the

Contracting Governments.

(6)

This clause does not apply to a resolution:

(a)

on a question of law; or

(b) which has been decided by a majority vote of the Committee

pursuant to a provision of this Agreement.

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141. Resolution of operational management and delivery inconsistencies

(1)

If the Authority or the Committee is of the opinion that there are

operational management and delivery inconsistencies between the

application of the Basin Plan and any States management and

delivery of State water entitlements or of entitlements to water

exercised within its territory, the Committee must consider and

seek to resolve the matter in accordance with this clause.

(2)

If the Committee is unable to resolve a matter before it under this

clause that is of strategic significance (including a matter that is of

strategic significance because it relates to State water entitlements),

the Committee may request the Ministerial Council to make a

strategic direction in relation to the matter.

(3)

A request made by the Committee under sub-clause (2) must be

accompanied by a statement that outlines the strategic significance

of the relevant matter and details the question or questions on

which the Committee seeks direction.

142. Proposals to Amend Agreement

(1)

The Authority must review this Agreement:

(a)

within twelve months of the Basin Plan first taking effect;

and

(b) at any other time, as it thinks fit,

and may, as a result of such a review, recommend to the

Ministerial Council any amendments it thinks necessary or

desirable.

(2)

The Authority must consult the Committee when carrying out a

review under sub-clause (1).

143. Giving Information to the Authority

Each Contracting Government must give all the information it can to the

Authority for the purposes of this Agreement, whenever the Authority

requests it.

144. Authorities to Observe Agreement

Each Contracting Government must ensure that any public authority

which exercises functions under this Agreement, observes its provisions.

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144 Water Amendment Bill 2008 No. , 2008

PART XVI -- INDEMNITIES IN RESPECT OF COMMITTEE AND

AUTHORITY

145. Indemnity in Respect of Payments Made by Commonwealth

(1)

Subject to sub-clauses 37(2) and 38(2), any payment made by the

Commonwealth of Australia in respect of losses or costs incurred

by it arising:

(a)

from any act or omission of the Authority in the bona fide

execution of the powers vested in the Authority by or under

this Agreement;

(b) because of the operation of section 239F of the Water Act;

(c)

because of the operation of either of sections 239J or 239K

of the Water Act in respect of proceedings relating to the

Commission or a person who was appointed as a President

or Deputy President; or

(d) because of an indemnity in either of items 7(1) or 7(3) of

Schedule 3 to the Water Amendment Act 2008

(Commonwealth),

must be borne by the Contracting Governments in equal shares.

(2)

Sub-clause (1) does not apply to a payment made by the

Commonwealth of Australia under paragraph (1)(a) in its capacity

as a Contracting Government under this Agreement.

(3)

In this clause, the terms "President" and "Deputy President" have

the same meanings as under the former Agreement.

Note -- Section 174 of the Water Act provides that financial liabilities of the Authority are taken

to be liabilities of the Commonwealth.

146. Indemnity in Respect of Payments Relating to Former

Commissioners

(1)

Any payment made by the Commonwealth of Australia in respect

of:

(a)

a liability arising because of the operation of either of

sections 239J or 239K of the Water Act in respect of

proceedings relating to a person who was appointed as a

Commissioner or Deputy Commissioner; or

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(b) losses or costs incurred by it because of the indemnity in

item 7(2) of Schedule 3 to the Water Amendment Act 2008

(Commonwealth),

must be borne by the Contracting Government which had

appointed that Commissioner or Deputy Commissioner.

(2)

In this clause, the terms "Commissioner" and "Deputy

Commissioner" have the same meanings as under the former

Agreement.

147. Commonwealth to consult other Contracting Governments

(1)

Upon receiving notice of a claim to which either of clauses 145 or

146 may apply, the Commonwealth must give written notice of the

claim to each State Contracting Government or Governments

which may be liable, because of the operation of either of those

clauses, to bear any part of a payment made in respect of that

claim.

(2)

Before settling a claim to which sub-clause (1) refers, the

Commonwealth must obtain the agreement of the State Contracting

Government or Governments which will be liable to bear any part

of a payment made in respect of that settlement because of the

operation of either of clauses 145 or 146.

148. Liability for Acts of Committee Members

Each Contracting Government must indemnify each Committee member

appointed for or by that Contracting Government in respect of any act or

omission of that Committee member and for any losses or costs incurred

by that Committee member, in the bona fide execution of the powers

vested in the Committee by or under this Agreement.

PART XVII - TRANSITIONAL PROVISIONS AND REVIEW OF

SCHEDULES, RESOLUTIONS AND ACTIVITIES

149. Definitions

In this Part:

"commencing day" means the day on which this Agreement comes into

effect;

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146 Water Amendment Bill 2008 No. , 2008

"current financial year" means the financial year during which this

Agreement comes into effect;

"next financial year" means the financial year following the current

financial year;

"transitional provisions" means transitional provisions contained in this

Agreement and transitional provisions contained in or made under the

Water Act that relate to the former Agreement.

150. Transitional Provisions

(1)

Acts or things consistent with this Agreement done by or on behalf

of a Contracting Government or the Authority, the Committee or

the Commission in anticipation of this Agreement are deemed to

have been done under and in accordance with its provisions.

(2)

Without limiting the generality of sub-clause (2):

(a)

any estimates for the current financial year sent by the

Commission to the Contracting Governments before the

commencing day are deemed to be estimates sent by the

Authority in respect of that year;

(b) any moneys paid by a Contracting Government to the

Commission before the commencing day are deemed to have

been paid to the Authority under clause 75 for the current

financial year;

(c)

any moneys spent by the Commission before the

commencing day in accordance with estimates referred to in

paragraph (a) are deemed to have been spent pursuant to the

Agreement for the current financial year;

(d) if the commencing day falls between 31 March and 30 June

in any year, any estimates sent by the Commission to the

Contracting Governments before that day for the next

financial year are deemed to be estimates sent by the

Authority for that next financial year.

(3)

Money of a kind referred to in clause 83 paid by a Contracting

Government to the Commission in the current financial year is

deemed to have been paid under that clause.

(4)

At the commencing day, the shares of the control of the transitional

RMO assets will be retained by the Commonwealth, South

Australia, New South Wales and Victoria, in the following shares:

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Water Amendment Bill 2008 No. , 2008 147

Commonwealth

20%

South Australia

26.67%

New South Wales

26.67%

Victoria

26.67%

(5)

The shares referred to in sub-clause (4) may be altered by the asset

agreement.

151. Review of resolutions, directions, procedures and measures and other

activities

(1)

As soon as practicable after the commencing day and before the

Basin Plan first takes effect, the Ministerial Council is to undertake

a review of:

(a)

resolutions of the former Ministerial Council that continue to

have effect by virtue of the transitional provisions; and

(b) such of the resolutions, directions or procedures of the

Commission that continue to have effect, by virtue of the

transitional provisions, as if they were resolutions of the

Ministerial Council under this Agreement.

(2)

As soon as practicable after the commencing day and before the

Basin Plan first takes effect, the Authority is to undertake a review

of such of the resolutions, directions, procedures, measures and

other activities of the Commission that continue to have effect by

virtue of the transitional provisions as if they were resolutions,

directions, procedures, measures and other activities of the

Authority under this Agreement.

152. Review of Schedules

(1)

Without limiting clause 142 the Authority must, in consultation

with the Committee and before the Basin Plan first takes effect,

review the operation of:

(a)

each of Schedules B, D, E and F of this Agreement; and

(b) the Schedules made under clauses 130 and 135 of this

Agreement,

to assess the extent to which each Schedule is consistent with the

proposed Basin Plan.

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SCHEDULE B - BASIN SALINITY MANAGEMENT

PART I -- PRELIMINARY

Purpose

The purpose of this Schedule is to implement certain aspects of the Basin

Salinity Management Strategy 2001-2015, or any subsequent strategy

approved by the Ministerial Council to manage salinity:

(a)

by promoting joint works, measures and other action to

reduce or limit the rate at which salinity increases within the

Murray-Darling Basin;

(b) by providing for the adoption of salinity targets;

(c)

by establishing Registers to record salinity impacts and to

allocate salinity credits and salinity debits to Contracting

Governments; and

(d) by providing for monitoring, assessing, auditing and

reporting on matters set out in this Schedule and on progress

in implementing the Strategy.

Definitions

(1)

In this Schedule, unless the contrary intention appears:

(a)

"Accountable Action" means an action that:

(i)

is undertaken after a relevant Baseline Date; and

(ii) the Authority has decided will have a Significant

Effect under paragraph 18(1)(b); and

(iii) the Authority has entered in a Register.

"action" means:

(i)

any work or measure; and

(ii) any alteration to, or cessation of, any work or

measure,

relevant to the purposes of this Schedule.

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154 Water Amendment Bill 2008 No. , 2008

"average salinity" means the average daily salinity of the

River Murray calculated in accordance with protocols made

by the Authority under clause 40;

"average salinity costs" means the average costs to users of

water from the upper River Murray and the River Murray in

South Australia incurred because of the salinity of the water

used, as calculated in accordance with protocols made by the

Authority under clause 40;

"Baseline Conditions" means the baseline conditions

approved for the purposes of clause 5 of the former

Schedule, or amended by the Authority in accordance with

clause 5 of this Schedule;

"Baseline Date" means:

(i)

with respect to New South Wales, Victoria and South

Australia -- 1 January 1988; and

(ii) with respect to Queensland and the Australian Capital

Territory -- 1 January 2000;

"Basin Salinity Target" means the target referred to in

clause 7;

"Benchmark Period" means the period from 1 May 1975 to

30 April 2000, or such other period as the Authority may

from time to time determine;

"Delayed salinity impact" means a salinity impact which

occurs after 1 January 2000, but which:

(i)

in the case of New South Wales, Victoria or South

Australia, is attributable to an action taken or decision

made in that State before 1 January 1988; and

(ii) in the case of Queensland or the Australian Capital

Territory, is attributable to an action taken or decision

made in that State before 1 January 2000;

"End-of-Valley Target" means a target set out in Appendix

1 as amended from time to time by the Ministerial Council

under clause 9 and includes a reference to the site at which

the degree to which the relevant Government achieves that

target is to be measured;

"Former salinity and drainage work" means any work or

measure entered on the Register maintained under the

Salinity and Drainage Strategy, immediately before this

Schedule took effect;

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Water Amendment Bill 2008 No. , 2008 155

"former Schedule" means Schedule C of the former

Agreement;

"Joint work or measure" means a work or measure

authorised under clause 56 of the Agreement for the

purposes of this Schedule;

"Joint Program" means the program of Joint works or

measures referred to in sub-clause 10(1);

"Program of actions" means a Program of actions referred

to in clause 6;

"Proposal" means any proposal relevant to the

subject-matter of this Schedule, for any action.

"Register A" means the register referred to in

sub-clauses 15(1), (2) and (3);

"Register B" means the register referred to in

sub-clauses 15(1), (2) and (4);

"Salinity and Drainage Strategy" means Schedule C of the

former Agreement immediately prior to the amendment of

the former Agreement by replacing that Schedule with the

former Schedule;

"salinity cost effect" means a change in average salinity

costs resulting from an action, as calculated by the

Authority;

"salinity credit" means the reduction in average salinity

costs estimated by the Authority in accordance with

clause 20;

"salinity debit" means an increase in average salinity costs

estimated by the Authority in accordance with clause 20;

"salinity effect" means a change in the average salinity at

Morgan resulting from any action, as estimated by the

Authority;

"salinity impact" means both the salinity effect and the

salinity cost effect;

"Significant Effect" has the meaning set out in

sub-clause 18(3);

"State Action" means any Accountable Action that is not a

Joint work or measure;

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156 Water Amendment Bill 2008 No. , 2008

"Strategy" means the Basin Salinity Management Strategy

2001-2015 as adopted and amended by the Ministerial

Council from time to time;

"undertake", in relation to:

(i)

a work, includes investigating, designing,

constructing, operating and maintaining that work;

and

(ii) a measure, includes investigating, developing and

implementing that measure;

"valley" means a valley or other geographic area specified in

the first column of Appendix 1.

(b) a reference to a Part, clause, sub-clause, paragraph, or

Appendix is a reference to a Part, clause, sub-clause,

paragraph or Appendix of this Schedule.

(2)

When a Contracting Government informs the Authority of a

Proposal under sub-clause 17(1), it must be taken also to have

informed the Authority under paragraph 49(1)(a) of the

Agreement.

Application to Queensland and Australian Capital Territory

(1)

Subject to sub-clause 3(2), the whole of this Schedule applies to

Queensland and the Australian Capital Territory.

(2)

If a provision of this Schedule states that it:

(a)

does not apply to Queensland or the Australian Capital

Territory; or

(b) applies to Queensland or the Australian Capital Territory

only in part, or subject to specified conditions,

that provision takes effect according to its terms.

(3)

Unless otherwise indicated, a reference to a State Contracting

Government includes a reference to the Government of the State of

Queensland and the Government of the Australian Capital

Territory.

(4)

The Governments of the State of Queensland and the Australian

Capital Territory will share equally with other Contracting

Governments such investigations, construction and administration

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Water Amendment Bill 2008 No. , 2008 157

costs, as defined in clause 71 of the Agreement, as are attributable

to implementing this Schedule, except:

(a)

where the Committee determines otherwise, under

sub-clause 72(1) of the Agreement; or

(b) to the extent that this Schedule provides otherwise in

clauses 13 and 48; or

(c)

for such of those costs that are referred to in paragraphs (a),

(f) and (j) of the definition of "investigations, construction

and administration costs" in clause 71 of the Agreement; or

(d) where the cost is attributable to a matter set out in

sub-clause 37(4) of the Agreement.

PART II -- ACCOUNTABILITY FOR SALINITY IMPACTS

Accountability for Salinity Impacts

(1)

A Contracting Government must not, and must ensure that any

public authority responsible to it does not undertake, alter or cease,

or permit the undertaking, alteration or cessation of, any action that

may have a Significant Effect except in accordance with this

Schedule.

(2)

Each State Contracting Government must undertake actions in

accordance with this Schedule necessary to meet that

Governments End-of-Valley Targets.

Determining Baseline Conditions

(1)

This clause establishes the process for determining the baseline

conditions contributing to the movement of salt through land and

water upstream of:

(a)

an End-of-Valley Target site determined under this clause;

and

(b) the Basin Salinity Target site at Morgan,

but does not refer to the baseline conditions defined in clause 2 of

Schedule E of the Agreement.

(2)

The estimated baseline conditions relating to the salinity, salt load

and flow regime --

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158 Water Amendment Bill 2008 No. , 2008

(a)

at the Basin Salinity Target site at Morgan as at 1 January

2000; and

(b) at each site at which each State Contracting Government

proposes to measure that Governments compliance with an

End-of-Valley Target (if adopted) for the portion of the

Murray-Darling Basin within that State, as at 1 January

2000,

are those approved --

(c)

under clause 5 of the former Schedule; or

(d) by the Authority in accordance with this clause.

(3)

The Australian Capital Territory must, as soon as practicable,

prepare and give to the Authority estimated baseline conditions

relating to the salinity, salt load and flow regime at each site at

which it proposes to measure that Governments compliance with

an End-of-Valley Target (if adopted) for the portion of the

Murray-Darling Basin within that State, as at 1 January 2000.

(4)

Sub-clauses 5(6), (7) and (8) apply to estimated baseline conditions

prepared by the Australian Capital Territory under sub-clause 5(3)

as if they were an amendment proposed under sub-clause 5(5).

(5)

A State Contracting Government or the Authority (as the case

requires) may, from time to time, propose an amendment to any

estimate of a baseline condition, using the best information

available to the State Contracting Government or the Authority at

the time the amendment is proposed.

(6)

The Authority must appoint an appropriately qua lified panel,

which shall include at least one representative from each State

Contracting Government, to review and advise the Authority about

any proposed amendment to any estimate of baseline conditions

made by a State Contracting Government or the Authority.

(7)

After considering the advice of the panel, the Authority may:

(a)

approve a proposed amendment; or

(b) approve that proposed amendment, subject to the relevant

Government modifying it in any way agreed between the

Authority and the relevant Government; or

(c)

refuse to approve the proposed amendment.

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(8)

Within 6 months after the Authority and the relevant Government

agree on a modification under paragraph 5(7)(b), the relevant

Government must:

(a)

modify the estimate in accordance with that agreement; and

(b) give the Authority a copy of the modified estimate.

(9)

An estimate of baseline conditions, in the form initially given to

the Authority, may be used temporarily for the purposes of this

Schedule until the relevant Government has complied with

sub-clause 5(8).

Meeting End-of-Valley Targets

(1)

Each State Contracting Government must, by 31 March 2004 and

thereafter at intervals of not more than 5 years, give the Authority

its proposed Program of actions to meet End-of-Valley Targets

adopted for that State.

(2)

A proposed Program of actions must include the following

information about the salinity, salt load and, where relevant, the

flow regime at each site at which compliance with an

End-of-Valley Target is to be measured:

(a)

the Baseline Conditions; and

(b) the Governments estimate of Delayed salinity impacts in

each of 2015, 2050 and 2100 if no action were taken to

reduce or limit such salinity impacts; and

(c)

the relevant End-of-Valley Target; and

(d) the predicted effect of implementing the proposed Program

of actions in each of 2015, 2050 and 2100.

(3)

The Authority must estimate (using the best information available

to the Authority at the time the estimate is made) whether a

proposed Program of actions, if undertaken in accordance with its

terms, is reasonably certain to meet each End-of-Valley Target for

the relevant State.

(4)

A State Contracting Government must give the Authority sufficient

information about its proposed Program of actions:

(a)

to enable the Authority to make the estimate referred to in

sub-clause 6(3); and

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160 Water Amendment Bill 2008 No. , 2008

(b) in sufficient time to allow the Authority, having made that

estimate, to make representations to that Contracting

Government before the Contracting Government decides

whether to proceed with the proposed Program of actions.

(5)

A State Contracting Government may, from time to time, propose

an amendment to a Program of actions to meet End-of-Valley

Targets adopted for that State

(6)

Sub-clauses 6(3) and (4) apply to any amendment proposed under

sub-clause 6(6) as if it were a Program of actions referred to in

sub-clause 6(1).

(7)

A State Contracting Government must prepare reports about

undertaking a Program of actions, as set out in clause 30.

PART III -- SALINITY TARGETS

Basin Salinity Target

(1)

The Basin Salinity Target is to maintain the average daily salinity

at Morgan at a simulated level of less than 800 E.C. for at least

95% of the time, during the Benchmark Period.

(2)

Achievement of the Basin Salinity Target must be assessed by the

Authority from time to time, using one or more of the models

developed under clause 36, adapted to simulate the land and water

management conditions at the time the assessment is made.

End-of-Valley Targets for the Australian Capital Territory

(1)

The Australian Capital Territory must, as soon as practicable,

nominate to the Authority an End-of-Valley Target for each valley

within the State designated as requiring such a target in Appendix

(2)

The Authority must refer each nominated End-of-Valley Target to

the Ministerial Council, together with:

(a)

the Authoritys estimate of the likely effects of meeting the

nominated target on:

(i)

significant environmental, economic, social and other

characteristics in the upper River Murray and the

River Murray in South Australia; and

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(ii) meeting the Basin Target;

(b) the Authoritys advice about whether the nominated target is

contributing adequately to achieving the objectives of the

Strategy; and

(c)

the Authoritys opinion on what, if any, additional works or

measures are necessary, desirable or convenient to meet the

Basin Target.

(3)

The Ministerial Council:

(a)

after considering the matters referred to it by the Authority,

may adopt an End-of-Valley Target; and

(b) must resolve to amend Appendix 1 to include any target

which it adopts.

Reviewing and amending End-of-Valley Targets

(1)

The Authority must, at intervals of not more than 5 years, review

the adequacy and appropriateness of each End-of-Valley Target.

(2)

The Authority, or the relevant State Contracting Government

which nominated an End-of-Valley Target, may request the

Ministerial Council to amend that target.

(3)

Where a State Contracting Government requests the Ministerial

Council to amend an End-of-Valley Target, the Authority must

consult that Government and the Committee before the Authority

makes any recommendation under sub-clause 9(4).

(4)

The Authority must recommend to the Ministerial Council whether

or not the Ministerial Council should adopt a request made under

sub-clause 9(2).

(5)

In any recommendation made under sub-clause 9(4), the Authority

must set out:

(a)

the Authoritys estimate of the likely effects of meeting the

nominated target on:

(i)

significant environmental, economic, social and other

characteristics in the upper River Murray and the

River Murray in South Australia; and

(ii) meeting the Basin Salinity Target;

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162 Water Amendment Bill 2008 No. , 2008

(b) the Authoritys advice about whether the nominated target is

contributing adequately to achieving the objectives of the

Strategy;

(c)

the Authoritys opinion on what, if any, additional works or

measures are necessary, desirable or convenient to meet the

Basin Salinity Target; and

(d) any new information about any of those matters which has

become available to the Authority, since the relevant

End-of-Valley Target was adopted by the Ministerial

Council, including information that has become available to

the Authority due to the discharge of functions and exercise

of powers under the Water Act.

(6)

The Ministerial Council:

(a)

may, after considering the matters set out in any

recommendation made to it by the Authority, amend an

End-of-Valley Target; and

(b) must resolve to amend Appendix 1 to include any amended

End-of-Valley Target.

PART IV -- JOINT WORKS AND MEASURES

10. Joint program

(1)

Subject to Part VIII of the Agreement, the Contracting

Governments must implement a Joint Program of Joint works and

measures under this Schedule:

(a)

to maintain the quality of the upper River Murray and the

River Murray in South Australia for agricultural,

environmental, urban, industrial and recreational uses; and

(b) which is sufficient to have the cumulative effect of offsetting

predicted future increases in average daily salinity at

Morgan, arising from Accountable Actions and Delayed

salinity impacts, by 61 E.C. (or by such other figure

determined by the Ministerial Council from time to time)

before 31 December 2007.

(2)

Subject to Part VIII of the Agreement, after 31 December 2007, the

Ministerial Council must authorise, and the Contracting

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Governments must undertake, any further Joint works or measures

that the Ministerial Council decides are necessary, desirable or

convenient to maintain salinity at or below the Basin Salinity

Target.

(3)

The Authority must enter any Joint work or measure undertaken

under this clause on a Register as an Accountable Action, in

accordance with Part V.

11. Attribution of salinity credits or salinity debits for Joint works or

measures

Subject to clause 13, unless the Ministerial Council decides otherwise,

any salinity credits or salinity debits arising from any Joint work or

measure undertaken under clause 10 will be attributed to a Contracting

Government to offset salinity debits due to:

(a)

Accountable Actions entered on Register A; and

(b) Delayed salinity impacts entered on Register B,

according to the following formula:

Register A

(a) New South Wales 16.39%

(b) South Australia 16.39%

Register B

(a) New South Wales 8.61%

(b) South Australia 8.61%

(d) Commonwealth 25.00%

12. Authorised Joint works and measures

(1)

The Ministerial Council must:

(a)

set out in Appendix 2 a list of Joint works and measures

authorised for the purposes of each of the former Schedule

(as it existed immediately before this Schedule commenced)

and this Schedule; and

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164 Water Amendment Bill 2008 No. , 2008

(b) amend Appendix 2 whenever a new Joint work or measure is

authorised.

(2)

Any work or measure from time to time included in Appendix 2

must be taken:

(a)

to have been authorised under clause 56 of the Agreement;

and

(b) to have been declared effective under clause 64 of the

Agreement; and

(c)

to be a Joint work or measure for the purposes of this

Schedule.

(3)

If a Joint work or measure included in Appendix 2 was completed

before the former Schedule came into force, it is a Former salinity

and drainage work for the purposes of this Schedule.

(4)

The Authority may, in accordance with the asset management plan

approved under clause 53 of the Agreement, declare the whole or

part of any Joint works or measures to be ineffective, pursuant to

sub-clause 70(1) of the Agreement.

(5)

The Ministerial Council may, upon the recommendation of the

Committee:

(a)

declare that any Joint works or measures must be treated as a

State Action, in whole or in part; and

(b) amend Appendix 2 to the extent necessary to implement any

declaration made under sub-clause 12(4) or paragraph

12(5)(a).

13. Participation by Queensland and Australian Capital Territory

(1)

Subject to sub-clause 13(2), the Government of Queensland or the

Australian Capital Territory (as the case requires) is not required to

contribute to the costs of, nor will salinity credits or salinity debits

be attributed to that Government in relation to:

(a)

any joint work or measure undertaken under the Joint

Program; or

(b) any Former salinity and drainage work.

(2)

The Committee may determine whether, and if so what:

(a)

costs; or

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(b) salinity credits or salinity debits,

relating to a Joint work or measure undertaken after 1 January

2008 must be contributed by, or will be attributed to, the

Government of Queensland or the Australian Capital Territory; and

(c)

consequential adjustment may be necessary to the formula

set out in clause 11.

14. Co-ordinating Joint Works and Measures

The Authority must co-ordinate the activities of each State Contracting

Government and its relevant Constructing Authority in undertaking a

Joint work or measure.

PART V -- THE REGISTERS

15. Establishing the Registers

(1)

are continued in existence in the form in which they were held, and

containing the information they contained, immediately prior to

commencement of this Schedule.

(2)

The Authority must maintain Register A and Register B in

accordance with this Schedule and any protocols made by the

Authority under clause 40.

(3)

The Authority must include the following matters on Register A:

(a)

all Former salinity and drainage works; and

(b) except as provided in paragraph 15(4)(b), any action

undertaken after a relevant Baseline Date that the Authority

has declared has had, or may have, a Significant Effect.

(4)

The Authority must include the following matters on Register B:

(a)

every Delayed salinity impact which the Authority considers

may have a Significant Effect; and

(b) any action undertaken under this Schedule, expressly for the

purpose of off-setting a Delayed salinity impact which the

Authority determines may otherwise occur, in accordance

with any protocols made by the Authority under clause 40.

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166 Water Amendment Bill 2008 No. , 2008

16. Obligations of State Contracting Governments

(1)

A State Contracting Government must take whatever action may

be necessary:

(a)

to keep the total of any salinity credits in excess of, or equal

to, the total of any salinity debits, attributed to it in Register

A; and

(b) to keep the cumulative total of all salinity credits in excess

of, or equal to, the cumulative total of all salinity debits,

attributed to it in both Register A and Register B.

(2)

For the purpose of calculating the total of any salinity credits under

sub-clause 16(1), any salinity credits which may in future be

attributed to a State Contracting Government must not be included

in the calculation, unless the Authority determines otherwise.

(3)

Despite sub-clause 16(2) and any provision in clause 20 or 22, for

the purposes of any calculation under sub-clause 16(1) and on the

application of a State Contracting Government, the Authority may

decide:

(a)

to postpone the attribution of any salinity debit which might

otherwise be attributed to that Government in Register A or

Government proposes to undertake; or

(b) to allow any salinity credit which might otherwise be

attributed to that Government in Register A or Register B, in

respect of an Accountable Action after it is declared

effective or complete in accordance with sub-clause 22(1) or

22(3) to be used in the calculation to off-set any salinity

debit already attributed to that Government in Register A or

(4)

The Authority:

(a)

must only make a decision under sub-clause 16(3); and

(b) may attach any condition to such a decision,

in accordance with any relevant protocols made by the Authority

under clause 40.

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Water Amendment Bill 2008 No. , 2008 167

17. Operating Registers

(1)

A Contracting Government must inform the Authority of any

Proposal which the Government, acting reasonably, considers is

likely to have a Significant Effect.

(2)

The Authority must decide, in accordance with any relevant

protocols made by the Authority under clause 40, whether the

Proposal:

(a)

is to be entered on either or both of Register A and Register

B, or neither of them; and

(b) must be treated in whole or in part as either or both of a

State Action and a Joint work or measure.

(3)

The Authority must:

(a)

estimate the salinity impacts of an Accountable Action; and

(b) determine any salinity credits or salinity debits arising from

that Accountable Action; and

(c)

attribute those salinity credits or salinity debits to one or

more of the Contracting Governments in the relevant

adopted by the Authority under clause 40.

(4)

The Authority must review and amend each item on Register A

and Register B in accordance with clause 24.

18. Determining whether a Proposal has a Significant Effect

(1)

If a Contracting Government informs the Authority of a Proposal,

the Authority must:

(a)

investigate that Proposal; and

(b) decide whether the Proposal, either on its own or

cumulatively with similar past actions or projected similar

future actions, may have a Significant Effect.

(2)

If the Authority becomes aware of an action undertaken within a

State after the relevant Baseline Date, of which the Authority has

not previously been informed as a Proposal, but which the

Authority considers has had or may have a Significant Effect,

either on its own or cumulatively with similar past actions or

projected similar future actions, it may direct the relevant State

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168 Water Amendment Bill 2008 No. , 2008

Contracting Government to inform the Authority of the action as a

Proposal under sub-clause 17(1).

(3)

A Significant Effect is:

(a)

a change in average daily salinity at Morgan which the

Authority estimates will be at least 0.1 E.C. within 100 years

after the estimate is made; or

(b) a salinity impact which the Authority estimates will be

significant.

(4)

To make an estimate referred to in sub-clause 18(3), the Authority

must use any relevant method for making that estimate set out in

any protocols made by the Authority under clause 40.

19. Assessing Salinity Impacts

(1)

If the Authority decides that:

(a)

a Proposal referred to in sub-clause 18(1); or

(b) an action referred to in sub-clause 18(2),

has or may have a Significant Effect, the Authority must:

(c)

declare the Proposal or action to be an Accountable Action;

and

(d) provisionally designate the Accountable Action to be in

whole or in part either or both of a Joint work or measure

and a State Action; and

(e)

estimate the salinity impacts of the Accountable Action,

using any relevant method for assessing salinity impacts set

out in any protocols made by the Authority under clause 40.

(2)

If the Authority declares a Proposal or action to be an Accountable

Action, the relevant Contracting Government must give to the

Authority:

(a)

all relevant information about the Accountable Action which

may assist the Authority accurately to assess its salinity

impacts;

(b) in such form as the Authority may require.

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20. Estimating Salinity Credits and Salinity Debits

(1)

After the Authority has estimated the salinity impacts of an action

which the Authority considers may be an Accountable Action

under clause 19, it must:

(a)

subject to sub-clause 20(2), estimate the prospective salinity

credits or salinity debits arising from that action; and

(b) designate that action to be either a Joint work or measure or

a State Action; and

(c)

determine whether the prospective salinity credits or salinity

debits will be entered in Register A or Register B; and

(d) enter the action in the relevant Register.

(2)

If the action referred to in sub-clause 20(1) is a permanent transfer

of an entitlement within the meaning of Schedule D of this

Agreement, the Authority must estimate any prospective salinity

credits or salinity debits arising from that action in accordance with

clause 10 of that Schedule.

(3)

The Authority must make an estimate referred to in paragraph

20(1)(a) or sub-clause 20(2) by reference either:

(a)

to the average annual salinity impacts over the 30 years

following the date of the estimate; or

(b) some other basis for estimating salinity impacts adopted by

the Authority from time to time.

21. Attributing Salinity Credits or Salinity Debits

(1)

The Authority must attribute salinity credits or salinity debits:

(a)

arising from a Joint work or measure, in accordance with

clause 11; or

(b) arising from a State Action, to the State Contracting

Government which undertakes that action, subject to

sub-clause 21(2).

(2)

Despite paragraph 21(1)(b), where:

(a)

there is an agreement referred to in clause 23, the Authority

must attribute any salinity credits or salinity debits in

accordance with that agreement;

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170 Water Amendment Bill 2008 No. , 2008

(b) two or more Contracting Governments together undertake

the relevant State Action, the Authority must attribute any

salinity credits or salinity debits arising from that action in

the manner agreed between those Contracting Governments;

(c)

the relevant State Action is a permanent transfer of an

entitlement within the meaning of Schedule D of this

Agreement, the Authority must attribute any salinity credits

or salinity debits arising from that action in Register A and

in accordance with clause 10 of that Schedule.

22. When Salinity Credits and Salinity Debits must be entered on a

Register

(1)

Subject to sub-clause 16(3), when the Authority has estimated that

a salinity credit will arise from an Accountable Action and either:

(a)

the Authority declares that Accountable Action to be

effective under clause 64 of the Agreement; or

(b) if the Accountable Action is to be undertaken in stages, the

Authority declares a stage to be effective under clause 64 of

the Agreement,

the Authority must:

(c)

attribute salinity credits arising from the Accountable Action

to one or more Contracting Government, in accordance with

clause 21; and

(d) enter the salinity credits on the relevant Register,

in accordance with any relevant protocols made by the Authority

under clause 40.

(2)

Subject to sub-clause 16(3), when the Authority has estimated that

salinity debits will arise from an Accountable Action, before any

Contracting Government:

(a)

commences to undertake the Accountable Action; or

(b) if the Accountable Action is to be undertaken in stages,

commences to undertake any stage,

the Authority must:

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(c)

attribute the prospective salinity debits arising from the

Accountable Action or stage to one or more Contracting

Governments in accordance with clause 21; and

(d) enter the salinity debits on the relevant Register,

in accordance with any relevant protocols made by the Authority

under clause 40.

(3)

Despite sub-clauses 22(1) and 22(2), if an Accountable Action is a

State Action:

(a)

which is not required to be declared effective under

clause 64 of the Agreement, the Authority must:

(i)

attribute any salinity credits arising from that State

Action at the time when the Authority considers that

the Accountable Action is substantially complete; and

(ii) enter the salinity credits on the relevant Register; or

(b) which comprises one or more permanent transfers of an

entitlement within the meaning of Schedule D of this

Agreement, the Authority must attribute any salinity credits

or salinity debits arising from that Accountable Action:

(i)

in the case of the permanent transfer of one

entitlement, at the time when the transfer occurs; or

(ii) in the case of the permanent transfer of more than one

entitlement, in such proportions and at such times

determined by the Authority,

in accordance with any relevant protocols made by the

Authority under clause 40.

23. Trading and Transfers between Registers

(1)

A Contracting Government may agree to assign any or all of the

salinity credits or salinity debits attributed to that Government in

(2)

When the parties to an agreement referred to in sub-clause 23(1)

inform the Authority in writing of that agreement and its effect, the

Authority must:

(a)

attribute salinity credits or salinity debits in accordance with

the agreement; and

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172 Water Amendment Bill 2008 No. , 2008

(b) amend Register A accordingly.

(3)

A Contracting Government, with the prior written approval of the

Authority, may agree to assign any or all of the salinity credits or

salinity debits attributed to that Government in Register B, to one

or more of the other Contracting Governments.

(4)

The Authority must:

(a)

attribute salinity credits and salinity debits in accordance

with any agreement approved by the Authority under

sub-clause 23(3); and

(b) amend Register B accordingly.

(5)

The Authority may give effect to any written request by a

Contracting Government to transfer a salinity credit attributed to

that Government:

(a)

in Register A, to Register B; or

(b) in Register B, to Register A,

in accordance with any relevant protocols made by the Authority

under clause 40.

24. Review and amendment of Register entries

(1)

The Authority:

(a)

must, at intervals of no more than 5 years, and may at any

other time, re-estimate the salinity impacts of each

Accountable Action; and

(b) if the re-estimated salinity impacts differ from the

Authoritys most recent previous estimate of the salinity

impacts, must:

(i)

alter the calculation and attribution of either or both of

the salinity credits and salinity debits; and

(ii) make any consequential amendment to a Register,

to reflect the re-estimated salinity impacts.

(2)

The Authority may, at any time:

(a)

designate a Joint work or measure to be a State Action; or

(b) designate a State Action to be Joint work or measure; or

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Water Amendment Bill 2008 No. , 2008 173

(c)

remove an Accountable Action from a Register; or

(d) determine that an Accountable Action must, in future, be

treated as more than one Accountable Action.

(3)

Whenever the Authority takes any action referred to in

sub-clause 24(1) or 24(2) it must:

(a)

review the calculation and attribution of salinity credits or

salinity debits arising from the relevant Accountable Action;

and

(b) make any consequential amendment to a Register,

in accordance with any relevant protocols made by the Authority

under clause 40.

PART VI -- MONITORING

25. Monitoring obligations

(1)

The Authority and each State Contracting Government must carry

out such monitoring as it is required to undertake:

(a)

to fulfil its respective reporting obligations under Part VII;

and

(b) by this Part,

in accordance with any relevant protocols made by the Authority

under clause 40.

(2)

A State Contracting Government must give the Authority the

results of monitoring carried out by it:

(a)

since it last gave such results to the Authority, at any time

reasonably requested by the Authority; and

(b) during a financial year, by 30 November of the following

financial year.

26. End-of-Valley Targets

A State Contracting Government must monitor:

(a)

the degree to which it is achieving an End-of-Valley Target;

Schedule 1 A mendments based on referrals of power

174 Water Amendment Bill 2008 No. , 2008

(b) at the relevant site at which compliance with that target is to

be measured,

in accordance with any protocols adopted by the Authority under

clause 40.

27. Program to monitor Accountable Actions

(1)

A State Contracting Government nominated under

sub-clause 56(5) of the Agreement, in respect of a Joint work or

measure that is an Accountable Action, must give the Authority a

proposed program to monitor the salinity impacts of that

Accountable Action within 3 months after the Government is

nominated.

(2)

A Contracting Government must give to the Authority a proposed

program to monitor the salinity impacts of any State Action

undertaken by that Government within 3 months after the State

Action has been completed.

(3)

The Authority may:

(a)

accept a program given to it under sub-clause 27(1) or 27(2);

(b) accept that program with any amendment made by the

Authority; or

(c)

decline to accept the program, setting out its reasons.

(4)

The Authority may, from time to time, either:

(a)

give directions to a Constructing Authority under paragraph

61(1)(a) of the Agreement; or

(b) make protocols under clause 40,

to ensure that any Joint work or measure or any Former salinity

and drainage work is monitored efficiently and effectively.

28. Monitoring Accountable Actions

(1)

A Contracting Government nominated under sub-clause 56(5) of

the Agreement in respect of a Joint work or measure must monitor

the salinity impacts of that Joint work or measure in accordance

with a program accepted by the Authority under clause 27.

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Water Amendment Bill 2008 No. , 2008 175

(2)

A State Contracting Government must monitor the salinity impacts

of a State Action in the relevant State, in accordance with a

program accepted by the Authority under clause 27.

PART VII -- REPORTING, AUDIT AND REVIEW

29. State Contracting Governments

(1)

A State Contracting Government must prepare and give to the

Authority a Report under this clause in respect of each financial

year, as soon as practicable after the end of that financial year and,

in any case, by 30 November in the following financial year.

(2)

A Report under sub-clause 29(1) must include:

(a)

information about the progress of the relevant Government

in undertaking:

(i)

any Accountable Action; and

(ii) any Proposal of which the Authority has been

informed; and

(iii) any Joint work or measure; and

(iv) any other element of the Strategy,

for which that Government is responsible; and

(b) a report about each valley in the State for which an

End-of-Valley Target has been adopted, which sets out the

information required by clause 30; and

(c)

a report on the reviews undertaken in the financial year of:

(i)

any valley referred to in paragraph 29(2)(b); and

(ii) any State Action undertaken by the relevant

Government,

as required by clause 33.

30. Valley Reports

(1)

A report about a valley referred to in paragraph 29(2)(b) must:

(a)

explain how the relevant Government is implementing the

Program to meet the End-of-Valley Target for that valley;

and

Schedule 1 A mendments based on referrals of power

176 Water Amendment Bill 2008 No. , 2008

(b) describe the effect which:

(i)

implementing that Program; and

(ii) undertaking any other existing or proposed significant

action in the valley,

has had, or will have on the salinity, salt load and, where relevant,

flow regime at each site at which compliance with the

End-of-Valley Target is to be measured.

(2)

A Government must comply with any relevant protocols made by

the Authority under clause 40 when preparing a valley report under

paragraph 29(2)(b).

31. Commonwealth

The Commonwealth Government must prepare and give to the Authority

a report in respect of each financial year, as soon as practicable after the

end of that financial year, and in any case by 30 November in the

following financial year, which includes information about the progress

of the Commonwealth in undertaking any work or measure for the

purposes of this Schedule, for which it has been nominated as the

responsible Government under sub-clause 56(5) of the Agreement.

32. Authority

As soon as practicable after it receives a report from each State

Contracting Government made under sub-clause 29(1) and where

required by clause 31, from the Commonwealth Government, and in any

case by 31 March in any year, the Authority must give to the Ministerial

Council a report which includes:

(a)

a copy of each report made by a Government; and

(b) a consolidated summary of all valley reports referred to in

paragraph 29(2)(b); and

(c)

a consolidated summary of the results of, and any

recommendations made in the report of, an audit conducted

under clause 34; and

(d) a program setting out the matters to be reviewed and

reported on pursuant to sub-clause 33(1) in the next financial

year; and

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Water Amendment Bill 2008 No. , 2008 177

(e)

a copy of the contents of Register A and Register B as at

30 November in the preceding calendar year; and

(f)

details of other activities which have been taken to meet the

objectives of the Strategy since the last report made under

this clause; and

(g) a report on:

(i)

the operation and implementation of existing Joint

works and measures; and

(ii) the progress of any proposed new Joint works or

measures; and

(h) the results of each review carried out by a State Contracting

Government or the Authority in the preceding financial year

under clause 33; and

(i)

a list of each report made by the Authority under clause 44

or 45 in the preceding financial year.

33. Rolling Five-Year Reviews

(1)

A State Contracting Government must adopt and implement a

program to review and report upon each:

(a)

valley for which an End-of-Valley Target has been set out in

Appendix 1; and

(b) State Action undertaken by that Government,

at least once in every five years.

(2)

A report prepared under paragraph 33(1)(a) must:

(a)

be based on the best information available to the State

Contracting Government at the time the report is prepared,

about the salinity, salt load and, where relevant, the flow

regime at each site at which compliance with an

End-of-Valley Target is to be measured; and

(b) include:

(i)

a current estimate of Delayed salinity impacts in each

of 2015, 2050 and 2100 if no further action were taken

to reduce or limit such salinity impacts;

Schedule 1 A mendments based on referrals of power

178 Water Amendment Bill 2008 No. , 2008

(ii) an estimate of the effect that the already completed

elements of the Program of actions will have in the

current year and in each of 2015, 2050 and 2100; and

(c)

the predicted effect that further implementing the Program of

actions will have in each of 2015, 2050 and 2100; and

(d) the current End-of-Valley Target for that valley.

(3)

A report prepared under sub-clause 33(1)(b) must include the

Authoritys estimate (based on the best information available to the

Authority at the time the report is prepared) of the cumulative

effect of the State Action on the salinity, salt load and, where

relevant, the flow regime in the upper River Murray and the River

Murray in South Australia in the current year and in each of 2015,

2050 and 2100.

(4)

The Authority must adopt and implement a program to review and

report upon each Joint work and measure at least once in every five

years.

(5)

A report prepared under sub-clause 33(4) must include the

Authoritys estimate (based on the best information available to the

Authority at the time the report is prepared) of the cumulative

effect of the Joint Work on the salinity, salt load and, where

relevant, the flow regime in the upper River Murray and the River

Murray in South Australia in the current year and in each of 2015,

2050 and 2100.

(6)

Any review conducted and any report prepared under this clause

must comply with any relevant protocols adopted by the Authority

under clause 40.

34. Audit

(1)

The Authority must appoint independent auditors for the purpose

of carrying out an annual audit under this clause.

(2)

A person who is appointed as one of the independent auditors

referred to in sub-clause 34(1):

(a)

is appointed for such period and on such terms as are set out

in that persons instrument of appointment; and

(b) may resign by written notice addressed to the President; and

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Water Amendment Bill 2008 No. , 2008 179

(c)

may only be removed from office during the period of that

persons appointment by the Ministerial Council, on the

recommendation of the Authority.

(3)

The independent auditors must together carry out an annual audit

of:

(a)

the report of each review conducted in the preceding

financial year by each State Contracting Government and by

the Authority under sub-clause 33(1) and 33(3),

respectively; and

(b) Register A and Register B.

(4)

The independent auditors must, in each audit, reach a view by

consensus about:

(a)

the performance of each State Contracting Government and

of the Authority in implementing the provisions of this

Schedule in the relevant year; and

(b) whether the Authority has fairly and accurately recorded the

salinity impacts of each action entered in Register A or

(5)

The independent auditors must prepare a report setting out:

(a)

the findings of each audit; and

(b) any recommendations made by the independent auditors

arising from that audit.

(6)

Without limiting sub-clause 34(5), a report:

(a)

must set out the view reached on each of the matters referred

to in sub-clause 34(4); and

(b) may recommend to the Authority that the salinity impacts

entered in Register A or Register B for an Accountable

Action be varied; and

(c)

may set out a finding that the total salinity credits are not

equal to, or do not exceed, the total salinity debits attributed

to a State Contracting Government in Register A, contrary to

paragraph 16(1)(a).

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180 Water Amendment Bill 2008 No. , 2008

35. Review of Schedule

(1)

The Authority, by 31 December 2014 and at intervals of no more

than 7 years thereafter, must prepare and give to the Ministerial

Council a report upon the operation of this Schedule.

(2)

Without limiting the contents of any report prepared under

sub-clause 35(1), the Authority must include:

(a)

a summary of:

(i)

the Delayed salinity impacts; and

(ii) the salinity impacts of every Accountable Action

undertaken before the date of the report,

within the Murray-Darling Basin, based on the reports

prepared under clause 33 during the preceding 5 years; and

(b) a description of any additions to, or alterations of, the Joint

Program proposed to ensure that the Basin Salinity Target is

met, since the Authoritys last report made under

sub-clause 35(1).

(3)

A report prepared under sub-clause 35(1) may conclude that a State

Contracting Government has not complied with one or more of its

obligations under this Schedule.

PART VIII -- MODELS

36. Models to be developed by the Authority

(1)

Using the relevant Benchmark Period, the Authority must develop

one or more models to simulate:

(a)

the salinity, salt load and flow regime, each on a daily basis;

and

(b) the economic effects on water users of the simulated salinity,

salt load and flow regime,

in the Upper River Murray and the River Murray in South

Australia.

(2)

Any model developed under sub-clause 36(1) must be capable of

predicting:

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Water Amendment Bill 2008 No. , 2008 181

(a)

any salinity impacts of Joint works and measures and State

Actions; and

(b) any Delayed salinity impacts,

at Morgan and such other relevant locations as the Authority may

determine.

(3)

A State Contracting Government must give the Authority such data

about Joint works and measures, State Actions and Delayed

salinity impacts, within that State, and in such form, as the

Authority may from time to time request, to assist it in developing

a model referred to in sub-clause 36(1).

(4)

The Authority may, from time to time, alter a model developed

under sub-clause 36(1).

37. Models developed by State Contracting Governments

(1)

Each State Contracting Government must develop one or more

models to simulate, under Baseline Conditions, the daily salinity,

salt load and flow regime, over the Benchmark Period, at each site

at which compliance with an End-of-Valley Target is to be

measured.

(2)

A model developed by a State Contracting Government must be

capable of predicting the effect of:

(a)

all Accountable Actions undertaken in the State ; and

(b) any Delayed salinity impacts,

on the salinity, salt load and flow regime at each site at which

compliance with an End-of-Valley Target is to be measured in each

of 2015, 2050, 2100 and in such other years as the Authority may

determine.

(3)

A State Contracting Government may, from time to time, alter a

model developed under sub-clause 37(1).

38. Assessment and Approval of Certain Models

(1)

A model, or any alteration to that model, developed to help the

Authority or a State Contracting Government meet reporting

obligations under this Schedule, must be assessed in accordance

with this clause and any relevant protocols made by the Authority

under clause 40.

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182 Water Amendment Bill 2008 No. , 2008

(2)

The Authority must assess any model, or any alteration to a model,

made by a State Contracting Government.

(3)

The Authority must appoint an appropriately qualified panel to

assess any model, or alteration to a model, made by the Authority.

(4)

An assessment of any alteration to a model must set out the

assessors prediction of the consequences of the alteration on

salinity, salt load and the flow regime, each on a daily basis, at

each site at which compliance with an End-of-Valley Target is to

be measured, which may be affected by the alteration.

(5)

After considering the assessment made by the panel, the Authority

may:

(a)

approve the model or alteration; or

(b) approve that model or alteration, subject to:

(i)

in the case of a model or alteration prepared by a

Government, the relevant Government modifying the

model or alteration in a way agreed between it and the

Authority; or

(ii) in the case of a model prepared by the Authority, the

Authority modifying the model or alteration in a way

it determines; or

(c)

decline to approve the model or alteration ,setting out its

reasons.

(6)

Within 3 months after the Authority approves a model or alteration

under paragraph 38(5)(b):

(a)

the relevant Government or the Authority must modify the

model, or alteration to a model, as required under that

paragraph; and

(b) in the case of a State Contracting Government, give a copy

of the modified model, or alteration to a model, to the

Authority.

(7)

A model in the form initially assessed under this clause may be

used temporarily for the purposes of this Schedule until any

modification to the model agreed upon or determined under

paragraph 38(5)(b) (as the case requires) has been:

(a)

made by the Authority or the relevant Government; and

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 183

(b) approved by the Authority.

(8)

When an alteration to a model:

(a)

is approved under paragraph 38(5)(a); or

(b) modified under sub-clause 38(6),

the relevant model is altered accordingly.

39. Review of Models

(1)

A State Contracting Government must:

(a)

review any model, and any amended model, developed by it

and approved by the Authority, before 31 December 2014

and thereafter at intervals of not more than 7 years; and

(b) propose any amendment to a model, or amended model,

which that review identifies as appropriate.

(2)

The Authority must:

(a)

review any model, and any amended model, developed by it,

or developed by the Commission for the purposes of the

former Schedule and in operation immediately prior to

commencement of this Schedule, before 31 December 2014

and thereafter at intervals of not more than 7 years; and

(b) propose any amendment to a model, or amended model,

which that review identifies as appropriate.

PART IX -- PROTOCOLS

40. Authority's power to make protocols

(1)

The Authority may, in consultation with the Committee, from time

to time make, amend or revoke such protocols as it considers

necessary, desirable or convenient to give effect to this Schedule.

(2)

The Authority must notify each Contracting Government:

(a)

whenever it is considering making, amending or revoking a

protocol; and

(b) of the subject matter of the proposed protocol or

amendment.

Schedule 1 A mendments based on referrals of power

184 Water Amendment Bill 2008 No. , 2008

(3)

A Contracting Government may nominate a person with relevant

expertise and experience to give advice to the Authority in

developing the proposed protocol or amendment.

(4)

The Authority must consider any advice given by any person

nominated under sub-clause 40(3), before it adopts the proposed

protocol or amendment.

(5)

Protocols made under this clause must not be inconsistent with any

provision of the Agreement (including its Schedules) and are void

to the extent of any inconsistency.

(6)

The Authority may not delegate any power conferred on it by

sub-clause 40(1) or clause 41.

41. Examples of possible protocols

Without limiting sub-clause 40(1), the Authority may make protocols:

(a)

about assessing Proposals;

(b) about the nature and form of information which a State

Contracting Government must give to the Authority to

enable it to estimate salinity impacts;

(c)

establishing a common method to be used to estimate the

salinity impacts of both any Proposal and any Accountable

Action;

(d) establishing a method, using Baseline Conditions, to

estimate Delayed salinity impacts;

(e)

establishing a method to determine any salinity credits or

salinity debits arising from a salinity impact;

(f)

for administering Register A and Register B, including:

(i)

deciding whether an Accountable Action should be

entered on Register A or Register B;

(ii) how to estimate the salinity impact of an action, for

the purposes of Register B;

(iii) how any salinity credits or salinity debits are to be

apportioned between, and attributed to, Contracting

Governments;

(g) about monitoring:

(i)

the salinity impacts of an Accountable Action;

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Water Amendment Bill 2008 No. , 2008 185

(ii) progress made under this Schedule in meeting the

Basin Salinity Target;

(iii) progress made by a State Contracting Government in

meeting any End-of-Valley Target within that State;

(h) about developing and assessing models referred to in

Part VIII and using those models;

(i)

about preparing, presenting and the required content of a

valley report referred to in paragraph 29(2)(b);

(j)

about preparing a program for, conducting, preparing and

the required content of, a report on a review of valleys, State

Actions and Joint works and measures, referred to in

clause 33;

(k) about making sure that reporting obligations and the nature

and content of reports prepared under this Schedule are

consistent with the reporting requirements of other national

or regional resource management strategies relevant to the

Strategy.

PART X -- DEFAULT

42. Relationship with Part XI of the Agreement

The provisions of this Part are in addition to, and do not derogate from,

any provision in clause 86 of the Agreement.

43. Default by a State Contracting Government

(1)

The Authority must determine that a State Contracting Government

is in default for the purpose of this clause if the Authority:

(a)

decides; or

(b) receives a report of an audit under sub-clause 34(5) which

finds,

that the total salinity credits do not exceed, or are not equal to, the

total salinity debits attributed to that Government in Register A,

contrary to paragraph 16(1)(a).

(2)

If the Authority determines that a State Contracting Government is

in default, the Authority must:

Schedule 1 A mendments based on referrals of power

186 Water Amendment Bill 2008 No. , 2008

(a)

forthwith declare that the State is in default of its obligations

under this Schedule; and

(b) report the matter to the next meeting of the Ministerial

Council.

44. Exception Reports

(1)

The Authority may determine:

(a)

that the combined total of all salinity credits does not exceed

the combined total of all salinity debits attributed to a State

Contracting Government in both Register A and Register B,

contrary to paragraph 16(1)(b);

(b) that a State Contracting Government has not met, or is

unlikely to meet, any End-of-Valley Target set out in the

Appendix;

(c)

that a State Contracting Government has not complied with

one or more of its obligations under this Schedule, on the

basis of a conclusion in a review report, referred to in

sub-clause 35(3).

(2)

If the Authority makes a determination under sub-clause 44(1) it

must report that fact to the next meeting of the Ministerial Council.

(3)

The Authority may revoke a determination made under

sub-clause 44 (1) if it is satisfied that the circumstances which led

to the determination no longer exist.

45. Proposal for remedial action

The Authority must:

(a)

upon making a determination under sub-clause 43(1) or

44(1), consult with the relevant State Contracting

Government, with a view to remedying the situation leading

to that determination; and

(b) include in the relevant report to the Ministerial Council, the

Authoritys proposal for remedying that situation.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 187

46. Action by a State Contracting Government

A State Contracting Government which has been the subject of a report

made by the Authority to the Ministerial Council under either paragraph

43(2)(b) or sub-clause 44(2), must:

(a)

give a report to the next meeting of the Ministerial Council,

setting out:

(i)

an explanation of the circumstances leading to the

Authoritys determination; and

(ii) what action the Government has taken, or proposes to

take, to remedy that situation; and

(iii) if the circumstances leading to the Authoritys

determination were a situation referred to in paragraph

44(1)(a), how long the Government predicts it will be

before that Government complies with paragraph

16(1)(b); and

(b) report annually thereafter to the Ministerial Council on the

action it has taken, or proposes to take, to remedy the

situation, until:

(i)

in the case of a determination made under

sub-clause 43(1), the Authority is satisfied that the

Government once more complies with paragraph

16(1)(a) and reports that fact to the Ministerial

Council; or

(ii) in the case of a determination made under

sub-clause 44(1), the Authority revokes that

determination.

PART XI -- FINANCE

47. State Actions

(1)

Subject to sub-clause 47(2), the cost of undertaking and monitoring

a State Action must either:

(a)

be met by the Contracting Government which undertakes it;

Schedule 1 A mendments based on referrals of power

188 Water Amendment Bill 2008 No. , 2008

(b) if the State Action is undertaken by more than one

Contracting Government, be met by them in such

proportions as they may agree.

(2)

Where a Contracting Government agrees to assign to another

Contracting Government any salinity credits or salinity debits

under clause 23, any financial obligation of the Government

making the assignment under sub-clause 47(1) will be allocated

between the parties to the agreement, in such proportions as they

may agree.

48. Joint works or measures

(1)

Subject to sub-clause 48(2), the provisions of clause 72 of the

Agreement apply to every Joint work or measure undertaken under

this Schedule.

(2)

The share of the cost of any Joint work or measure attributable to a

Contracting Government under sub-clause 48(1) may be varied by

an agreement made under clause 23.

PART XII -- TRANSITIONAL PROVISIONS

49. Former salinity and drainage works

(1)

A monitoring program approved for a Former salinity and drainage

work under clause 12 of the former Schedule must be carried out

according to its terms, unless and until the Authority alters it.

(2)

A Contracting Government nominated under sub-clause 56(5) of

the Agreement with respect to a Former salinity and drainage work

must meet the cost of operating, maintaining and monitoring that

work, unless an agreement made by that Government under

clause 23 provides otherwise.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 189

SCHEDULE B - APPENDIX 1 -- END OF VALLEY TARGETS

Murr

ay-

arl

ing B

asi

n A

gre

ent

Schedu

le C, A

endix

asi

n S

init

y Managem

ent

Str

egy -

-of

-V

ley Sal

init

y T

arge

on - 15 Sept

ber 2008

Salt

oad

/yr)

Salt

oad

/yr)

Salt

oad

/yr)

MEN

Murr

ay-

arl

ing B

asi

570

920

1,600,000

110%

87%

110%

627

800^

1,760,000

Mur

ray

Mor

gan (

Sal

ini

)

426554

(95%

(

95%

Mur

ray

Lock

1 (

Flow)

426902

SOUT

SA B

orde

380

470

1,300,000

88%

412

Flow to SA

426200

Lock

6 t

o B

450

600

1,500,000

91%

543

Mur

ray

Lock

4 (

Flow)

426514

Pum

Sta

on (

Sal

ini

)

426537

Mor

gan

600

820

1,600,000

94%

770

Mur

ray

Mur

ray

426522

W SOUT

Mur

rum

150

230

160,000

108%

112%

106%

162

258

169,600

Mur

rum

s Bal

rana

ld We

410130

Lachl

430

660

250,000

107%

105%

103%

460

693

257,500

Lachl

an R @

Forbe

s (

tons W

412004

440

490

27,000

132%

93%

129%

581

456

34,830

an R @

ong

gon

421023

cqua

480

610

23,000

105%

122%

112%

504

744

25,760

cqua

e R @

inda (

ls Bri

421012

350

390

9,000

105%

99%

368

8,910

gh R

ung

an Bri

420020

440

650

110,000

108%

110%

116%

475

715

127,600

oang

419026

ydi

400

540

7,000

103%

101%

100%

412

545

7,000

ront

418058

SW B

der

250

330

50,000

100%

250

330

50,000

e R @

Mung

indi

416001

Barw

on-

arl

ing

330

440

440,000

118%

103%

131%

389

453

576,400

arl

ing R @

canni

a M

n C

hannel

425008

pper

urr

150,000

urr

ay R @

oods

409016

Riv

ine Pl

310

390

1,100,000

urr

ay R @

Redcl

414204

lee

Zone

380

470

1,300,000

Flow to SA

426200

ICT

1,380

1,720

31,000

100%

1,380

1,720

31,000

a R @

sha

415200

voca

2,060

5,290

37,000

102%

2,096

voca

uam

bat

ook

408203

Loddon

750

1,090

88,000

95%

711

Loddon R

Laanec

oor

407203

pas

530

670

54,000

78%

412

pas

pe R @

pas

pe W

406218

oul

bur

100

152

166,000

99%

oul

bur

n R

oul

bur

n We

405259

rok

100

130

15,000

141%

141

rok

en Ck

's W

404217

vens

100

54,000

100%

101%

100

54,540

vens

Peec

hel

ba-

East

403241

iewa

19,000

100%

19,000

iewa R

andi

ana

402205

Vic

pper

urr

150,000

urr

ay R @

oods

409016

Vic

Riv

ine Pl

270

380

630,000

urr

ay R @

an H

409204

Vic

lee

Zone

380

470

1,300,000

+15E

Flow to SA

426200

ld B

der

250

330

50,000

100%

250

330

50,000

on R

Mung

indi

416001 #

Mooni

140

150

8,700

100%

140

150

8,700

Mooni

e R @

Fent

417204A

ondam

ine-

onne

170

210

4,200

100%

170

210

4,200

landool

ebe

lon R

422207A

170

210

5,000

100%

170

210

5,000

ohk

a R @

ebe

422209A

150

280

6,500

100%

150

280

6,500

ie Ck

Wool

ebe

l R

422211A

170

210

29,000

100%

170

210

29,000

goa R @

renda

422015 #

160

210

10,000

100%

160

210

10,000

ran R @

ew A

dool

422030 #

Par

100

24,000

100%

100

24,000

Par

oo R

424201A

101

110

4,800

100%

101

110

4,800

o R

un N

o.2 #

423004 #

100

130

5,500

100%

100

130

5,500

tabur

ra Ck

ra #

423005 #

IAN

ITA

ITORY

ACT

tba

Mur

rum

s Cros

410777

^ 95th

per

e t

get

. T

he Basi

n Sal

ini

get

Mor

gan i

s l

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95%

the t

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hes

e s

e ope

rat

ed by

ew S

out

h Wa

les

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ap E

e I

ley

ase

ne C

ond

ions

(1 Jan 2000)

Sali

nit

y (

�S/

)

Sit

umber

-of

-V

ley Target

(as per

ntage

ase

ne)

Sali

nit

y (

�

S/c

)

dian

(50%

eak

(80%

ley Reporti

ng S

-of

-V

ley Target

(as absol

ute

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Sali

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)

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eak

(80%

dian

(50%

eak

(80%

Schedule 1 A mendments based on referrals of power

190 Water Amendment Bill 2008 No. , 2008

SCHEDULE B - APPENDIX 2 -- AUTHORISED JOINT WORKS AND

MEASURES

Description of works

Location

Nominated

Government

Status

Barr Creek Drainage

Diversion Scheme Saline

water diversion fro m Barr

Creek with disposal to the

Tutchewop Lakes

Northern Victoria

approximately 20 km

north of the township

of Kerang

Victoria

Former

Salinity and

Drainage

Work

Burong a Salt Interception

Scheme (part) Groundwater

pumping with disposal to

Mourquong basin

Southwest New South

Wales on the River

Murray between

Mildura Weir and

Mourquong

New South

Wales

Former

Salinity and

Drainage

Work

Mallee Cliffs Salt

Interception Scheme

Groundwater pump ing with

disposal to evaporation

basin adjacent to Mallee

Cliffs National Park

Southwest New South

Wales on the River

Murray approximately

30 km east of Mildura

opposite Lambert

Island in Victoria

New South

Wales

Former

Salinity and

Drainage

Work

Mildura-Merbein Salt

Interception Scheme (part)

Groundwater pump ing with

disposal to Wargan

evaporation basins

Northwest Victoria on

the Southern side of

the River Murray

between Mildura and

Merbein

Victoria

Former

Salinity and

Drainage

Work

Rufus River Groundwater

Interception Scheme

Groundwater pump ing with

disposal to evaporation

basins on the western side of

lake Victoria

On both sides of Rufus

River between the

outlet fro m Lake

Victoria and the River

Murray

South

Australia

Former

Salinity and

Drainage

Work

Waikerie Salt Interception

Scheme Groundwater

pumping with disposal to

Stockyard Plain evaporation

basin

Southern side of the

River Murray fro m

Holder Bend (River

distance 392 km) to

the Toolunka Reach

(River d istance 371

km)

South

Australia

Former

Salinity and

Drainage

Work

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 193

SCHEDULE D - TRANSFERRING WATER ENTITLEMENTS AND

ALLOCATIONS

PART I - PRELIMINARY

Purposes

The purposes of this Schedule are, consistently with the laws of each

State, the Agreement, the National Water Initiative and policies from

time to time adopted by the Ministerial Council:

(a)

to co-ordinate the transfer between States and between

valleys within the Murray-Darling Basin, of such water

entitlements and allocations as are, from time to time,

determined by the Ministerial Council and specified in

Appendix 1, in a way which minimises any detrimental

effects upon the environment and upon other water users;

(b) to set out principles to be applied to such transfers by the

Authority, State Contracting Governments and licensing

authorities;

(c)

to allow protocols to be made under this Schedule to

supplement its provisions; and

(d) to require a State Contracting Government to notify the

Authority of any intervalley transfer made within that State.

Application

Subject to the laws of each State, this Schedule applies to transfers

referred to in paragraph 1(a), relating to water within:

(a)

the upper River Murray and the River Murray in South

Australia; and

(b) regulated reaches of the Goulburn, Campaspe, Loddon and

Murrumbidgee river systems; and

(c)

such other sources from time to time specified in Appendix

(d) for the purposes of either or both of exchange rate trade and

tagged trade, as the Ministerial Council may determine from

time to time.

Schedule 1 A mendments based on referrals of power

194 Water Amendment Bill 2008 No. , 2008

Definitions and interpretation

(1)

In this Schedule and any protocols made under it, save where

inconsistent with the context:

(a)

"allocation" means the volume of water allocated for use

under an entitlement in any water year (as defined in

clause 2 of Schedule E) pursuant to the law of a State;

"cap on diversions" has the same meaning as in Schedule

"convert", in relation to an entitlement, means to convert an

entitlement of one type, with lower reliability into an

entitlement of another type, with higher reliability, or vice

versa;

"conversion factor" means a factor determined for the

purpose of clause 12;

"designated river valley" has the meaning set out in

Schedule E;

"entitlement" means:

(i)

an entitlement to a particular share of water within the

upper River Murray, the River Murray in South

Australia or regulated reaches of the Goulburn,

Campaspe, Loddon and Murrumbidgee river systems

or a source referred to in paragraph 2(c) pursuant to

the law of a State; or

(ii) any other entitlement to divert water or to receive

water diverted by another from those sources,

but does not include a State entitlement;

"environmental entitlement" means an entitlement to use

water for environmental purposes;

"exchange rate" means a rate determined for the purposes

of clause 12;

"former Schedule" means Schedule E of the former

Agreement;

"interstate transfer" means a transfer of an entitlement or

allocation made between States in accordance with this

Schedule;

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 195

"intervalley transfer" means a transfer of an entitlement or

allocation made out of a valley:

(i)

into another valley; or

(ii) into the River Murray, or vice versa;

"licensing authority" means the authority within a State

with power to make a final decision whether a transfer may

be made into or out of that State;

"relevant water authority" in relation to an entitlement or

allocation within an irrigation district, means the body

responsible for administering that entitlement or allocation

in that district;

"State of destination" means the State into which a transfer

of an entitlement or allocation is, or is to be, made;

"State of origin" means the State out of which a transfer of

an entitlement or allocation is, or is to be made;

"transfer", in relation to an allocation, includes:

(i)

the transfer of an allocation already made in a State of

origin to a State of destination, in accordance with this

Schedule; and

(ii) the transfer of an allocation within a State, according

to the laws of that State;

"transfer", in relation to an entitlement, includes:

(i)

the transfer of an entitlement, by either exchange rate

trade or tagged trade, between States, in accordance

with this Schedule; and

(ii) the transfer of an entitlement within a State, according

to the laws of that State;

"Transfer Register" means the register referred to in

clause 16;

"valley" means a river valley defined in a protocol made

under paragraph 6(1)(b);

"valley account" has the meaning set out in

sub-clause 11(3);

"year" means the 12 months beginning on 1 July;

Schedule 1 A mendments based on referrals of power

196 Water Amendment Bill 2008 No. , 2008

(b) a reference to a clause, sub-clause, paragraph or Appendix is

a reference to a clause, sub-clause, paragraph or Appendix of

this Schedule;

(c)

a reference to the cap on diversions for a designated river

valley is to the long-term diversion cap for that designated

river valley, fixed in accordance with Schedule E;

(d) a reference to "exchange rate trade" is to an arrangement

under which an entitlement in a State of origin is cancelled,

extinguished or suspended and an equivalent entitlement is

created in a State of destination, either permanently or for a

fixed term;

(e)

a reference to "tagged trade" is to an arrangement under

which every allocation made under an entitlement in a State

of origin is made available for use in a State of destination,

either permanently or for a fixed term.

(2)

For the purposes of this Schedule, the Ministerial Council may

determine the geographic extent and limits of the Barmah Choke.

PART II -- GENERAL PRINCIPLES

Power to alter entitlements and allocations to which Schedule applies

On the recommendation of the Authority, the Ministerial Council may,

from time to time, alter the entitlements and allocations to which this

Schedule applies, by amending Appendix 1.

Suspension of Schedule

(1)

Subject to sub-clause 19(10), a State Contracting Government may,

from time to time, after consulting the Ministerial Council, suspend

or limit the operation of this Schedule in that State, if the State

Contracting Government considers that:

(a)

the use or management of water comprised in entitlements or

allocations transferred under this Schedule have increased or

accelerated environmental degradation; or

(b) any other State has made inadequate progress towards

pricing water to recover full costs, in accordance with

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 197

principles adopted by the Council of Australian

Governments; or

(c)

the policies or practices applying within any other State do

not achieve the objectives of the National Water Initiative

relating to reducing barriers to trading entitlements and

allocations and ensuring competitive neutrality in the market

for such entitlements and allocations.

(2)

The Ministerial Council may, from time to time, having regard to

the National Water Initiative, by resolution, suspend or limit the

operation of this Schedule in relation to a State or States.

Power to make protocols

(1)

The Authority may, in consultation with the Committee, from time

to time make protocols:

(a)

to implement the provisions for adjusting the cap on

diversions set out in Appendix 3;

(b) about calculating salinity debits and credits for the purposes

of clause 10;

(c)

defining valleys for the purposes of this Schedule and about

maintaining, crediting, debiting and giving directions for

releases to be debited to, valley accounts, pursuant to

clause 11;

(d) determining one or more conversion factors and exchange

rates; about applying and using any conversion factor or

exchange rate so determined; and defining trading zones, for

the purposes of clause 12;

(e)

about any matter referred to in clause 13 (Restrictions on

Transfers);

(f)

about any matter referred to in clause 15 (Procedures and

Principles for Transfers);

(g) about any matter referred to in clause 17 (Monitoring and

Reporting);

(h) to implement either or both of exchange rate trade and

tagged trade; and

(i)

implementing any resolution of the Ministerial Council

about transferring environmental entitlements.

Schedule 1 A mendments based on referrals of power

198 Water Amendment Bill 2008 No. , 2008

(2)

The Authority must notify each Contracting Government:

(a)

whenever it is considering making, amending, reviewing or

revoking a protocol; and

(b) of the subject matter of any proposed protocol, amendment,

review or revocation.

(3)

A Contracting Government may nominate a person with relevant

expertise and experience to give advice to the Authority in

preparing, amending, reviewing or revoking a protocol.

(4)

The Authority must consider any advice given by a person

nominated under sub-clause 6(3), before it makes, amends or

revokes a protocol.

(5)

A protocol made under this clause:

(a)

must, subject to clause 2, indicate whether it applies to

exchange rate trade, tagged trade or both; and

(b) must not be inconsistent with any provision of the

Agreement (including its Schedules) and is void to the extent

of any inconsistency.

(6)

The Authority may:

(a)

amend, review or revoke any protocol made under

sub-clause 6(1); and

(b) review any such protocol at the request of a Contracting

Government.

(7)

The Authority may not delegate any power conferred on it by

sub-clauses 6(1) and (6).

PART III -- MATTERS RELATING TO ADMINISTRATION OF

THE AGREEMENT

Adjustment of delivery of State entitlements

The Authority must, from time to time, adjust the delivery of State

entitlements under Part XII of the Agreement to take into account, and to

give effect to, transfers of entitlements and allocations between States, in

accordance with Appendix 2.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 199

Adjustment of cap on diversions

(1)

Subject to paragraph 16(7)(a), the Authority must, from time to

time, adjust the cap on diversions for each designated river valley

to reflect interstate and intervalley transfers of entitlements or

allocations under this Schedule, in order to ensure that diversions

within the Murray-Darling Basin do not exceed the total diversions

under baseline conditions referred to in Schedule E.

(2)

For the purpose of making any calculation under clause 12 of

Schedule E, the relevant annual diversion target for that year must

either be increased or reduced, as the case requires, by the volume

determined in accordance with Appendix 3.

Adjustment of State financial contributions

(1)

In every year, the Authority must, based on information contained

in the Transfer Register, calculate the amount by which any sum

payable by a State Contracting Government in any year under

Part IX of the Agreement, should be varied to reflect transfers of

entitlements made by exchange rate trade from river reaches

regulated by works subject to the Agreement, into or out of that

State in the preceding year and inform the Ministerial Council of

that amount for the purposes of clause 72 of the Agreement.

(2)

The Ministerial Council may add or subtract, as the case requires,

any amount determined under sub-clause 9(1) to or from the sum

payable by a State Contracting Government in the next following

year, under Part IX of the Agreement.

(3)

Despite the provisions of Part IX of the Agreement, a State

Contracting Government must pay any sum as varied in

accordance with sub-clause 9(2).

Note:

(a) Where an interstate transfer, made either by exchange rate trade or tagged

trade, relates to water in a tributary of the River Murray, the recovery of State

bulk water charges relating to that water is a matter for agreement between the

relevant States.

(b) Where tagged trade occurs, a transferee in the State of destination holds an

entitlement which continues to exist in the State of origin. A State of origin

might recover bulk water charges either directly from the holder of the

entitlement in the State of destination, or through the relevant water authority

in that State, as agreed between the parties.

Schedule 1 A mendments based on referrals of power

200 Water Amendment Bill 2008 No. , 2008

10. Accounting for salinity impacts

(1)

An entitlement or allocation can only be transferred under this

Schedule if the proposed transfer is consistent with Schedule B.

(2)

Consistently with the law of the relevant State, a licensing

authority within that State must attach such conditions to any

transfer into or out of that State which the licensing authority

considers necessary or desirable to ensure that the State meets its

obligations under Schedule B.

(3)

The Authority must attribute salinity credits and debits arising

from the dilution effects of interstate transfers of entitlements or

allocations to the State of origin and State of destination, in equal

shares and in accordance with any protocol made under paragraph

6(1)(b).

(4)

The Authority must attribute salinity credits and debits arising

from changes to salt accession attributable to any transfer of

entitlements or allocations, or changes to the use of water arising

from such transfers, to the State in which the change occurs and in

accordance with any protocol made under paragraph 6(1)(b).

PART IV -- OPERATIONAL PRINCIPLES AND

ADMINISTRATION

11. Delivery of water and valley accounts

(1)

The Authority must ensure that water made available in each valley

reflects the transfers of entitlements and allocations made under

this Schedule, in accordance with any protocol made under

paragraph 6(1)(c).

(2)

The valley accounts maintained under sub-clause 11(2) of the

former Schedule immediately prior to commencement of this

Schedule are continued in existence.

(3)

For the purpose of this clause, the Authority must maintain a valley

account referred to in sub-clause (2):

(a)

for each tributary in respect of which there are entitlements

or allocations which may be traded under this Schedule; and

(b) in accordance with any protocol made under paragraph

6(1)(c).

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 201

(4)

The Authority may:

(a)

in accordance with any protocol made under paragraph

6(1)(c), direct that water standing to the credit of a valley

account for any valley be used for any purpose to which the

Authority may have regard under sub-clause 98(3) or 98(4)

of the Agreement; and

(b) amend or cancel any such direction at any time.

(5)

A State Contracting Government must implement any direction

given under paragraph 11(4)(a) in accordance with any protocol

made under paragraph 6(1)(c).

(6)

With the consent of the State Contracting Government to whom a

direction is given under sub-clause 11(4), a direction may result in

a valley account being overdrawn.

12. Conversion factors and exchange rates

(1)

Subject to sub-clause 12(2), the Authority may, by a protocol made

under paragraph 6(1)(d), determine or alter one or more:

(a)

conversion factors to be applied when converting an

entitlement of one type into an entitlement of another type,

in the same valley; and

(b) exchange rates to be applied under this Schedule:

(i)

to any transfer of an entitlement by exchange rate

trade; and

(ii) to any transfer of an entitlement by tagged trade or to

any transfer of an allocation,

and must publish any such conversion factors and exchange

rates in such manner as it thinks fit.

(2)

An exchange rate referred to in subparagraph 12(1)(b)(ii) must

only be made to take into account either or both of:

(a)

any changes in distribution losses; and

(b) any differences in utilization,

resulting from the transfer.

(3)

A conversion factor and an exchange rate determined or altered by

the Authority operates prospectively and cannot be used to alter:

Schedule 1 A mendments based on referrals of power

202 Water Amendment Bill 2008 No. , 2008

(a)

a previous entry made in any valley account; or

(b) any previous adjustment made to State entitlements or the

cap on diversions, or the previous calculation of State

financial contributions,

under this Schedule.

(4)

A protocol referred to in sub-clause 12(1):

(a)

must specify how any conversion factor or exchange rate is

to be applied; and

(b) may establish one or more zones within which an exchange

rate will not be applied to specified types of entitlement; and

(c)

must attempt to minimise any adverse effect that any

conversion or any type of transfer may have on:

(i)

water users, other than the transferor or transferee; and

(ii) the environment; and

(d) may provide for taking account of:

(i)

any losses which may occur during transmission of an

entitlement; and

(ii) any change in the level of reliability of supply of an

entitlement resulting from the conversion or transfer;

and

(iii) the extent to which the volume of water represented

by an entitlement has been used; and

(iv) any adverse effect which the conversion or transfer

may have on the environment; and

(v)

any other matter which the Authority considers

appropriate.

(5)

Each State Contracting Government must ensure that any licensing

authority within the State applies any relevant conversion factor or

exchange rate determined under this clause, in accordance with any

protocol made under paragraph 6(1)(d).

13. Restrictions on transfers

(1)

Subject to sub-clause 13(4), a protocol made under paragraph

6(1)(e) may prohibit, restrict or regulate the transfer of a specified

type of entitlement.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 203

(2)

Without limiting sub-clause 13(1), a protocol:

(a)

must, subject to other provisions of this clause, facilitate the

transfer of entitlements or allocations between

hydrologically connected systems, in accordance with this

Schedule; and

(b) must be consistent with any principles relating to markets in,

and trading of, water entitlements and allocations, from time

to time adopted by the Ministerial Council; and

(c)

must not hinder the ability of the Authority to regulate and

manage the flow of water within the upper River Murray and

the River Murray in South Australia, in accordance with the

Agreement; and

(d) must not purport to affect or interfere with State

responsibilities for managing water resources, except as

provided for in the Agreement.

(3)

Until the Ministerial Council resolves otherwise an entitlement

must not be transferred into or out of the Lower Darling Valley.

(4)

A State Contracting Government may, consistently with the law of

that State, from time to time prohibit, restrict or regulate the

transfer of any type of entitlement or allocation in a way which is

consistent with any principles relating to markets in, and trading of,

water entitlements, from time to time adopted by the Ministerial

Council.

(5)

Each State Contracting Government must, consistently with the

law of that State, take such action within the State as may be

necessary to ensure that any prohibition, restriction or regulation

made or imposed by the Authority or the State Contracting

Government is complied with and observed by each authority and

other person in that State.

14. Environmental and supply considerations

(1)

The Authority must maintain a record of the environmental

assessment criteria and processes from time to time applied by

each Contracting Government in respect of applications to transfer

entitlements or allocations.

(2)

Each Contracting Government must:

Schedule 1 A mendments based on referrals of power

204 Water Amendment Bill 2008 No. , 2008

(a)

notify the Authority of any change to the environmental

assessment criteria and processes contained in the record

referred to in sub-clause 14(1) with respect to that

Government, as soon as practicable after that change is

made; and

(b) propose any consequential alterations to the record referred

to in sub-clause 14(1) which it considers necessary or

desirable.

(3)

Each Contracting Government must, by 31 July in every year, give

the Authority a report setting out all changes referred to in

paragraph 14(2)(a) with respect to that Government, made in the

previous year.

(4)

The Authority may, from time to time, amend the record referred

to in sub-clause 14(1) in any way it considers necessary or

desirable, in order to reflect the relevant environmental assessment

criteria and processes of a Contracting Government.

(5)

Each State Contracting Government must ensure that any licensing

authority within the State:

(a)

takes into account any policies from time to time adopted by

the Ministerial Council about:

(i)

managing environmental flows; and

(ii) managing the delivery of State entitlements, in the

light of limits to the capacity of the River Murray

system; and

(iii) any other matters relevant to the purposes of this

Schedule, when considering whether or not to approve

any application to transfer an entitlement or allocation

under this Schedule; and

(b) submits any such application to the relevant environmental

assessment criteria and processes from time to time set out

in the record referred to in sub-clause 14(1); and

(c)

decides whether or not to grant the application in accordance

with:

(i)

the policies referred to in paragraph 14(5)(a); and

(ii) the results of applying the criteria and processes

referred to in paragraph 14(5)(b); and

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Water Amendment Bill 2008 No. , 2008 205

(d) imposes comparable conditions about environmental matters

on any entitlement or allocation transferred into that State

under this Schedule as it would impose on an entitlement or

allocation granted or transferred within that State to use the

same amount of water for the same purpose at the same

location.

15. Procedures and principles for transfers

(1)

The Authority may, by a protocol made under paragraph 6(1)(f),

specify processes and principles to be followed by the Authority

and, consistently with State law, each State Contracting

Government and licensing authority, to record and to facilitate the

transfer of entitlements and allocations, subject to the other

provisions of this Schedule.

(2)

Each State Contracting Government must, consistently with the

law of that State, take such action within the State as may be

necessary to ensure that processes and principles referred to in this

Schedule and in any protocol made under paragraph 6(1)(f) are

applied and observed by each authority and other person in that

State.

(3)

Without limiting sub-clause 15(1), a protocol made under

paragraph 6(1)(f) may:

(a)

apply to:

(i)

interstate transfers;

(ii) intervalley transfers;

(iii) transfers made across the Barmah Choke; and

(b) specify procedures, which are consistent with State law, for:

(i)

ensuring, where appropriate, that an entitlement in a

State of origin is cancelled or extinguished before, or

at the same time as, an equivalent entitlement is

created in the State of destination;

(ii) processing applications to transfer entitlements and

allocations;

(iii) confirming the ability of the Authority to deliver

water pursuant to any proposed transfer;

(iv) notifying the Authority when a transfer has occurred;

and

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206 Water Amendment Bill 2008 No. , 2008

(c)

subject to clause 16, require the keeping of registers and

accounts of transfers.

16. Transfer Register

(1)

In this clause:

"base valley" means a valley referred to in sub-clause 3(2)

of Schedule E.

(2)

The transfer register kept under clause 16 of the former Schedule

immediately prior to commencement of this Schedule is continued

in existence.

(3)

The Authority must maintain the register referred to in sub-clause

(2) so that it sets out the following information with respect to

conversion of entitlements and each intervalley transfer of an

entitlement (and, if the Authority so resolves, each allocation)

occurring within the area referred to in clause 2:

(a)

The following information about the place of origin:

(i)

The volume in megalitres and type of any entitlement

converted into an entitlement of another type.

(ii) The volume in megalitres of any entitlement created

by such conversion, after applying the relevant

conversion factor, and the type of the new entitlement.

(iii) The volume in megalitres of any allocation or

entitlement transferred.

(iv) The identifying number of the allocation or

entitlement transferred.

(v)

The type of entitlement to which the transfer relates.

(vi) The base valley from which the transfer was made.

(vii) The designated river valley from which the transfer

was made.

(viii) The date on which either:

� the entitlement transferred was cancelled,

extinguished or suspended at the place of origin; or

� any allocation under an entitlement is permanently

made available in the State of destination; or

� the transfer of the allocation was authorised,

as a result of the transfer, as the case requires.

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(b) The following information about the place of destination:

(i)

The exchange rate applied to any transfer.

(ii) The volume in megalitres of the allocation or

entitlement transferred, after applying the relevant

exchange rate.

(iii) The type of entitlement into which the allocation or

entitlement transferred has been converted.

(iv) The base valley into which the transfer was made.

(v)

The designated river valley into which the transfer

was made.

(vi) The date upon which either:

� any new entitlement was created at the place of

destination; or

� the use of the transferred allocation was authorised,

as a result of the transfer, as the case requires.

(vii) The identifying number of any new entitlement.

(viii) If the transfer was made between States, an

identifying interstate transfer number, allocated to the

transfer by the Authority.

(c)

The effective date of the transfer, being the later of the dates

referred to in sub-paragraphs 16(3)(a)(viii) and 16(3)(b)(vi).

(4)

Pursuant to the obligations set out in paragraph 13(1)(c) of

Schedule E, each State Contracting Government must ensure that

the Authority promptly receives all such information relating to

transfers within, to or from the territory of that State, as may be

necessary to keep the Transfer Register up-to-date.

(5)

The Authority must, after the end of each year, arrange for an

independent auditor:

(a)

to examine whether there is any discrepancy between

information provided by each State Contracting Government

under sub-clause 16(4), information provided under clause 8

of Appendix 3 to this Schedule and information set out in the

Transfer Register; and

(b) to make recommendations to the Ministerial Council, on or

before September 30 in the following year, about any

amendment to the Transfer Register as the auditor thinks

desirable, in view of any such discrepancy.

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208 Water Amendment Bill 2008 No. , 2008

(6)

After considering any recommendation made by an independent

auditor under paragraph 16(5)(b), the Ministerial Council may

require the Authority to make any alteration to the Transfer

(7)

The Authority must recalculate:

(a)

any adjustment to the cap on diversions or any annual

diversion target, pursuant to clause 8; or

(b) any calculation pursuant to clause 9,

in respect of which relevant alteration has been made to the

Transfer Register under sub-clause 16(6).

17. Monitoring and reporting

(1)

Unless the Authority determines otherwise, by 30 June in every

year, commencing in 2007, each State Contracting Government

must, in accordance with any protocol made under paragraph

6(1)(g), prepare and give to the Authority a report on measures

taken in that State in the preceding year:

(a)

to manage any adverse environmental effects attributable to

interstate transfers of entitlement or allocations into and out

of that State; and

(b) to implement and monitor environmental assessment criteria

and procedures for the use of water transferred into the State

on land at its destination.

(2)

By 31 December in every year, the Authority must, in accordance

with any protocol made under paragraph 6(1)(g), prepare and give

to each State Contracting Government a report setting out the

following information for the preceding year:

(a)

the total volume of transfers of entitlements and allocations

into and out of each State; and

(b) the exchange rates applied to interstate transfers referred to

in paragraph 17(2)(a); and

(c)

any adjustment to the delivery of a States entitlement made

under clause 7; and

(d) any adjustment to the contribution of a State Contracting

Government approved by the Ministerial Council under

sub-clause 9(2); and

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Water Amendment Bill 2008 No. , 2008 209

(e)

any adjustment to the cap on diversions for a designated

river valley made under clause 8.

18. Review of interstate transfers

(1)

The Authority must prepare and give to the Ministerial Council and

the Basin Community Committee a report on:

(a)

the operation of this Schedule; and

(b) the markets for interstate transfers of entitlements and

allocations,

respectively, by 1 July 2010 and thereafter, either:

(c)

by the end of every third year; or

(d) in the case of the market for entitlements, promptly after at

least 8% of the volume of entitlements to use water for

irrigation in any area has been permanently transferred

interstate since the last report on that market was made

under this clause; or

(e)

in the case of the market for allocations, promptly after at

least 8% of the volume of allocations to use water for

irrigation in any area has been transferred interstate in the

preceding 12 months,

whichever is sooner.

(2)

A report referred to in sub-clause 18(1) must deal with delivery

losses, the accuracy or otherwise of water accounting measures and

any other matter which the Ministerial Council may, from time to

time direct, or which the Authority considers appropriate.

(3)

For the purpose of sub-clause 18(1), "area" means any irrigation

area administered by a relevant water authority, or any part of such

an area which is separately administered from other parts.

19. Dispute resolution

(1)

This clause applies to any dispute arising under this Schedule

between:

(a)

one or more of the State Contracting Governments; and

(b) one or more State Contracting Government and the

Authority,

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210 Water Amendment Bill 2008 No. , 2008

(c)

each of whom is a party for the purpose of this clause.

(2)

A dispute arises at the time when one party notifies the other party

or parties in writing that there is a dispute about a matter specified

in the notice.

(3)

If a dispute arises, the parties must seek, in good faith, to resolve

the dispute expeditiously by negotiations between them.

(4)

If a dispute is not resolved within 60 days, a party to the dispute

may give written notice to the other party or parties requiring the

matter to be referred to a dispute panel:

(a)

comprising at least two members agreed between the parties;

(b) if they cannot agree, comprising an equal number of

members appointed by each party to the dispute.

(5)

A dispute panel must meet within 7 days after it is appointed, or

within such other period agreed by the parties.

(6)

A unanimous decision of the dispute panel is binding upon the

parties.

(7)

If the dispute panel does not reach a unanimous decision:

(a)

any dispute to which the Authority is a party must be

referred to the Ministerial Council for resolution; and

(b) any dispute between State Contracting Governments may be

referred by a party to an arbitrator, as if it were a matter

requiring resolution by an arbitrator under clause 140 of the

Agreement.

(8)

Each party must meet its own costs in relation to any dispute.

(9)

Each party must contribute equally to the cost of any dispute panel

or arbitrator, unless the dispute panel or arbitrator, as the case

requires, directs otherwise.

(10) Each State Contracting Government undertakes to try to resolve

any difference between it and any other State Contracting

Government about a matter referred to in paragraph 5(1)(a), (b) or

(c), in accordance with sub-clauses 19(1) -- 19(6) before

consulting the Ministerial Council under sub-clause 5(1).

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212 Water Amendment Bill 2008 No. , 2008

SCHEDULE D -- APPENDIX 2 -- ADJUSTING DELIVERY OF STATE

ENTITLEMENTS UNDER PART XII OF THE AGREEMENT

(see clause 7)

PART I -- RULES WHICH APPLY AT ALL TIMES

Interstate transfers of entitlements

(1)

Subject to sub-clause 1(2), the Authority must adjust the delivery

of a State entitlement as a result of each interstate transfer of an

entitlement, in accordance with Rules 1-4:

(a)

in the case of exchange rate trade, by the volume of the

allocations which would have been made to that entitlement

in the State of origin in every year, if the entitlement had not

been transferred; and

(b) in the case of tagged trade, by the volume of water used by

the transferee in each year.

(2)

For the purpose of calculating the volume referred to in paragraph

1(1), for exchange rate trade, if the transferor seeks to transfer an

entitlement with lower reliability, the Authority must first apply the

relevant conversion factor that would be applied to convert that

entitlement into a type of entitlement with higher reliability, in the

valley of origin.

(3)

An adjustment made under sub-clause 1(1), must be calculated

from the effective date of the relevant transfer.

(4)

The Authority must alter its procedures for delivering State

entitlements to reflect any adjustments made under sub-clause 1(1),

in the manner set out in any protocol made under paragraph

6(1)(e).

Rule 1: Transfers into South Australia

The Authority must increase:

(a)

water deliveries to South Australia; and

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(b) the volume provided to South Australia by the State out of

which the transfer was made,

but must not increase the priority of delivering the volume

represented by any transfer.

Rule 2: Transfers out of South Australia

The Authority must decrease:

(a)

water deliveries to South Australia; and

(b) the volume provided to South Australia by the State into

which the transfer was made.

Rule 3: Transfers out of New South Wales into Victoria

The Authority must, in relation to Hume Reservoir:

(a)

decrease the volume which may be delivered to New South

Wales; and

(b) increase the volume which may be delivered to Victoria.

Rule 4: Transfers out of Victoria into New South Wales

The Authority must, in relation to Hume Reservoir:

(a)

decrease the volume which may be delivered to Victoria;

and

(b) increase the volume which may be delivered to New South

Wales.

Interstate transfers of allocations

(1)

The Authority must adjust a State entitlement as a result of each

interstate transfer of an allocation:

(a)

by the adjusted volume of that transfer; and

(b) in accordance with Rules 5 -- 8 set out below.

(2)

The Authority must alter its procedures for delivering State

entitlements to reflect any adjustment made under

sub-clause 2(1),in accordance with any protocol made under

paragraph 6(1)(f) of this Schedule.

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214 Water Amendment Bill 2008 No. , 2008

Rule 5: Transfers into South Australia

The Authority must increase:

(a)

water deliveries to South Australia; and

(b) the volume provided to South Australia by the State out of

which the transfer was made.

Rule 6: Transfers out of South Australia

The Authority must decrease:

(a)

water deliveries to South Australia; and

(b) the volume provided to South Australia by the State into

which the transfer was made.

Rule 7: Transfers out of New South Wales into Victoria

The Authority must, in relation to Hume Reservoir:

(a)

decrease the volume which may be delivered to New South

Wales; and

(b) increase the volume which may be delivered to Victoria.

Rule 8: Transfers out of Victoria into New South Wales

The Authority must, in relation to Hume Reservoir:

(a)

decrease the volume which may be delivered to Victoria;

and

(b) increase the volume which may be delivered to New South

Wales.

PART II -- RULES WHICH ONLY APPLY IN PERIODS WHEN

THERE IS SPECIAL ACCOUNTING

Accounting under clause 125 of the Agreement

During any period of special accounting, the Authority, in each month,

must increase and decrease the account kept for a State:

(a)

under paragraph 125(a) of the Agreement, in accordance

with Rules 9 and 10 set out below; and

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(b) under paragraph 125(b) of the Agreement, in accordance

with Rules 11 and 12 set out below.

Rule 9: New South Wales

The Authority must:

(a)

increase the account by the sum of adjustments made in that

month for New South Wales under rules 1, 3, 5 and 7; and

(b) decrease the account by the sum of adjustments made in that

month for New South Wales under rules 2, 4, 6 and 8.

Rule 10: Victoria

The Authority must:

(a)

increase the account by the sum of adjustments made in that

month for Victoria under rules 1, 4, 5 and 8; and

(b) decrease the account by the sum of adjustments made in that

month for Victoria under rules 2, 3, 6 and 7.

Rule 11: New South Wales

The Authority must:

(a)

increase the account by the sum of adjustments made in that

month for New South Wales under rules 2 and 6; and

(b) decrease the account by the sum of adjustments made in that

month for New South Wales under rules 1 and 5.

Rule 12: Victoria

The Authority must:

(a)

increase the account by the sum of adjustments made in that

month for Victoria under rules 2 and 6; and

(b) decrease the account by the sum of adjustments made in that

month for Victoria under rules 1 and 5.

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216 Water Amendment Bill 2008 No. , 2008

SCHEDULE D -- APPENDIX 3 -- ADJUSTING CAP ON DIVERSIONS

(see clause 8)

Definitions

For the purposes of this Appendix:

cap required, with respect to a unit of a type of entitlement, means the

product of that unit multiplied by the appropriate cap factor referred to in

paragraph 8(c).

effective date means the beginning of the year in which this Appendix

comes into effect.

PART I -- ADJUSTING FOR TRANSFERRED ALLOCATIONS

Adjusting cap for transferred allocations

The annual diversion target for a designated river valley, referred to in

sub-clause 12(1) of Schedule E, must either be increased or reduced, as

the case requires, by the volume of any interstate or intervalley transfers

of allocations into or out of that designated river valley in that year,

multiplied by the appropriate cap transfer rate set out in Table 1 of a

protocol made under paragraph 6(1)(a) of the Schedule.

PART II -- ADJUSTING FOR ENTITLEMENTS TRANSFERRED

BY TAGGED TRADE

Cap adjustment for tagged trade

The annual diversion target for a designated river valley referred to in

sub-clause 12(1) of Schedule E must be:

(a)

increased by the volume of water diverted in that designated

river valley in that year, which is attributable to entitlements

tagged to another designated river valley; and

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(b) reduced by the volume of water attributable to entitlements

tagged to that designated river valley, which is diverted in

any other designated river valley in that year.

PART III -- ADJUSTING FOR ENTITLEMENTS

TRANSFERRED BETWEEN 1 JULY 1994 AND THE EFFECTIVE

DATE, USING EXCHANGE RATES

Interim register

The Authority must establish and maintain an interim register which

records the volume of any entitlement transferred from a designated river

valley to another designated river valley during each year between 1 July

1994 and the effective date.

Adjusting annual diversion targets

Each year, the Authority must calculate the adjustment to the annual

diversion target for a designated river valley for transfers recorded on the

interim register referred to in clause 4, by:

(a)

multiplying the cumulative volume of every entitlement of a

particular type transferred into the designated river valley

between 1 July 1994 and the earlier of the beginning of that

year and the effective date, by the appropriate cap transfer

rate set out in Table 2 of a protocol made under paragraph

6(1)(a) of the Schedule; and

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218 Water Amendment Bill 2008 No. , 2008

(b) multiplying the cumulative volume of every entitlement of a

particular type transferred out of the designated river valley

between 1 July 1994 and the earlier of the beginning of that

year and the effective date, by the appropriate cap transfer

rate; and

(c)

subtracting the product of (b) from the product of (a).

PART IV -- ADJUSTING FOR ENTITLEMENTS

TRANSFERRED OR CONVERTED AFTER THE EFFECTIVE

DATE, USING EXCHANGE RATES

Object of Part

The object of this Part is, subject to sub-clause 8(1) of the Schedule, to

minimise the impact of transfers or conversion of entitlements on

entitlements held by third parties, by endeavouring to ensure that:

(a)

the proportion of the cap associated with each unit of a

particular type of entitlement remains the same after an

entitlement has been transferred or converted as it was

before that transfer or conversion; and

(b) the annual diversion target for each State and designated

river valley referred to in sub-clause 12(1) of Schedule E is

adjusted accordingly.

Operation of Part

This Part applies to entitlements transferred or converted after the

effective date.

Calculating increases in cap required

Based on information set out in the Transfer Register, the Authority must

make the following calculations for every year, in respect of each

designated river valley, as a consequence of transfers between that

designated river valley and every other designated river valley:

(a)

The volume of each type of entitlement into which former

entitlements were transferred or converted, as recorded

under sub-paragraphs 16(3)(b)(ii) and 16(3)(a)(ii) of this

Schedule.

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Water Amendment Bill 2008 No. , 2008 219

(b) The net increase in each type of entitlement, by

subtracting the volume of that type of entitlement recorded

under sub-paragraphs 16(3)(a)(iii) and 16(3)(a)(i) of this

Schedule from the volume of that type of entitlement

calculated under paragraph 8(a).

(c)

The net increase in the cap required for each type of

entitlement , by multiplying the result of the calculation in

paragraph 8(b) by the relevant cap factor set out in Table 3

of a protocol made under paragraph 6(1)(a) of the Schedule.

Adjusting annual diversion targets

(1)

The Authority must, in each year, alter each long-term diversion

cap to reflect the results of transferring entitlements, pursuant to

paragraph 10(2)(a) of Schedule E, by adjusting annual diversion

targets.

(2)

The Authority must adjust each annual diversion target by

following any protocol made by the Authority under paragraph

6(1)(a) of the Schedule, to implement the Stages set out below.

Stage 1

Adjust annual diversion targets, as far as possible by

allocating to the cap required in a designated river valley of

destination, so much of the volume of cap no longer required

in the designated river valley of origin as is required in the

designated river valley of destination. A separate calculation

must be made for the interaction between each designated

river valley and every other designated river valley, based on

information collated from the Transfer Register.

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220 Water Amendment Bill 2008 No. , 2008

Stage 2

Pool any cap surpluses and deficits calculated under Stage 1

in relation to each designated river valley, in order to reduce

any shortfalls in each designated river valley.

Where lower reliability entitlements have been converted to

higher reliability entitlements within a designated river

valley, the net effect of that conversion on the cap

attributable to that valley must be included in the pool.

However:

(a)

a shortfall within a designated river valley caused by such

conversions cannot be reduced by attributing a surplus

existing in another designated river valley; and

(b) the volume pooled with respect to a designated river valley

cannot exceed the sum of the deficits arising in other

designated river valleys, as a result of transfers between that

designated river valley and other designated river valleys.

Stage 3

(a)

Calculate any cap surplus resulting from Stage 2 for each

designated river valley.

(b) Then allocate any of that cap surplus that is attributable to

interstate transfers into or from that designated river valley

to the environment, by

(c)

reducing the annual diversion target for that designated river

valley by the portion of the surplus referred to in

paragraph (b).

The allocation referred to in paragraph (b) must only apply

in the year in which it is made and will not create an

entitlement to draw a comparable volume of water from any

storage in the Basin. Progressively reducing annual

diversion targets will, however, eventually allow more water

to flow downstream.

Stage 4

Calculate the adjustment to each annual diversion target for

each designated river valley by determining the sum of the

total adjustments made under Stages 1, 2 and 3.

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Water Amendment Bill 2008 No. , 2008 221

SCHEDULE E -- CAP ON DIVERSIONS

Purposes

The purposes of this Schedule are:

(a)

to establish long-term caps on the volume of surface water

used for consumptive purposes in river valleys within the

Murray-Darling Basin (including, without limitation, water

from waterways and distributed surface waters) in order to

protect and enhance the riverine environment; and

(b) to set out action to be taken by the Ministerial Council, the

Authority and State Contracting Governments to quantify

and comply with annual diversion targets; and

(c)

to prescribe arrangements for monitoring and reporting upon

action taken by State Contracting Governments to comply

with annual diversion targets.

Definitions

(1)

In this Schedule, except where inconsistent with the context:

"baseline conditions" means:

(a)

in the case of New South Wales and Victoria, means the

level of water resource development for rivers within the

Murray-Darling Basin as at 30 June 1994 determined by

reference to:

(i)

the infrastructure supplying water; and

(ii) the rules for allocating water and for operating water

management systems applying; and

(iii) the operating efficiency of water management

systems; and

(iv) existing entitlements to take and use water and the

extent to which those entitlements were used; and

(v)

the trend in the level of demand for water within and

from the Murray-Darling Basin

at that date; and

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222 Water Amendment Bill 2008 No. , 2008

(b) in the case of Queensland, means the conditions set out for

each river valley in the Resource Operation Plan first

adopted by the Government of Queensland in that river

valley and published in the Queensland Government

Gazette.

"Cap Register" means the Register referred to in

sub-clauses 13(7) and 13(8).

"designated river valley" means a river valley or water

supply system referred to in, or designated under,

sub-clause 3(1).

"diversions", with respect to a river valley, means the

volume of surface water used for consumptive purposes

determined in accordance with the formula entered in the

Diversion Formula Register for that river valley.

"Diversion Formula Register" means the Register referred

to in paragraph 4(1)(b).

"former Schedule" means Schedule F of the former

Agreement.

"historical data" means data relevant to the period from

1 July 1983 to 30 June 1994, or such other period as the

Authority may from time to time determine.

"river valley" means a river valley within the

Murray-Darling Basin referred to in sub-clause 3(2).

"water year" in relation to a river valley or a water supply

system means the relevant 12 month period applicable to the

allocation of water entitlements and measurement of

diversions in that river valley or water supply system.

(2)

In this Schedule:

(a)

a reference to the "Government of a State" includes a

reference to the Government of the Australian Capital

Territory;

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Water Amendment Bill 2008 No. , 2008 223

(b) a reference to a "State Contracting Government" includes a

reference to the Government of the Australian Capital

Territory;

(c)

a reference to "State" includes the Australian Capital

Territory.

River Valleys and Designated River Valleys

(1)

Subject to sub-clause 3(3), the river valleys or water supply

systems listed in Appendix 1 are "designated river valleys" for the

purposes of this Schedule.

(2)

Subject to sub-clause 3(3), the river valleys listed in Appendix 2

are "river valleys" for the purposes of this Schedule.

(3)

The Ministerial Council may, from time to time:

(a)

amend the description of:

(i)

any designated river valley described in Appendix 1;

(ii) any river valley in Appendix 2;

(b) designate, for the purposes of this Schedule, any river valley

or water supply system not referred to in Appendix 1; or

(c)

add any river valley to those set out in Appendix 2.

Diversion Formula Register

(1)

The Authority must:

(a)

determine a formula for calculating diversions within each

river valley for the purposes of this Schedule; and

(b) maintain a Diversion Formula Register which records each

formula determined under paragraph (a) and the river valley

to which the formula relates.

(2)

The Authority or States, as may be appropriate, must use the

formula entered in the Diversion Formula Register with respect to

a river valley for the purpose of:

(a)

developing or approving any analytical model under

clause 11;

(b) making any calculation under clause 12;

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224 Water Amendment Bill 2008 No. , 2008

(c)

preparing any report required under clause 13; and

(d) maintaining the Cap Register.

(3)

The Authority may from time to time amend:

(a)

any formula determined under paragraph 4(1)(a); and

(b) any entry in the Diversion Formula Register.

Long-term diversion cap for New South Wales

(1)

The Government of New South Wales must ensure that diversions

within each designated river valley in New South Wales do not

exceed diversions under baseline conditions in that designated river

valley, as determined by reference to the model developed under

sub-clause 11(4).

(2)

In calculating baseline conditions for the Border Rivers, allowance

must be made for such annual volume as the Ministerial Council

may, from time to time, determine in view of the special

circumstances applying to Pindari Dam.

Long-term diversion cap for Victoria

(1)

The Government of Victoria must ensure that diversions within

each designated river valley in Victoria (including the upper River

Murray) do not exceed diversions under baseline conditions in that

designated river valley, as determined by reference to the model

developed under sub-clause 11(4).

(2)

In calculating baseline conditions for either or both of the

Goulburn/Broken/Loddon water supply system and the Murray

Valley water supply system, allowance must be made for an

additional 22 GL per year, or such other annual volume as the

Ministerial Council may, from time to time, determine in view of

the special circumstances applying to Lake Mokoan.

Long-term diversion cap for South Australia

(1)

The Government of South Australia must ensure that diversions

from the River Murray within South Australia:

(a)

for water supply purposes delivered to Metropolitan

Adelaide and associated country areas through the Swan

Reach-Stockwell, Mannum-Adelaide and Murray

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Water Amendment Bill 2008 No. , 2008 225

Bridge-Onkaparinga pipeline systems do not exceed a total

diversion of 650 GL over any period of 5 years;

(b) for Lower Murray Swamps irrigation do not exceed 94.2 GL

per year;

(c)

for water supply purposes for Country Towns do not exceed

50 GL per year; and

(d) for all other purposes do not exceed a long-term average

annual diversion of 449.9 GL.

(2)

The Government of South Australia must ensure that:

(a)

no part of any entitlement created in South Australia with

respect to the diversion referred to in paragraph 7(1)(a) is

either used, or transferred for use, for any purpose other than

use in Metropolitan Adelaide and associated country areas;

and

(b) at least 22.2 GL of the diversion referred to in paragraph

7(1)(b) is reserved for environmental purposes and is not

transferred,

unless the Ministerial Council determines otherwise.

(3)

If the Government of South Australia supplies any of the

diversions referred to in paragraph 7(1)(d) through the Swan

Reach-Stockwell, Mannum-Adelaide and Murray

Bridge-Onkaparinga pipeline systems in any year, it must:

(a)

record the volume of water so delivered for that purpose in

that year; and

(b) account for that volume against the long-term average

annual diversion referred to in paragraph 7(1)(d), when

monitoring and reporting to the Authority under clause 13.

Long-term diversion cap for Queensland

The Government of Queensland must ensure that diversions from each

designated river valley in Queensland do not exceed diversions under

baseline conditions in that designated river valley, as determined by

reference to the model determined under sub-clause 11(4).

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Long-term diversion cap for the Australian Capital Territory

(1)

The Government of the Australian Capital Territory must ensure

that diversions from the designated river valley in the Australian

Capital Territory do not exceed 40 GL per annum (being 42 GL

minus 2GL saving allocated to the Living Murray), varied as

required by sub-clause (2).

(2)

The long-term diversion cap referred to in sub-clause (1) is to be

annually adjusted:

(a)

for the prevailing climate during the water year by reference

to the model developed under sub-clause 11(4); and

(b) to account for growth in population, in accordance with the

following formula:

0.75

multiplied by:

2006/07 per capita consumption of the population of

Canberra and Queanbeyan

multiplied by:

the difference between the population of Canberra and

Queanbeyan in 2006/07 and the population of Canberra and

Queanbeyan for each year in consideration.

(3)

The Government of the Australian Capital Territory must ensure

that no water or water entitlement that is used for urban purposes

will be transferred for use outside the Australian Capital Territory

unless that water or water entitlement has been transferred for use

within the Australian Capital Territory from another State.

(4)

If demand for water for industrial uses or uses by the

Commonwealth grows beyond the level of demand in 2006/07, that

growth in demand will be met by transferring water or water

entitlements from another State.

(5)

The Authority must, for the purposes of maintaining the Cap

account 107 GL of cumulative Cap credit existing at the end of

2006/07.

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Water Amendment Bill 2008 No. , 2008 227

10. Power of Authority to alter long-term diversion caps

(1)

Subject to sub-clause 10(2) the Ministerial Council may, on the

recommendation of the Committee, make protocols determining

how the Authority may alter any long-term diversion cap referred

to in this Schedule.

(2)

The Authority, from time to time:

(a)

must alter a long-term diversion cap to reflect the result of

transferring water entitlements or allocations within a State

or between States, in accordance with any protocols

established under Schedule D; and

(b) may only alter a long-term diversion cap to account for

environmental water under Cap in accordance with a

protocol made under sub-clause 10(1).

11. Developing Analytical Models

(1)

The Authority must develop analytical models for determining the

annual diversion targets for the upper River Murray.

(2)

Subject to sub-clause 11(1), the Governments of New South

Wales, Victoria, Queensland and the Australian Capital Territory

must each develop analytical models for determining the annual

diversion target for each designated river valley within the territory

of that State.

(3)

The Government of South Australia must develop analytical

models for determining the annual diversion target for diversions

referred to in paragraph 7(1)(d).

(4)

An analytical model developed under this clause:

(a)

must simulate the long-term diversion cap in the relevant

designated river valley; and

(b) must be tested against relevant historical data to determine

the accuracy of the model in estimating the annual diversion;

and

(c)

must be approved by the Authority before it is used to

determine an annual diversion target under this Schedule;

and

(d) may, from time to time, be modified in such ways as the

Authority may approve; and

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228 Water Amendment Bill 2008 No. , 2008

(e)

must be used to determine the average annual diversion

under the conditions of the relevant long-term diversion cap

determined under this Schedule for either:

(i)

the period between the start of the 1891 water year

and the end of the 1997 water year; or

(ii) such other period as may be approved by the

Authority.

(5)

The Authority may only approve an analytical model or a

modification to an analytical model if the Authority considers that

the model, when approved or modified, will fairly determine the

relevant annual diversion target given the climatic conditions

experienced in any year.

12. Calculation of annual diversion targets

(1)

Within two months after the end of the relevant water year and

using the analytical models developed and approved under

clause 11:

(a)

the Authority must calculate the annual diversion targets for

New South Wales and Victoria for that year for the upper

River Murray; and

(b) subject to paragraph (a), the Governments of New South

Wales, Victoria, South Australia, Queensland and the

Australian Capital Territory must, for each designated river

valley within the territory of that State, calculate the annual

diversion target for that year.

(2)

The Authority must promptly inform the Governments of New

South Wales and Victoria of the results of every calculation made

under paragraph 12(1)(a) with respect to the upper River Murray.

(3)

The Government of New South Wales, Victoria, South Australia,

Queensland and the Australian Capital Territory, respectively,

must each promptly inform the Authority of the results of every

calculation made by it under paragraph 12(1)(b).

13. Monitoring and Reporting

(1)

Each State Contracting Government must, for each water year and

in relation to each river valley specified in Appendix 2 within its

territory, monitor and report to the Authority upon:

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(a)

diversions made within and to; and

(b) water entitlements, announced allocations of water and

declarations which permit the use of unregulated flows of

water within; and

(c)

trading of water entitlements within, to or from,

the territory of that State in that water year.

(2)

Each State Contracting Government must, for each water year and

in relation to each designated river valley within its territory,

monitor and report to the Authority upon:

(a)

the compliance by that State with each relevant annual

diversion target calculated under this Schedule for that water

year; and

(b) such actions which the State proposes to take to ensure that

it does not exceed the annual diversion targets calculated

under this Schedule for every ensuing water year.

(3)

For the purpose of sub-clauses 13(1) and (2) the expression "river

valley within its territory" in relation to Victoria, includes that

portion of the upper River Murray forming the border between

Victoria and New South Wales.

(4)

A report under sub-clause 13(1) or (2) must be given to the

Authority within four months after the end of each relevant water

year or by such other time as the Authority may determine.

(5)

On the basis of the calculations referred to in sub-clause 12(1) and

reports given to it under sub-clauses 13(1) and (2) the Authority:

(a)

must, in relation to each State Contracting Government,

produce a water audit monitoring report which includes

information about that Governments compliance with the

annual diversion target calculated for each designated river

valley in the territory of that State and for the whole of the

State in the relevant water year; and

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230 Water Amendment Bill 2008 No. , 2008

(b) may publish any such report, or a summary thereof, in such

manner as it may determine.

(6)

A water audit monitoring report under sub-clause 13(4) must be

produced by 31 December following the conclusion of each

relevant water year, or by such other time as the Authority may

determine.

(7)

The Register maintained under sub-clause 13(7) of the former

Schedule is continued in existence in the form in which it was held,

and containing the information it contained, immediately prior to

commencement of this Schedule until altered by the Authority in

accordance with sub-clause (8).

(8)

The Authority must maintain the Cap Register referred to in

sub-clause 13(7) so that it records:

(a)

for each designated river valley; and

(b) for each State,

the cumulative difference between actual annual diversions and the

annual diversion targets calculated under this Schedule.

(9)

The Cap Register must:

(a)

for New South Wales, Victoria and South Australia, include

information for every water year concluding after

1 November 1997; and

(b) for Queensland, include information about each designated

river valley in every water year commencing after the

Resource Operations Plan first adopted by the Government

of Queensland for that designated river valley is published in

the Queensland Government Gazette; and

(c)

for the Australian Capital Territory, include information

about its designated river valley in every water year; and

(d) if cumulative actual diversions for any designated river

valley or for any State are less than the cumulative annual

diversion targets calculated under this Schedule, as the case

requires, record the difference as a credit; and

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Water Amendment Bill 2008 No. , 2008 231

(e)

if cumulative actual diversions for any designated river

valley or for any State are greater than the cumulative annual

diversion targets calculated under this Schedule, as the case

requires, record the difference as a debit.

(10) The Authority must include a report on the operation of this

Schedule in any report made to the Ministerial Council under

clause 85 of the Agreement.

14. Appointment of Independent Audit Group

(1)

The Authority must appoint an Independent Audit Group for the

purposes of this Schedule.

(2)

A person who was appointed to the Independent Audit Group

under the former Schedule is taken to have been appointed by the

Authority for the purposes of this clause, on the conditions and for

the term specified in the appointment under the former Schedule.

15. Annual audit by the Independent Audit Group

(1)

The Independent Audit Group must, until 31 December 2009,

annually audit the performance of each State Contracting

Government in implementing the long-term diversion cap in each

water year which concludes on or between 1 June 1999 and

1 November 2009.

(2)

The Authority may direct the Independent Audit Group to audit the

performance of any State Contracting Government in

implementing the long-term diversion cap in any water year

concluding after 1 November 2009.

(3)

The Independent Audit Group must report to the Authority on any

audit conducted under this clause.

16. Power to require a special audit of a designated river valley

If, after receiving a report from a State Contracting Government under

sub-clause 13(2) for any year, the Authority calculates that either:

(a)

the diversion for water supply to Metropolitan Adelaide and

associated country areas over the last five years has

exceeded 650 GL; or

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232 Water Amendment Bill 2008 No. , 2008

(b) the diversion in the Warrego, Paroo, Moonie or Nebine

designated river valley has exceeded the annual diversion

target for that valley, determined under paragraph 12(1)(b);

(c)

the cumulative debit recorded in the Cap Register exceeds

20 % of the average annual diversion determined under

paragraph 11(4)(e) for a particular designated river valley

within that State,

the Authority must direct the Independent Audit Group to conduct a

special audit of the performance of that State Contracting Government in

implementing the long-term diversion cap in the relevant designated river

valley.

17. Special audit by Independent Audit Group

(1)

In conducting a special audit under clause 16, the Independent

Audit Group must consider:

(a)

data on diversions and annual diversion targets recorded on

the Cap Register; and

(b) data submitted by the relevant State Contracting

Government, including, for example, data about areas under

irrigation, storage capacities, crop production, irrigation

technology and the conjunctive use of groundwater in the

designated river valley; and

(c)

the impact that policies implemented by the State

Contracting Government may have on the expected pattern

of annual diversions; and

(d) whether the diversion for all years on the Cap Register

exceeds the diversion expected under the long-term

diversion cap for those years, and

(e)

any other matter which the Independent Audit Group

considers relevant.

(2)

The Independent Audit Group must:

(a)

determine whether the long-term diversion cap has been

exceeded in the designated river valley; and

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(b) report to the Authority on the special audit and advise the

Authority of its determination within six months after a

direction given under clause 16.

18. Declaration that diversion cap has been exceeded

If the Authority receives a report under sub-clause 17(2) which

determines that a State has exceeded the long-term diversion cap in a

designated river valley, the Authority must:

(a)

forthwith declare that the State has exceeded the

Murray-Darling Basin diversion cap; and

(b) report the matter to the next meeting of the Ministerial

Council.

19. Advice to Ministerial Council on remedial actions

(1)

The Government of a State referred to in paragraph 18(a) must

report to the next Ministerial Council after a declaration is made

under that paragraph, setting out:

(a)

the reasons why diversions exceeded the Murray-Darling

Basin diversion cap; and

(b) action taken, or proposed to be taken by it to ensure that

cumulative diversions recorded in the Cap Register are

brought back into balance with the cap; and

(c)

the period within the relevant model referred to in clause 11

predicts that the cumulative diversions recorded in the Cap

(2)

The Government of a State that has been required to report to the

Ministerial Council under sub-clause 19(1) must report to each

subsequent meeting of the Ministerial Council on action taken, or

proposed to be taken by it to ensure that cumulative diversions

recorded in the Cap Register are brought back into balance with the

cap, until the Authority revokes a declaration pursuant to

sub-clause 19(3).

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234 Water Amendment Bill 2008 No. , 2008

(3)

When the Authority is satisfied that a State in respect of which a

declaration has been made under paragraph 18(a) has brought the

cumulative diversions recorded in the Cap Register back into

balance with the cap and is once more complying with the

Murray-Darling Basin diversion cap in all respects, it must:

(a)

revoke the declaration; and

(b) report that fact to the next meeting of the Ministerial

Council.

SCHEDULE E - APPENDIX 1 -- DESIGNATED RIVER VALLEYS

New South Wales

The New South Wales portion of the Border Rivers catchment, excluding

the portion of the Gil Gil Creek below the Carole Creek confluence and

the Boomi River below the Gil Gil Creek confluence.

The New South Wales portion of the following catchments: Moonie, Big

Warrnambool, the Culgoa/Birrie/Bokhara/Narran, Warrego, Paroo and

Nebine.

Gwydir catchment, including the portion of the Gil Gil Creek below the

Carole Creek confluence and the Boomi River below the Gil Gil Creek

confluence.

Namoi catchment.

The Macquarie/Castlereagh/Bogan catchments.

The Barwon/Upper Darling river system and the Lower Darling river

system, from the furthest upstream reach of the Menindee Lakes to the

furthest upstream reach of the Wentworth Weir Pool.

Lachlan catchment.

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Gwydir catchment, including the portion of Gil Gil Creek below the

Carole Creek confluence and the Boomi River below the Gil Gil Creek

confluence.

Namoi catchment.

The Macquarie/Castlereagh/Bogan water catchments.

The Barwon/Upper Darling river system.

Lower Darling river system from the furthest upstream reach of the

Menindee Lakes to the furthest upstream reach of the Wentworth Weir

Pool.

Lachlan catchment.

Murrumbidgee catchment excluding that part of the Murrumbidgee River

that flows through the Australian Capital Territory, its sub-catchments in

that Territory and the Canberra Water Supply System.

The New South Wales portion of the Murray Valley including the portion

of the Lower Darling influenced by the Wentworth Weir Pool.

Queensland

The portion of the Condamine and Balonne catchments in Queensland.

The portion of the Border Rivers catchment in Queensland.

The portion of the Moonie catchment in Queensland.

The portion of the Warrego catchment in Queensland.

The portion of the Paroo catchment in Queensland.

The portion of the Nebine catchment in Queensland.

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240 Water Amendment Bill 2008 No. , 2008

(b) a bulk entitlement granted under the Water Act 1989 (Vic)

that includes conditions relating to environmental purposes,

in both cases comprising a volume of water derived from either or

both of Water Savings and Water Entitlements;

(4)

"Goulburn River System" means the Broken, Goulburn,

Campaspe and Loddon Rivers and the water supply systems

supplied by those rivers;

(5)

"Licensee" means the licensee under the Snowy Water Licence;

(6)

"Long Term Diversion Cap" means the long term diversion cap

for the State of New South Wales or the State of Victoria under

clauses 5 and 6 respectively of Schedule E;

(7)

"Lower Darling River System" means the Darling River and its

anabranch system from the upstream extent of the Menindee Lakes

Storage and downstream and the water supply systems supplied by

that River;

(8)

"Month" means calendar month and "Monthly" means each

calendar month;

(9)

"Mowamba Borrowings Account" means the water account to be

maintained by the Licensee under the Snowy Water Licence to

account for flows made under the Snowy Water Licence from the

Mowamba River and Cobbon Creek in the first three years after the

Corporatisation Date;

(10) "Murrumbidgee River System" means the Murrumbidgee River

and the water supply systems supplied by that river;

(11) "Relaxation Volume" has the same meaning as in the Snowy

Water Licence as at the Corporatisation Date;

(12) "Reliability" with respect to a supply of water means the statistical

probability of being able to supply a particular volume in any

Water Year;

(13) "Required Annual Release" has the same meaning as in the

Snowy Water Licence taken as a whole as at the Corporatisation

Date. For the avoidance of doubt, "Required Annual Release" is

not a reference to "Agreed Annual Release" under that Licence and

a change to the Snowy Water Licence after the Corporatisation

Date will not affect the calculation of Required Annual Releases

for the purposes of this Schedule;

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Water Amendment Bill 2008 No. , 2008 241

(14) "Required Annual Release Shortfall" means, in any Water Year,

the volume by which the Required Annual Release from the

Snowy-Murray Development in that Water Year exceeds the actual

release from the Snowy Scheme to the catchment of the River

Murray upstream of Hume Dam in that Water Year;

(15) "River Murray Above Target Releases" means, in any Water

Year, water that is released from the Snowy Scheme to the

catchment of the River Murray upstream of Hume Dam in excess

of the Required Annual Release from the Snowy-Murray

Development in that Water Year;

(16) "River Murray Annual Allocation" with respect to each Water

Year means the annual allocation from the River Murray

Apportioned Entitlement determined by New South Wales;

(17) "River Murray Apportioned Entitlement" means the volume of

water from the Environmental Entitlements that is apportioned to

the River Murray Increased Flows by New South Wales;

(18) "River Murray Increased Flows" means releases of water from

major storages made by the Authority in accordance with Part V of

this Schedule;

(19) "River Murray Increased Flows Accounts" means the water

accounts to be maintained by the Authority under clause 21 of this

Schedule;

(20) "River Murray Increased Flows in Authority Storages

Account" means the water account to be maintained by the

Authority under paragraph 21(1)(b) of this Schedule;

(21) "River Murray System" means the aggregate of:

(a)

the River Murray;

(b) all tributaries entering the River Murray upstream of Doctors

Point;

(c)

the Ovens River; and

(d) the Lower Darling River System;

(22) "Seasonal Availability" with respect to the water to which an

entitlement refers means:

(a)

for that part of the entitlement whose availability is

determined by reference to seasonal allocations: the final

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242 Water Amendment Bill 2008 No. , 2008

seasonal allocation announcement of the relevant State

during the previous Water Year; and

(b) for that part of the entitlement whose availability is

determined by reference to the entitlement of South

Australia: the allocated volume received during the previous

Water Year by South Australia as a proportion of its

entitlement during that Water Year under this Agreement;

(23) "Snowy Montane Rivers External Increased Flows" means

releases of water made by the Licensee to montane rivers under the

environmental flow requirements of the Snowy Water Licence

which would have flowed through either:

(a)

the Murray 1 Power Station in the case of the

Snowy-Murray Development; or

(b) Jounama Pondage in the case of the Snowy-Tumut

Development,

if it were not released for environmental purposes;

(24) "Snowy-Murray Development" means the component of the

Snowy Scheme comprising works that regulate the waters of the

Upper Snowy River, the Geehi River and Bogong Creek;

(25) "Snowy-Murray Development Annual Allocation" means the

annual allocation for any Water Year for the Snowy-Murray

Development determined by New South Wales by reference to the

Seasonal Availability of the water contained in the Snowy-Murray

Development Designated Entitlement;

(26) "Snowy-Murray Development Designated Entitlement" means

that part of the Environmental Entitlements designated against the

Snowy-Murray Development by New South Wales;

(27) "Snowy-Murray Development (River Murray) Environmental

Entitlements" means both:

(a)

a category of environmental water referred to in section 8 of

the Water Management Act 2000 (NSW); and

(b) a bulk entitlement granted under the Water Act 1989 (Vic)

that includes conditions relating to the protection of the

environment,

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Water Amendment Bill 2008 No. , 2008 243

in both cases comprising a volume of water derived from either or

both of Water Savings and Water Entitlements sourced from the

River Murray System or the Goulburn River System;

(28) "Snowy Notional Spill" means:

(a)

in the case of the Snowy-Murray Development: the

calculated active volume of water belonging to the

Snowy-Murray Development stored in Eucumbene

Reservoir exceeding 2,019 GL and accounted as a loss from

the Snowy-Murray Development and a gain to the

Snowy-Tumut Development;

(b) in the case of Snowy-Tumut Development: the calculated

active volume of water belonging to the Snowy-Tumut

Development stored in Eucumbene Reservoir exceeding

2,348 GL and accounted as a loss from the Snowy-Tumut

Development and a gain to the Snowy-Murray

Development;

(29) "Snowy River" means the Snowy River downstream of Jindabyne

Dam;

(30) "Snowy River Annual Allocation" means the annual allocation

from the Snowy River Apportioned Entitlement for any Water

Year, determined by New South Wales;

(31) "Snowy River Apportioned Entitlement" means the volume of

water from the Environmental Entitlements apportioned to

environmental flows from the Snowy Scheme to the Snowy River,

by New South Wales;

(32) "Snowy Scheme" means the dams, tunnels, power stations,

aqueducts and other structures that comprise the Snowy-Murray

Development and the Snowy-Tumut Development, that together

are known as the Snowy Mountains Hydro-electric Scheme;

(33) "Snowy-Tumut Development" means the component of the

Snowy Scheme comprising works that regulate the waters of the

Eucumbene River, the Tooma River, the Upper Murrumbidgee

River and the Upper Tumut River;

(34) "Snowy-Tumut Development Annual Allocation" with respect

to each Water Year means the annual allocation for the

Snowy-Tumut Development determined by New South Wales by

reference to the Seasonal Availability of the water contained in the

Snowy-Tumut Development Designated Entitlement;

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244 Water Amendment Bill 2008 No. , 2008

(35) "Snowy-Tumut Development Designated Entitlement" means

that part of the Environmental Entitlements designated against the

Snowy-Tumut Development by New South Wales;

(36) "Snowy Water Licence" means the licence issued under Part 5 of

the Snowy Hydro Corporatisation Act 1997 (NSW);

(37) "Strategy" means the strategy for retaining and releasing River

Murray Increased Flows referred to in clause 20 of this Schedule;

(38) "Translation Factors" means the translation factors used to

convert Water Savings and Water Entitlements into an

Environmental Entitlement with specified Reliability;

(39) "Upper Snowy River" means the Snowy River upstream of

Jindabyne Dam (including the Mowamba River and the Cobbon

Creek) but excluding the Eucumbene River;

(40) "Water Entitlement" means:

(a)

an access licence granted under the Water Management Act

2000 (NSW); and

(b) a water right, licence to take and use water or bulk

entitlement under the Water Act 1989 (Vic) together with

any transferable allocation of sales water made to the holder

of such a water right or licence,

in either case purchased for the purpose of achieving either or both

of:

(c)

environmental flows from the Snowy Scheme; and

(d) River Murray Increased Flows;

(41) "Water Market" means, with respect to a Water Entitlement, the

market from which the relevant Water Entitlement is drawn;

(42) "Water Savings" means the volume of water saved through one or

more projects that saves water:

(a)

by reducing transmission losses, evaporation or system

inefficiencies; or

(b) by achieving either or both of water management and

environmental improvements,

(c)

for diversions from the River Murray System and either or

both of Murrumbidgee River System and the Goulburn

River System for the purpose of achieving:

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Water Amendment Bill 2008 No. , 2008 245

(d) environmental flows from the Snowy Scheme; and

(e)

River Murray Increased Flows;

(43) "Water Year" means the period of 12 Months commencing on

1 May in each year.

PART II -- CALCULATING WATER VOLUMES

The Snowy Scheme And The River Murray

(1)

In this Agreement, "Water Available to the Snowy-Murray

Development" means:

Water of the Upper Snowy River regulated by the Snowy

Scheme

PLUS water of the Geehi River and Bogong Creek regulated

by the Snowy Scheme

PLUS any Snowy Notional Spill from the Snowy-Tumut

Development to the Snowy-Murray Development

PLUS the transfer from the Snowy-Tumut Development to

the Snowy-Murray Development of the Snowy-Tumut

Development Annual Allocation

PLUS 4�5 GL per Water Year transferred from the

Snowy-Tumut Development to the Snowy-Murray

Development

PLUS half of the balance of the Mowamba Borrowing

Account

MINUS Snowy Notional Spill from the Snowy-Murray

Development to the Snowy-Tumut Development.

(2)

In this Agreement, "Net Snowy-Murray Development

Diversions to the River Murray" means the volume of water

calculated as follows:

Water Available to the Snowy-Murray Development

released by the Snowy Scheme to the catchment of the River

Murray upstream of Hume Dam

MINUS the water of the Tooma River regulated by the

Snowy Scheme

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246 Water Amendment Bill 2008 No. , 2008

MINUS the natural flows of the Geehi River and Bogong

Creek regulated by the Snowy Scheme.

(3)

In this Agreement, "Murray to Murrumbidgee Inter-Valley

Transfer" means the volume of Water Available to the

Snowy-Murray Development released by the Snowy Scheme to the

catchment of the Murrumbidgee River.

The Snowy Scheme And The Murrumbidgee River

(1)

In this Agreement, "Water Available to the Snowy-Tumut

Development" means:

Water of the Eucumbene River, the Tooma River, the Upper

Murrumbidgee River and the Upper Tumut River regulated

by the Snowy Scheme

PLUS any Snowy Notional Spill from the Snowy-Murray

Development to the Snowy-Tumut Development

MINUS half of the balance of the Mowamba Borrowings

Account

MINUS any Snowy Notional Spill from the Snowy-Tumut

Development to the Snowy-Murray Development

MINUS the transfer from the Snowy-Tumut Development to

the Snowy-Murray Development of the Snowy-Tumut

Development Annual Allocation

MINUS 4�5 GL per Water Year transferred from the

Snowy-Tumut Development to the Snowy-Murray

Development.

(2)

In this Agreement, "Murrumbidgee to Murray Inter-Valley

Transfer" means the volume of Water Available to the

Snowy-Tumut Development released by the Snowy Scheme to the

catchment of the River Murray upstream of Hume Dam.

Excess Snowy River Releases

In this Agreement, "Excess Snowy River Releases" means the greater of

zero and the volume of water calculated as follows:

The regulated releases made to the Snowy River in the

relevant Water Year, measured immediately below the

confluence of the Snowy River and the Mowamba River

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 247

MINUS 9 GL

MINUS the Snowy River Annual Allocation in the relevant

Water Year

MINUS the change in the balance of the Mowamba

Borrowings Account during the relevant Water Year.

Snowy River Release Shortfalls

In this Agreement, "Snowy River Release Shortfalls" means the greater

of zero and the volume of water calculated as follows:

The Snowy River Annual Allocation in the relevant Water

Year

PLUS 9 GL

PLUS the change in the balance of the Mowamba

Borrowings Account from the commencement to the end of

the relevant Water Year

MINUS the regulated releases made to the Snowy River in

the relevant Water Year, measured immediately below the

confluence of the Snowy River and the Mowamba River.

Accounting For Water Releases

For the purposes of this Agreement, water releases from the

Snowy-Murray Development to the catchment of the River Murray

upstream of Hume Dam are to be accounted as:

(1)

water releases as at Murray 1 Power Station; and

(2)

any water that would have passed through the Murray 1 Power

Station but does not:

(a)

for operational reasons; or

Schedule 1 A mendments based on referrals of power

248 Water Amendment Bill 2008 No. , 2008

(b) because it is released from the Snowy Scheme as Snowy

Montane Rivers External Increased Flows,

and that flows into the catchment of the River Murray upstream of

Hume Dam.

PART III -- WATER ACCOUNTING

Entitlements Of New South Wales And Victoria To Use Water

The volume of water referred to in paragraph 94(1)(e) of the Agreement

is calculated as follows:

The Net Snowy-Murray Development Diversions to the

River Murray

PLUS Murray to Murrumbidgee Inter-Valley Transfers

PLUS the Required Annual Release Shortfall

PLUS the Snowy-Murray Development Annual Allocation

PLUS Excess Snowy River Releases in excess of the

volume of the Snowy River Release Shortfall in the previous

Water Year

MINUS at the discretion of the Authority, Murrumbidgee to

Murray Inter-Valley Transfers

MINUS the Required Annual Release Shortfall from the

previous Water Year

MINUS River Murray Above Target Releases allocated to

the River Murray Increased Flows received by Hume

Reservoir.

Water Estimated To Be Under The Control Of The Authority

Water referred to in paragraph 101(e) of the Agreement is estimated as

follows:

The Net Snowy-Murray Development Diversions to the

River Murray

PLUS Murray to Murrumbidgee Inter-Valley Transfers

PLUS the Required Annual Release Shortfall

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 249

PLUS the Snowy-Murray Development Annual Allocation

PLUS Excess Snowy River Releases in excess of the

volume of the Snowy River Release Shortfall in the previous

Water Year

MINUS at the discretion of the Authority, Murrumbidgee to

Murray Inter-Valley Transfers

MINUS the Required Annual Release Shortfall from the

previous Water Year

MINUS River Murray Above Target Releases allocated to

the River Murray Increased Flows received by Hume

Reservoir,

in each case before the end of the following May.

10. Allocation of Water to New South Wales and Victoria

The volume of water referred to in paragraph 106(1)(b) of the Agreement

is calculated as follows:

The Net Snowy-Murray Development Diversions to the

River Murray

PLUS Murray to Murrumbidgee Inter-Valley Transfers

PLUS the Required Annual Release Shortfall

PLUS the Snowy-Murray Development Annual Allocation

PLUS Excess Snowy River Releases in excess of the

volume of the Snowy River Release Shortfall in the previous

Water Year

MINUS at the discretion of the Authority, Murrumbidgee to

Murray Inter-Valley Transfers

MINUS the Required Annual Release Shortfall from the

previous Water Year

MINUS River Murray Above Target Releases allocated to

the River Murray Increased Flows received by Hume

Reservoir.

Schedule 1 A mendments based on referrals of power

250 Water Amendment Bill 2008 No. , 2008

11. Tributary Inflows

(1)

The volume of water referred to in sub-clause 108(2) of the

Agreement is calculated as follows:

The component of the Required Annual Release Shortfall

from the previous Water Year allocated to New South Wales

under sub-clause 13(2) of this Schedule

PLUS half of the River Murray Above Target Releases

allocated to the River Murray Increased Flows received by

Hume Reservoir

PLUS half of the Excess Snowy River Release up to the

volume of half of the Snowy River Release Shortfall in the

previous Water Year for which an adjustment was made

under sub-clauses 11(2) and 12(1) of this Schedule in the

previous Water Year

PLUS at the discretion of the Authority, Murrumbidgee to

Murray Inter-Valley Transfers

(2)

The volume of water referred to in sub-clause 108(3) of the

Agreement is calculated as follows:

The component of the Required Annual Release Shortfall

from the previous Water Year allocated to Victoria under

sub-clause 13(2) of this Schedule

PLUS half of the River Murray Above Target Releases

allocated to the River Murray Increased Flows received by

Hume Reservoir

PLUS half of the Snowy River Release Shortfall, unless

Victoria has previously advised the Authority that Victoria

waives this element of its allocation in any Water Year.

12. Use By New South Wales And Victoria Of Allocated Water

(1)

The quantity of water referred to in paragraph 109(b) of the

Agreement is calculated as follows:

Murray to Murrumbidgee Inter-Valley Transfers

PLUS Excess Snowy River Releases in excess of the

volume of the Snowy River Release Shortfall in the previous

Water Year

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 251

PLUS the Snowy-Murray Development Annual Allocation

sourced from New South Wales

PLUS the component of the Required Annual Release

Shortfall allocated to New South Wales under

sub-clause 13(1) of this Schedule

PLUS unless otherwise agreed with Victoria, half of the

Snowy River Release Shortfall.

(2)

The quantity of water referred to in paragraph 109(c) of the

Agreement is calculated as follows:

The Snowy-Murray Development Annual Allocation

sourced from Victoria

PLUS the component of the Required Annual Release

Shortfall allocated to Victoria under sub-clause 13(1) of this

Schedule

PLUS half of the Excess Snowy River Release up to the

volume of half of the Snowy River Release Shortfall in the

previous Water Year for which an adjustment was made

under sub-clauses 11(2) and 12(1) of this Schedule in the

previous Water Year, (such adjustments to reflect any

waiver or agreement with Victoria as referred to in those

sub-clauses).

13. Required Annual Release Shortfalls

(1)

If at the end of a Water Year there is a Required Annual Release

Shortfall, the Required Annual Release Shortfall is to be accounted

for by the Authority in accordance with Table One.

Schedule 1 A mendments based on referrals of power

252 Water Amendment Bill 2008 No. , 2008

TABLE ONE: WATER ACCOUNTING AND REQUIRED ANNUAL

RELEASE SHORTFALLS

TYPE OF

WATER

YEAR

ARRANGEMENT

WITH RESPECT TO

REQUIRED ANNUAL

RELEASE

SHORTFALL

WATER ACCOUNTING

OUTCOMES

Water Year

during which

a period of

special

accounting is

not in effect

Victoria agrees to the

Required Annual Release

Shortfall

New South Wales and Victoria

deemed to each have used the

Required Annual Release

Shortfall as agreed

Victoria does not agree to

the Required Annual

Release Shortfall

New South Wales deemed to

have used the whole of the

Required Annual Release

Shortfall

Water Year

during which

a period of

special

accounting is

in effect

Victoria and the

Ministerial Council agree

to the Required Annual

Release Shortfall

New South Wales and Victoria

deemed to each have used the

Required Annual Release

Shortfall as agreed

The Ministerial Council

does not agree to the

Required Annual Release

Shortfall

New South Wales deemed to

have used the whole of the

Required Annual Release

Shortfall

(2)

The volume of any Required Annual Release Shortfall from the

previous Water Year must be allocated equally between New

South Wales and Victoria until the balance of Required Annual

Release Shortfalls for either State is zero and thereafter wholly to

the other State.

14. Other Water Accounting Provisions

(1)

Where under this Schedule the Authority is required to adjust

accounts in connection with the Snowy-Murray Development

Annual Allocation, it must make those adjustments in equal

Monthly quantities.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 253

(2)

Where under this Schedule the Authority is required to adjust

accounts in connection with inter-valley transfer, it must make

those adjustments in equal Monthly quantities during the balance

of the Water Year in which New South Wales notifies the

Authority of the relevant inter-valley transfer.

(3)

Each release of River Murray Increased Flows must be allocated

half to New South Wales and half to Victoria.

PART IV -- SNOWY-MURRAY DEVELOPMENT (RIVER

MURRAY) ENVIRONMENTAL ENTITLEMENTS

15. Translation Factors

(1)

New South Wales and Victoria must each transfer Water Savings

and Water Entitlements to its respective Snowy-Murray

Development (River Murray) Environmental Entitlement in

accordance with Translation Factors agreed between each of them

and the Authority.

(2)

New South Wales, Victoria and the Authority must ensure that:

(a)

the Translation Factors are determined in a manner

consistent with the principles used to determine exchange

rates in the relevant Water Market at the time of each

transfer under sub-clause 18(2) of this Schedule; and

(b) the use of Translation Factors to transfer Water Savings and

Water Entitlements to a Snowy-Murray Development (River

Murray) Environmental Entitlement will not have a

significant adverse impact on:

(i)

the level of Reliability of entitlements to water

diverted from the River Murray System, the

Murrumbidgee River System and the Goulburn River

System;

Schedule 1 A mendments based on referrals of power

254 Water Amendment Bill 2008 No. , 2008

(ii) the environmental benefits related to the quantity and

timing of water flows for environmental purposes in

the River Murray System, the Murrumbidgee River

System and the Goulburn River System;

(iii) the Seasonal Availability of the entitlement to be

received during that Water Year by South Australia

under this Agreement; and

(iv) water quality in the River Murray in South Australia.

16. Apportionment Of Environmental Entitlements

New South Wales and Victoria must notify the Authority of how each

Environmental Entitlement has been apportioned between:

(1)

the Snowy River Apportioned Entitlement; and

(2)

the River Murray Apportioned Entitlement.

17. Valley Accounts

If:

(1)

New South Wales or Victoria transfers either or both of Water

Savings and Water Entitlements to an Environmental Entitlement;

and

(2)

the source of that water is from a valley for which the Authority

maintains a valley account,

New South Wales or Victoria (as the case may be) must notify the

Authority of the volume and reliability of the entitlement required to be

added to the relevant valley account to generate the Environmental

Entitlement.

18. Long Term Diversion Caps

(1)

Prior to New South Wales or Victoria transferring either or both of

Water Savings and Water Entitlements to an Environmental

Entitlement, the relevant State must calculate the equivalent

volume by which its Long Term Diversion Cap must be reduced.

(2)

If New South Wales or Victoria transfers either or both of Water

Savings and Water Entitlements to an Environmental Entitlement,

at the same time the relevant State must advise the Authority and

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 255

the Committee of its calculation as to the volume by which its

Long Term Diversion Cap must be reduced.

(3)

If the Committee is satisfied with the appropriateness of a

calculation advised under sub-clause 18(2), it must recommend to

the Ministerial Council that the relevant Long Term Diversion Cap

be amended in accordance with the calculation.

(4)

If the Committee is not satisfied with the appropriateness of a

calculation advised under sub-clause 18(2), the Authority must

arrange for the relevant volume referred to in sub-clause 18(1) to

be re-calculated in consultation with the relevant State.

(5)

If a majority of the Committee members is satisfied with the

appropriateness of a calculation made under sub-clause 18(4), the

Committee must recommend to the Ministerial Council that the

relevant Long Term Diversion Cap be amended in accordance with

the calculation.

(6)

Despite clause 10 of Schedule E, the Ministerial Council must

amend a Long Term Diversion Cap in accordance with any

recommendation made by the Committee under sub-clause 18(3) or

18(5).

PART V -- RIVER MURRAY INCREASED FLOWS

19. Obligation Of Authority To Make River Murray Increased Flows

Subject to this Part, the Authority must release River Murray Increased

Flows.

20. Environmental Objectives And Strategy For River Murray Increased

Flows

(1)

The document entitled "The Living Murray Environmental

Watering Plan 2006-2007" approved by the former Ministerial

Council under the former Agreement on 5 December 2006 is taken

to be the Strategy referred to in this Schedule.

Schedule 1 A mendments based on referrals of power

256 Water Amendment Bill 2008 No. , 2008

(2)

Subject to sub-clauses (3) and (4), the Ministerial Council may

from time to time by resolution amend the Strategy.

(3)

Any amended Strategy:

(a)

must include a provision to the effect that River Murray

Increased Flows have first priority from River Murray

Above Target Releases;

(b) may provide that water credited to the River Murray

Increased Flows in Authority Storages Account need not be

released during the Water Year in which it is credited;

(c)

unless the Ministerial Council otherwise determines, must

not have a significant adverse impact upon the security of

entitlements to water;

(d) must include the environmental objectives for the River

Murray Increased Flows and integrate those objectives with

other environmental initiatives on the River Murray;

(e)

must include adaptive management principles to allow the

ability to optimise environmental benefits; and

(f)

must prescribe appropriate environmental reporting and

monitoring conditions.

(4)

The Ministerial Council must determine any amended

environmental objectives and Strategy in accordance with the

following principles:

(a)

Natural diversity of habitats and biota within the river

channel, riparian zone and the floodplain should be

maintained or enhanced.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 257

(b) Natural linkages between the river and the floodplain should

be maintained or enhanced.

(c)

Natural metabolic functioning of aquatic ecosystems should

be maintained or enhanced.

(d) Elements of the natural flow regime, in particular,

seasonality should be retained or enhanced as far as possible,

in the interests of conserving a niche for native rather than

invasive exotic species and in maintaining the natural

functions of the river.

(e)

Consistent and constant flow and water level regimes should

be avoided where practical, as this is contrary to the

naturally variable flow regime of the River Murray.

(f)

The general principles of ecosystem services should be

recognised.

(g) Environmental benefit should be optimised.

(5)

As soon as practicable after the end of each Water Year, the

Authority must report to the Contracting Governments on the

environmental outcomes of the River Murray Increased Flows

during that Water Year, in the light of the objectives determined by

the Ministerial Council for those Increased Flows.

21. Authority To Maintain River Murray Increased Flows Accounts

(1)

The continuous water accounts for the River Murray Increased

Flows known as:

(a)

the Initial River Murray Increased Flows Account; and

(b) the River Murray Increased Flows in Authority Storages

Account,

maintained under sub-clause 21(1) of Schedule G of the former

Agreement immediately prior to commencement of this Schedule

are continued in existence.

Schedule 1 A mendments based on referrals of power

258 Water Amendment Bill 2008 No. , 2008

(2)

The Authority must maintain the continuous water accounts of the

River Murray Increased Flows referred to in sub-clause 21(1) in

the manner required by this clause.

(3)

The Authority must:

(a)

credit the Initial River Murray Increased Flows Account

with the River Murray Annual Allocation notified by New

South Wales;

(b) transfer from the Initial River Murray Increased Flows

Account to the River Murray Increased Flows in Authority

Storages Account, River Murray Above Target Releases

allocated to the River Murray Increased Flows in accordance

with the Strategy;

(c)

record in the River Murray Increased Flows in Authority

Storages Account the transfer of water in that account

between Authority storages; and

(d) record in the River Murray Increased Flows in Authority

Storages Account the release of River Murray Increased

Flows from Authority storages.

(4)

The River Murray Increased Flows Accounts must be

independently audited unless the Authority by resolution declares

otherwise.

(5)

As soon as practicable after the completion of each audit, the

Authority must send a copy of the audited River Murray Increased

Flows Accounts to the Contracting Governments.

22. Binding Effect of Strategy

Despite any other provision in this Agreement but subject to Divisions 2

and 3 of Part XII of the Agreement, the Authority must:

(1)

allocate River Murray Above Target Releases to the River Murray

Increased Flows Accounts; and

(2)

manage the water in and releases of water from the River Murray

Increased Flows in Authority Storages Account,

in accordance with the Strategy.

Amend ments based on referrals of power Schedule 1

Water Amendment Bill 2008 No. , 2008 259

PART VI -- NOTIFICATION AND CONSULTATION

PROVISIONS

23. Authority To Be Informed Of New Proposals

A Contracting Government must inform the Authority of any proposal:

(1)

to achieve Water Savings or to purchase Water Entitlements for the

purpose of transferring those Water Savings or Water Entitlements

to the Environmental Entitlements; or

(2)

to modify the reliability of a supply of water pursuant to an

Environmental Entitlement,

in accordance with sub-clause 49(4) of the Agreement.

24. Snowy Scheme Annual Water Operating Plan

(1)

The parties acknowledge that as a result of provisions in the Snowy

Water Licence and a deed between the Commonwealth, New South

Wales and Victoria as at the Corporatisation Date, the Licensee is

bound to consult with others, including the Authority, while

developing each Annual Water Operating Plan and any variation to

each Plan.

(2)

The Commonwealth, New South Wales and Victoria must:

(a)

ensure the direct participation by the Authority in each

consultation referred to in sub-clause 24(1) or held under

any varied consultation arrangements; and

(b) consult with the Authority before varying existing

consultation arrangements.

25. Notifications Required

(1)

Each Contracting Government must, at the time specified by the

Authority, notify the Authority of such water volumes and

estimates as are reasonably requested by the Authority to enable it

to make calculations referred to in this Schedule.

Schedule 1 A mendments based on referrals of power

260 Water Amendment Bill 2008 No. , 2008

(2)

The Authority must, at any time specified by New South Wales,

notify New South Wales of such water volumes and estimates

calculated by the Authority by reference to the Baseline Conditions

as are reasonably requested by New South Wales, to enable New

South Wales to calculate the Required Annual Release.

PART VII -- ANALYTICAL MODELS

26. Developing Analytical Models

(1)

The Authority must develop an analytical model for determining,

in the case of the River Murray System:

(a)

storage volumes; and

(b) total diversions,

that would have occurred under Baseline Conditions.

(2)

New South Wales must develop an analytical model for

determining, in the case of the Murrumbidgee River System:

(a)

storage volumes; and

(b) total diversions,

that would have occurred under Baseline Conditions.

(3)

An analytical model developed under this clause:

(a)

must be the best model available to the Authority or New

South Wales, from time to time, for the purpose of

calculating the timing and quantity of the Relaxation

Volume under Baseline Conditions; and

(b) must be tested against relevant historical data to determine

the accuracy of the model.

(4)

New South Wales may at its own cost engage an independent

auditor to evaluate whether the model developed under

sub-clause 26(1) of this Schedule is:

(a)

the best available to the Authority; and

Schedule 2 Other amendments

Part 2 A mend ments

268 Water Amendment Bill 2008 No. , 2008

River Murray System has the meaning given by subsection

86A(3).

33 Subsection 4(1) (definition of State)

Before "includes", insert "(except in section 18B)".

34 Subsection 4(1) (definition of State water sharing

arrangement)

Repeal the definition, substitute:

State water sharing arrangement has the meaning given by

subsection 86D(4).

35 Subsection 4(1)

Insert:

transitional asset has the meaning given by subsection 239C(3).

36 Subsection 4(1)

Insert:

transitional instrument has the meaning given by subsection

239N(4).

37 Subsection 4(1)

Insert:

transitional liability has the meaning given by subsection 239F(3).

38 Section 5

Repeal the section, substitute:

5 Application of the Acts Interpretation Act 1901 to Parts 1A, 2A, 4,

4A, 10A and 11A

(1) The Acts Interpretation Act 1901, as in force on the day on which

Schedule 1 to the Water Amendment Act 2008 commences, applies

to Parts 1A, 2A, 4, 4A, 10A and 11A.

(2) Amendments of the Acts Interpretation Act 1901 made after that

day do not apply to those Parts.

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 269

39 Subsection 9(1)

Omit "(1) This Act", substitute "This Act (other than Parts 1A, 2A, 4,

4A, 10A and 11A)".

40 Subsection 9(1) (notes 3 and 4)

Repeal the notes.

41 Subsection 9(2)

Repeal the subsection.

42 After section 9

Insert:

9A Constitutional basis of Parts 1A, 2A, 4, 4A, 10A and 11A

Operation in a Basin State

(1) The operation of Parts 1A, 2A, 4, 4A, 10A and 11A in a referring

State that is a Basin State is based on:

(a) the legislative powers that the Commonwealth Parliament has

under section 51 of the Constitution (other than paragraph

51(xxxvii)); and

(b) the legislative powers that the Commonwealth Parliament has

in respect of matters to which those Parts relate because those

matters are referred to it by the Parliament of the referring

State under paragraph 51(xxxvii) of the Constitution.

Note:

The State reference fully supplements the Commonwealth

Parliaments other powers by referring the matters to the

Commonwealth Parliament to the extent to which they are not

otherwise included in the legislative powers of the Commonwealth

Parliament.

(2) The operation of Parts 1A, 2A, 4 and 11A in a Basin State (other

than the Australian Capital Territory) that is not a referring State is

based on the legislative powers that the Commonwealth Parliament

has under section 51 of the Constitution (other than paragraph

51(xxxvii)).

Operation in a State that is not a Basin State

(3) The operation of Parts 4A and 11A in a referring State that is not a

Basin State is based on:

Schedule 2 Other amendments

Part 2 A mend ments

270 Water Amendment Bill 2008 No. , 2008

(a) the legislative powers that the Commonwealth Parliament has

under section 51 of the Constitution (other than paragraph

51(xxxvii)); and

(b) the legislative powers that the Commonwealth Parliament has

in respect of matters to which those Parts relate because those

matters are referred to it by the Parliament of the referring

State under paragraph 51(xxxvii) of the Constitution.

Note:

The State reference fully supplements the Commonwealth

Parliaments other powers by referring the matters to the

Commonwealth Parliament to the extent to which they are not

otherwise included in the legislative powers of the Commonwealth

Parliament.

Operation in the Australian Capital Territory

(4) The operation of Parts 1A, 2A, 4 and 10A in the Australian Capital

Territory is based on:

(a) the legislative powers that the Commonwealth Parliament has

under section 122 of the Constitution to make laws for the

government of that Territory; and

(b) the legislative powers that the Commonwealth Parliament has

under section 51 of the Constitution (other than paragraph

51(xxxvii)).

Operation in the Northern Territory

(5) The operation of Part 4A in the Northern Territory is based on:

(a) the legislative powers that the Commonwealth Parliament has

under section 122 of the Constitution to make laws for the

government of that Territory; and

(b) the legislative powers that the Commonwealth Parliament has

under section 51 of the Constitution (other than paragraph

51(xxxvii)).

43 After subparagraph 10(1)(a)(ii)

Insert:

(iia) water service infrastructure that carries water that has

been taken from a Basin water resource; or

44 After section 12

Insert:

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 271

12A Actions of the Murray-Darling Basin Ministerial Council

If this Act requires or permits the Murray-Darling Basin

Ministerial Council to do a thing, the Murray-Darling Basin

Ministerial Council is required or permitted to do the thing in

accordance with any requirements specified in the Agreement.

45 Division 2 of Part 1

Repeal the Division.

46 Subsection 21(2) (note)

Repeal the note, substitute:

Note 1:

See Articles 7 and 8 of the Biodiversity Convention.

Note 2:

The Basin Plan must also be prepared having regard to critical human

water needs (see Part 2A).

47 At the end of subsection 21(3) (before the note)

Add:

; and (c) take account of the ecological character descriptions of:

(i) all declared Ramsar wetlands within the Murray-Darling

Basin; and

(ii) all other key environmental sites within the

Murray-Darling Basin;

prepared in accordance with the National Framework and

Guidance for Describing the Ecological Character of

Australias Ramsar Wetlands endorsed by the Natural

Resource Management Ministerial Council.

48 Subsection 21(3) (note)

Repeal the note, substitute:

Note 1:

See Article 3 of the Ramsar Convention.

Note 2:

A copy of the National Framework and Guidance for Describing the

Ecological Character of Australias Ramsar Wetlands may be found

on the Departments website.

49 At the end of paragraph 21(4)(c)

Add:

; and (x) any other arrangements between States for the sharing

of water.

Schedule 2 Other amendments

Part 2 A mend ments

272 Water Amendment Bill 2008 No. , 2008

50 Subsection 21(5)

After "Basin Plan" (last occurring), insert "first".

51 At the end of subsection 22(1)

Add:

Note:

The Basin Plan must also include matters relating to critical human

water needs (see Part 2A).

52 Paragraph 26(1)(j)

Repeal the paragraph, substitute:

(j) any matter that was dealt with in:

(i) Schedule E to the former MDB Agreement (other than

paragraph 15(3)(c) of that Schedule); or

(ii) the Protocols to the former MDB Agreement made

under Schedule E to the former MDB Agreement (other

than the Protocol on Access and Exit Fees).

53 After subsection 34(1)

Insert:

(1A) Subsection (1) does not apply in relation to any of the matters

included or specified in the Basin Plan under Part 2A (Critical

human water needs).

Note:

For the effect of the Basin Plan on the Authority and other agencies of

the Commonwealth in relation to these matters, see section 86G.

54 Subsection 35(1)

Omit "The Murray-Darling Basin Commission", substitute "The Basin

Officials Committee".

55 After subsection 35(1)

Insert:

(1A) Subsection (1) does not apply in relation to any of the matters

included or specified in the Basin Plan under Part 2A (Critical

human water needs).

Note:

For the effect of the Basin Plan on other agencies and persons in

relation to these matters, see section 86H.

56 Subsection 36(5)

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 273

Repeal the subsection.

57 Subsection 36(6)

Omit ", (4) and (5)", substitute "and (4)".

58 Subsection 37(6)

Repeal the subsection.

59 Subsection 37(7)

Omit ", (5) and (6)", substitute "and (5)".

60 After section 43

Insert:

43A Authority to seek comments from Murray-Darling Basin

Ministerial Council on proposed Basin Plan

(1) This section applies once the Authority has complied with

section 43 in relation to a proposed Basin Plan.

(2) Without limiting subsection 42(1), the Authority must give each

member of the Murray-Darling Basin Ministerial Council a copy of

the proposed Basin Plan (incorporating any alterations it has made

under paragraph 43(10)(b)).

(3) The copy must be given together with the Authoritys advice to the

Murray-Darling Basin Ministerial Council on the likely

socio-economic implications of any reductions in the long-term

average sustainable diversion limits proposed in the proposed

Basin Plan.

(4) The Murray-Darling Basin Ministerial Council must, within 6

weeks after the Authority complied with subsection (2), give the

Authority a written notice:

(a) stating that neither the Murray-Darling Basin Ministerial

Council nor any of its members have any comments on the

proposed Basin Plan; or

(b) stating that the Murray-Darling Basin Ministerial Council, or

one or more of its members, disagrees with one or both of the

following:

Schedule 2 Other amendments

Part 2 A mend ments

274 Water Amendment Bill 2008 No. , 2008

(i) the long-term average sustainable diversion limits

proposed in the proposed Basin Plan;

(ii) any other aspect of the proposed Basin Plan in relation

to which the Minister may give a direction under

subparagraph 44(3)(b)(ii);

and specifying the nature of the disagreement.

Note:

Subsection 44(5) specifies matters in relation to which the Minister

must not give a direction.

(5) If the Murray-Darling Basin Ministerial Council does not give the

Authority such a notice within that period of 6 weeks, the

Murray-Darling Basin Ministerial Council and its members are

taken not to have any comments on the proposed Basin Plan.

(6) If the Murray-Darling Basin Ministerial Council gives the

Authority a notice that states under paragraph (4)(b) matters with

which the Murray-Darling Basin Ministerial Council, or one or

more of its members, disagrees, the Authority must:

(a) consider the matters; and

(b) undertake such consultations in relation to the matters as the

Authority considers necessary or appropriate; and

(i) confirm the proposed Basin Plan, and give each member

of the Murray-Darling Basin Ministerial Council a copy

of the unaltered proposed Basin Plan, together with the

Authoritys views on the matters; or

(ii) alter the proposed Basin Plan, and give each member of

the Murray-Darling Basin Ministerial Council a copy of

the altered proposed Basin Plan, together with the

Authoritys views on the matters; and

(d) prepare a document that summarises:

(i) any submissions it received in response to the

consultations referred to in paragraph (b); and

(ii) how it addressed those submissions; and

(iii) the extent (if any) to which its consideration of those

submissions has affected the version of the Plan, or the

views, given to the members of the Murray-Darling

Basin Ministerial Council under paragraph (c); and

(e) publish on its website a copy of the document prepared under

paragraph (d).

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 275

(7) The Murray-Darling Basin Ministerial Council must, within 3

weeks after the Authority complied with paragraph (6)(c), give the

Minister a written notice:

(a) stating that neither the Murray-Darling Basin Ministerial

Council nor any of its members express any further views on

the proposed Basin Plan; or

(b) setting out the views of the Murray-Darling Basin Ministerial

Council, or one or more of its members, on one or both of the

following:

(i) the long-term average sustainable diversion limits

proposed in the proposed Basin Plan;

(ii) any other aspect of the proposed Basin Plan in relation

to which the Minister may give a direction under

subparagraph 44(3)(b)(ii).

Note:

Subsection 44(5) specifies matters in relation to which the Minister

must not give a direction.

(8) If the Murray-Darling Basin Ministerial Council does not give the

Minister such a notice within that period of 3 weeks, the

Murray-Darling Basin Ministerial Council and its members are

taken not to express any further views on the proposed Basin Plan.

61 Subsection 44(1)

Omit "60 days", substitute "12 weeks".

62 Subsection 44(3)

Omit "30 days", substitute "6 weeks".

63 After subsection 44(5)

Insert:

(5A) To avoid doubt, subsections 43A(5) and (8) do not affect the

Ministers power to give suggestions or directions to the Authority

under this section.

64 After section 47

Insert:

Schedule 2 Other amendments

Part 2 A mend ments

276 Water Amendment Bill 2008 No. , 2008

47A Authority to seek comments from Murray-Darling Basin

Ministerial Council on proposed amendme nt of Basin

Plan

(1) This section applies once the Authority has complied with

section 47 in relation to a proposed amendment of the Basin Plan.

(2) Without limiting subsection 46(1), the Authority must give each

member of the Murray-Darling Basin Ministerial Council a copy of

the proposed amendment of the Basin Plan (incorporating any

alterations it has made under paragraph 47(10)(b)).

(3) The Murray-Darling Basin Ministerial Council must, within 6

weeks after the Authority complied with subsection (2), give the

Authority a written notice:

(a) stating that neither the Murray-Darling Basin Ministerial

Council nor any of its members have any comments on the

proposed amendment; or

(b) stating that the Murray-Darling Basin Ministerial Council, or

one or more of its members, disagrees with one or both of the

following:

(i) the long-term average sustainable diversion limits

proposed in the proposed amendment;

(ii) any other aspect of the proposed amendment in relation

to which the Minister may give a direction under

subparagraph 48(3)(b)(ii);

and specifying the nature of the disagreement.

Note:

Subsection 48(5) specifies matters in relation to which the Minister

must not give a direction.

(4) If the Murray-Darling Basin Ministerial Council does not give the

Authority such a notice within that period of 6 weeks, the

Murray-Darling Basin Ministerial Council and its members are

taken not to have any comments on the proposed amendment.

(5) If the Murray-Darling Basin Ministerial Council gives the

Authority a notice that states under paragraph (3)(b) matters with

which the Murray-Darling Basin Ministerial Council, or one or

more of its members, disagrees, the Authority must:

(a) consider the matters; and

(b) undertake such consultations in relation to the matters as the

Authority considers necessary or appropriate; and

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 277

(i) confirm the proposed amendment, and give each

member of the Murray-Darling Basin Ministerial

Council a copy of the unaltered proposed amendment,

together with the Authoritys views on the matters; or

(ii) alter the proposed amendment, and give each member of

the Murray-Darling Basin Ministerial Council a copy of

the altered proposed amendment, together with the

Authoritys views on the matters; and

(d) prepare a document that summarises:

(i) any submissions it received in response to the

consultations referred to in paragraph (b); and

(ii) how it addressed those submissions; and

(iii) the extent (if any) to which its consideration of those

submissions has affected the version of the Plan, or the

views, given to the members of the Murray-Darling

Basin Ministerial Council under paragraph (c); and

(e) publish on its website a copy of the document prepared under

paragraph (d).

(6) The Murray-Darling Basin Ministerial Council must, within 3

weeks after the Authority complied with paragraph (5)(c), give the

Minister a written notice:

(a) stating that neither the Murray-Darling Basin Ministerial

Council nor any of its members express any further views on

the proposed amendment; or

(b) setting out the views of the Murray-Darling Basin Ministerial

Council, or one or more of its members, on one or both of the

following:

(i) the long-term average sustainable diversion limits

proposed in the proposed amendment;

(ii) any other aspect of the proposed Basin Plan in relation

to which the Minister may give a direction under

subparagraph 48(3)(b)(ii).

Note:

Subsection 48(5) specifies matters in relation to which the Minister

must not give a direction.

(7) If the Murray-Darling Basin Ministerial Council does not give the

Minister such a notice within that period of 3 weeks, the

Murray-Darling Basin Ministerial Council and its members are

taken not to express any further views on the proposed amendment.

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 279

73 Subsection 60(6)

Omit ", (4) and (5)", substitute "and (4)".

74 Subsection 61(6)

Repeal the subsection.

75 Subsection 61(7)

Omit ", (5) and (6)", substitute "and (5)".

76 Subsection 74(2) (note 1)

Omit ", for reductions that occur on or after 1 January 2015,".

77 After section 74

Insert:

74A States applying the risk assignment frame work

(1) The Minister must, in writing, determine that a Basin State is a

State to which this section applies if the Minister is satisfied that a

State water management law of the State:

(a) has applied the risk assignment framework provided for in

clauses 48 to 50 of the National Water Initiative, read in

conjunction with clause 10.1.3 of the Agreement on

Murray-Darling Basin Reform of 3 July 2008; and

(b) has applied that framework by, and at all times since:

(i) 30 June 2009; or

(ii) a later day specified in the regulations.

Note:

Clauses 48 to 50 of the National Water Initiative and clause 10.1.3 of

the Agreement on Murray-Darling Basin Reform of 3 July 2008 are

set out in Schedule 3A.

(2) The day specified in regulations made for the purposes of

subparagraph (1)(b)(ii) must not be later than the day on which the

Basin Plan first takes effect.

(3) The Minister must, in writing, revoke a determination made under

subsection (1) if satisfied that there is no longer a State water

management law of the State that gives effect to that framework.

Schedule 2 Other amendments

Part 2 A mend ments

280 Water Amendment Bill 2008 No. , 2008

(4) In considering whether to make a determination under

subsection (1), or revoke it under subsection (3), the Minister may

ask the National Water Commission for advice.

(5) A determination made under subsection (1), or a revocation under

subsection (3), is not a legislative instrument.

78 After subsection 75(1)

Insert:

(1A) In working out the amount of the Commonwealth Government

policy component or the new knowledge component, any reduction

that is a result of matters referred to in clause 48 of the National

Water Initiative is to be disregarded.

Note:

Clause 48 of the National Water Initiative is set out in Part 1 of

Schedule 3A.

79 Paragraph 75(2)(b)

After "if" (first occurring), insert "the Basin State in which the water

resource plan area is located is not a State to which section 74A applies,

and".

80 At the end of subsection 75(2)

Add:

; and (c) if the Basin State in which the water resource plan area is

located is a State to which section 74A applies--the

Commonwealths share of the reduction also includes so

much of the new knowledge component (if any) as is worked

out under subsection (3A).

81 After subsection 75(3)

Insert:

(3A) The amount to be included in the Commonwealths share of the

reduction under paragraph (2)(c) is to be worked out on the basis

that, for reductions in the long-term average sustainable diversion

limit for the water resources, or that part of the water resources, of

the water resource plan area in any 10 year period, the

Commonwealths share of the reductions:

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 281

(a) does not include so much of new knowledge components of

those reductions as does not exceed (in aggregate) 3% of the

relevant diversion limit; and

(b) includes all of so much of the new knowledge components of

those reductions as exceeds (in aggregate) 3% of the relevant

diversion limit.

82 Subsection 75(4)

After "subsection (3)", insert "or (3A)".

83 Paragraph 75(4)(b)

Repeal the paragraph, substitute:

(b) on or after:

(i) if the Basin State in which the water resource plan area

is located is a State to which section 74A applies, and a

transitional water resource plan or an interim water

resource plan has effect for the area--the day on which

that plan ceases to have effect; or

(ii) in any other case--1 January 2015.

84 Subparagraph 77(1)(b)(iii)

After "Basin Plan", insert "first".

85 Subparagraph 77(1)(b)(iv)

After "Basin Plan" (first occurring), insert "first".

86 Paragraphs 77(4)(a) and (b) and 79(2)(f)

Before "value", insert "market".

87 After subsection 81(3)

Insert:

(3A) In working out the amount of the Commonwealth Government

policy component or the new knowledge component, any reduction

that is a result of matters referred to in clause 48 of the National

Water Initiative is to be disregarded.

Note:

Clause 48 of the National Water Initiative is set out in Part 1 of

Schedule 3A.

88 Subparagraph 83(1)(b)(iii)

Schedule 2 Other amendments

Part 2 A mend ments

282 Water Amendment Bill 2008 No. , 2008

After "Basin Plan", insert "first".

89 Subparagraph 83(1)(b)(iv)

After "Basin Plan" (first occurring), insert "first".

90 Paragraphs 83(6)(a) and (b) and 85(2)(e)

Before "value", insert "market".

91 Part 4

Repeal the Part.

92 At the end of section 105

Add:

(5) Paragraph (4)(a) does not prevent the Commonwealth

Environmental Water Holder making available water from the

Commonwealth environmental water holdings for the purposes of

protecting or restoring the environmental assets of an area outside

the Murray-Darling Basin so as to:

(a) give effect to an agreement between the Commonwealth and

one or more States; and

(b) return water to the Snowy River.

93 Subsection 108(3)

Repeal the subsection, substitute:

(3) However, Commonwealth environmental water holdings do not

include:

(a) water access rights, water delivery rights, irrigation rights or

other similar rights relating to water; or

(b) interests in, or in relation to, such rights;

that:

by the Commonwealth in the performance of functions that

are not related to its functions of water management under

this Act; or

(d) the Authority holds for the purposes of the Living Murray

Initiative (including rights or interests that vested in the

Authority under section 239C having been held for that

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 283

purpose by the Murray-Darling Basin Commission before the

commencement of Part 10A).

94 Paragraph 123(2)(b)

Omit "a persons", substitute "an individuals".

95 Subparagraph 123(2)(b)(ii)

Omit "persons", substitute "individuals".

96 Section 125 (definition of water information)

Repeal the definition, substitute:

water information means:

(a) any raw data, or any value added information product, that

relates to:

(i) the availability, distribution, quantity, quality, use,

trading or cost of water; or

(ii) water access rights, water delivery rights or irrigation

rights; or

(b) any metadata relating to data of a kind referred to in

paragraph (a);

and includes contextual information relating to water (such as land

use information, geological information and ecological

information).

97 Paragraph 137(b)

After "Part 4" (wherever occurring), insert "or 4A".

98 Paragraphs 172(1)(b) and (c) (note)

Repeal the notes, substitute:

Note:

The Authority may adopt Basin State records, and request the

Basin States to take these measurements etc. (see subsection (2)).

99 After paragraph 172(1)(e)

Insert:

(ea) to develop, in consultation with the Basin States, an

integrated water model for the Murray-Darling Basin;

100 Paragraph 172(1)(g)

Schedule 2 Other amendments

Part 2 A mend ments

284 Water Amendment Bill 2008 No. , 2008

Repeal the paragraph, substitute:

(g) to make recommendations to:

(i) the Commonwealth; or

(ii) a Basin State; or

(iii) an agency of the Commonwealth or a Basin State;

about any matter (including the carrying out of any works or

other measures by the Commonwealth, State or agency) that

the Authority considers could in any way affect the quality or

quantity of the Basin water resources;

101 At the end of subsection 172(1)

Add:

Note:

The Authority also has the functions conferred on it by Part 1A (The

Murray-Darling Basin Agreement) and Part 2A (Critical human water

needs).

102 Paragraph 172(2)(a)

Omit "the Murray-Darling Basin Commission,".

103 Paragraph 172(2)(b)

Repeal the paragraph.

104 Subsection 172(3)

Omit "the Basin Officials Committee", substitute "the other members of

the Murray-Darling Basin Ministerial Council, and inform the Basin

Officials Committee,".

105 Section 173

Repeal the section, substitute:

173 Authority's powe rs

(1) The Authority has power to do anything that is necessary or

convenient to be done for or in connection with the performance of

its functions.

Note 1:

The Authoritys functions are set out in section 172, and in Part 1A

(The Murray-Darling Basin Agreement) and Part 2A (Critical human

water needs).

Note 2:

The Authority also has the powers conferred on it by Parts 1A and 2A.

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 285

(2) The Authoritys powers include, but are not limited to, the

following powers:

(a) the power to acquire, hold and dispose of real and personal

property;

(b) the power to enter into contracts.

Note 1:

Under paragraph 176(1)(c), the Authority may also sue and be sued in

its corporate name.

Note 2:

Acquisitions of interests in land will be done in accordance with the

Lands Acquisition Act 1989 and the Financial Management and

Accountability Act 1997.

Note 3:

The Chief Executive of the Authority may also enter into contracts on

behalf of the Commonwealth. See section 44 of the Financial

Management and Accountability Act 1997.

(3) Any real or personal property held by the Authority is held for and

on behalf of the Commonwealth.

Note:

This subsection does not have the effect of transferring property to the

Authority.

(4) Any money received by the Authority is received for and on behalf

of the Commonwealth.

Note:

This subsection does not have the effect of transferring money to the

Authority.

(5) To avoid doubt, a right to sue is taken not to be personal property

for the purposes of subsection (3).

106 At the end of subsection 174(1)

Add:

Note:

Clause 145 of the Agreement provides for the Commonwealth to

recover from the Basin States a proportion of any payment made by

the Commonwealth in respect of any act or omission of the Authority

in the execution in good faith of the powers vested in the Authority by

or under the Agreement.

107 At the end of subsection 175(2)

Add:

; (e) the performance of a function that is conferred under Part 1A

or 2A.

108 Before paragraph 177(a)

Insert:

Schedule 2 Other amendments

Part 2 A mend ments

286 Water Amendment Bill 2008 No. , 2008

(aa) a Chief Executive;

109 Subsections 178(5) and (6)

Omit "Authority Chair", substitute "Chief Executive".

110 At the end of section 178

Add:

(8) An act of the Authority is not invalid because of a defect or

irregularity in connection with the appointment of the Chief

Executive, Authority Chair or any other member of the Authority.

111 Section 179

Before "An Authority member", insert "(1)".

112 At the end of section 179 (before the note)

Add:

(2) The sum of an Authority members first appointment period and

any period or periods of re-appointment must not exceed 8 years

(not including any periods of acting appointment).

113 Before subsection 180(1)

Insert:

Acting Chief Executive

(1A) The Minister may appoint a member of the Authority staff who is

an SES employee to act as the Chief Executive:

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

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:

(i) is absent from duty or Australia; or

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

office.

114 Subsection 180(2)

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 287

After "other than" (wherever occurring), insert "the Chief Executive

or".

Note:

The heading to subsection 180(2) is altered by inserting "Chief Executive or" after

"other than".

115 Subsections 184(1) and (2)

Omit "Authority Chair", substitute "Chief Executive".

116 Section 185

Omit "Authority Chair", substitute "Chief Executive".

117 Section 187

Omit "Authority Chair" (wherever occurring), substitute "Chief

Executive".

118 Paragraph 189(2)(c)

Omit "Authority Chair", substitute "Chief Executive".

119 Paragraph 189(2)(d)

Omit "if the member is not the Authority Chair--".

120 Paragraph 189(2)(e)

Omit "Authority Chair", substitute "Chief Executive".

121 After paragraph 189(2)(e)

Insert:

(ea) if the member is not the Chief Executive--the member

engages, except with the Ministers approval, in paid

employment that conflicts or could conflict with the proper

performance of the duties of his or her office; or

122 Subdivision D of Division 3 of Part 9 (heading)

Repeal the heading, substitute:

Subdivision D--Basin Officials Committee

123 Subsection 201(1)

Repeal the subsection.

Schedule 2 Other amendments

Part 2 A mend ments

288 Water Amendment Bill 2008 No. , 2008

124 Subsection 201(2)

Omit "(2) The", substitute "In addition to the functions that the

Agreement confers on the Basin Officials Committee, the".

Note:

The heading to subsection 201(2) is deleted.

125 Paragraph 201(2)(b)

Omit "resources;", substitute "resources.".

126 Paragraphs 201(2)(c) and (d)

Repeal the paragraphs.

127 Subsections 201(3) to (6)

Repeal the subsections.

128 After section 201

Insert:

201A Appointment of Chair of the Basin Officials Committee

(1) The Chair of the Basin Officials Committee is to be appointed by

the Minister by written instrument.

Note:

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

Act 1901.

(2) To be eligible for appointment as the Chair of the Basin Officials

Committee, an individual must be the Secretary of the Department

or an SES employee.

(3) The appointment of the Chair of the Basin Officials Committee is

not invalidated merely because of a defect or irregularity in

connection with the appointment.

201B Acting Chair of the Basin Officials Committee

(1) The Minister may, by written instrument, appoint an individual to

act as the Chair of the Basin Officials Committee.

(2) To be eligible for appointment to act as the Chair of the Basin

Officials Committee, an individual must be the Secretary of the

Department or an SES employee.

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 289

(3) An individuals appointment to act as the Chair of the Basin

Officials Committee:

(a) does not cease to have effect merely because the Chairs

appointment ceases to have effect; and

(b) if the Chair is replaced by the appointment of another

Chair--continues in effect in relation to the new Chair.

(4) An individual appointed to act as the Chair of the Basin Officials

Committee may act as, and perform the functions and exercise the

powers of, the Chair:

(a) during a vacancy in the office of the Chair, whether or not an

appointment has previously been made to the office; or

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

(i) is absent from duty or Australia; or

(ii) is, for any reason, unable to attend a meeting of the

Basin Officials Committee; or

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

office.

(5) Anything done by or in relation to an individual 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

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

201C Pe riod of appointment for Chair of the Basin Officials

Committee

(1) The Chair of the Basin Officials Committee (including an acting

Chair) holds office for the period specified in his or her instrument

of appointment.

(2) This section does not affect the operation of section 33A of the

Acts Interpretation Act 1901.

Subdivision E--Other advisory committees

129 At the end of subsection 202(2)

Add:

Schedule 2 Other amendments

Part 2 A mend ments

290 Water Amendment Bill 2008 No. , 2008

Note:

The Basin Community Committee also has the functions conferred on

it by the Agreement (see section 18F).

130 Subsection 202(7) (at the end of the definition of water

user)

Add:

; or (e) is engaged in interception activities with a significant impact

(whether on an activity-by-activity basis or cumulatively) on

water resources.

131 Subsection 204(1)

After "advisory committee", insert "(other than the Basin Officials

Committee)".

132 Subsection 204(2)

Repeal the subsection.

133 Subsection 204(3)

After "an individual must", insert "be nominated by the Murray-Darling

Basin Ministerial Council and must".

134 Subsection 205(1)

After "advisory committee", insert "(other than the Basin Officials

Committee)".

135 After subsection 205(1)

Insert:

(1A) However, the Basin Community Committee is not subject to

direction under subsection (1) in relation to its functions, powers

and duties under section 18F.

136 Subsection 205(2)

Omit "the Basin Officials Committee or".

137 Subsection 206(2)

Omit "Authority Chair" (wherever occurring), substitute "Chief

Executive".

138 Section 207 (note)

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 291

Omit "Authority Chair", substitute "Chief Executive".

139 Section 208

Omit "Authority Chair", substitute "Chief Executive".

Note:

The heading to section 208 is altered by omitting "Chair" and substituting "Chief

Executive".

140 Section 208

Omit "Chairs", substitute "Chief Executives".

141 Paragraph 210(b)

Omit "Commonwealth", substitute "Authority".

142 Paragraph 210(c)

Repeal the paragraph.

143 Paragraph 210(d)

Omit "Commonwealth", substitute "Authority".

144 After paragraph 210(d)

Insert:

(da) interest received by the Commonwealth from the investment

of an amount standing to the credit of the Account;

145 Paragraph 210(e)

Omit "Commonwealth", substitute "Authority".

146 After paragraph 210(e)

Insert:

(ea) amounts received by the Authority in relation to assets that

vest in the Authority under section 239C;

(eb) amounts received by the Authority as refunds or repayments

of the whole or part of amounts paid by the Murray-Darling

Basin Commission before the commencement of Schedule 1

to the Water Amendment Act 2008;

147 At the end of section 210 (before the note)

Add:

Schedule 2 Other amendments

Part 2 A mend ments

292 Water Amendment Bill 2008 No. , 2008

; (g) amounts not otherwise covered by this section that are

received by the Authority in connection with the performance

of the Authoritys functions under this Act or the regulations.

148 Paragraph 211(2)(a)

Omit "Commonwealth", substitute "Authority".

149 Subsection 212(5)

Repeal the subsection, substitute:

(5) A fee must not be such as to amount to taxation.

150 After Subdivision C of Division 5 of Part 9

Insert:

Subdivision CA--Corporate plan

213A Corporate plan

(1) The Authority must prepare a corporate plan at least once a

financial year and give it to the Minister.

(2) The corporate plan must cover a period of 4 financial years.

(3) The corporate plan for a financial year must:

(a) include the corporate plan approved by the Murray-Darling

Basin Ministerial Council under the Agreement in relation to

that year; and

(b) set out:

(i) the objectives of the Authority; and

(ii) the planned activities of the Authority for the 4 financial

years relating to its functions under this Act (other than

Part 1A); and

(iii) the budget for those planned activities.

(4) The Authority must keep the Minister informed about matters that

might significantly affect the achievement of the objectives set out

in the corporate plan.

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 293

213B Variation of corporate plan

(1) The Authority may at any time vary the corporate plan on its own

initiative.

(2) The Authority must not vary the part of the plan that is the

corporate plan approved by the Murray-Darling Basin Ministerial

Council under the Agreement, unless the variation has been

approved in accordance with the Agreement.

(3) The Authority must give a copy of the variation to the Minister.

151 Subsection 214(1)

Omit "Authority Chair", substitute "Chief Executive".

152 Subsection 214(1)

After "the Minister", insert ", and to each other member of the

Murray-Darling Basin Ministerial Council,".

153 Subsection 214(2)

Omit "Authority Chair", substitute "Chief Executive".

154 At the end of subsection 214(2)

Add:

; (e) information about the Authoritys activities during the year,

including information about:

(i) implementation of the Authoritys corporate plan; and

(ii) any other matters on which the Authority is required to

report under the Agreement.

155 Subsection 214(4)

Repeal the subsection.

156 Paragraphs 216(3)(b) and (4)(b)

Omit "or a referring State".

157 Part 11 (heading)

Repeal the heading, substitute:

Schedule 2 Other amendments

Part 2 A mend ments

294 Water Amendment Bill 2008 No. , 2008

Part 11--Other transitional matters

158 Subsection 246(2)

Omit "Subsection 55(2)", substitute "Subsection 65(6)".

159 Section 248 (note)

Omit "the Basins".

160 After section 252

Insert:

252A Dataset for Murray-Darling Basin to be publicly available

The Commonwealth must make a copy of the dataset referred to in

the definition of Murray-Darling Basin in section 18A available

on the Departments website.

161 After section 255

Insert:

255A Application of water charge rules in Basin States that are not

referring States

(1) If a Basin State is not a referring State, water charge rules apply in

the State to a regulated water charge if one or more of the

paragraphs in subsection (2) are satisfied.

(2) This subsection applies if:

(a) the person imposing the charge, or making the demand, is a

constitutional corporation; or

(b) the person on whom the charge is imposed, or from whom

the charge is demanded, is a constitutional corporation; or

in the course of trade and commerce between the States or

between a State and a Territory; or

(d) the person who imposes, or demands payment of, the charge

does so in a Territory; or

(e) the charge relates to:

(i) a water resource in a Territory; or

(ii) water service infrastructure in a Territory; or

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 295

(iii) tradeable water rights in relation to a water resource in a

Territory; or

(f) the charge is imposed, or payment of the charge is demanded,

using a postal, telegraphic, telephonic or other like service

(within the meaning of paragraph 51(v) of the Constitution).

(3) Subsection (2), and the paragraphs of that subsection, do not limit

the operation (if any) that the water charge rules validly have apart

from this section.

255B Application of water market rules in Basin States that are not

referring States

(1) If a Basin State is not a referring State, water market rules apply in

the State to an act, or a failure to do an act, by an infrastructure

operator that has an effect on:

(a) the ability of a person who holds an irrigation right against

the operator to obtain a water access entitlement; or

(b) the ability of a person who held an irrigation right against the

operator to trade or transfer a water access entitlement;

if one or more of the paragraphs in subsection (2) are satisfied.

(2) This subsection applies if:

(a) the infrastructure operator or the person who holds, or held,

the irrigation right is a constitutional corporation; or

(b) the act is done, or the failure to do the act occurs, in the

course of trade and commerce between the States or between

a State and a Territory; or

Territory; or

(d) the water access right, or the irrigation right, relates to a

water resource in a Territory; or

(e) the act is done, or the failure to do the act occurs, using a

postal, telegraphic, telephonic or other like service (within

the meaning of paragraph 51(v) of the Constitution).

(3) Subsection (2), and the paragraphs of that subsection, do not limit

the operation (if any) that the water market rules validly have apart

from this section.

162 At the end of section 256

Schedule 2 Other amendments

Part 2 A mend ments

296 Water Amendment Bill 2008 No. , 2008

Add:

(3) Regulations made for the purposes of Part 7 may make provision

for or in relation to a matter by applying, adopting or

incorporating, with or without modification (including any

omission, addition or substitution), any matter contained in a

written instrument or other document:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time;

even if the written instrument or other document does not yet exist

when the regulations are made.

(4) Subsection (3) has effect despite subsection 14(2) of the

Legislative Instruments Act 2003.

(5) If regulations made for the purposes of Part 7 make provision in

relation to a matter by applying, adopting or incorporating a matter

contained in a written instrument or other document, the Director

of Meteorology must ensure that:

(a) the text of the matter applied, adopted or incorporated is

made publicly available on the Bureaus website, unless that

text is set out in the regulations; and

(b) if the text of the matter is applied, adopted or incorporated as

in force or existing from time to time--any subsequent

amendments of that text are made publicly available on that

website.

163 Schedule 1

Repeal the Schedule.

164 Subparagraph 2(a)(ii) of Schedule 2 (second occurring)

Renumber as subparagraph (iii).

165 After Schedule 3

Insert:

Schedule 3A--Risk assignment framework

Note:

See section 74A.

Other amend ments Schedule 2

Amend ments Part 2

Water Amendment Bill 2008 No. , 2008 297

Part 1--Clauses 48 to 50 of the National Water

Initiative

48.

Water access entitlement holders are to bear the risks of any reduction

or less reliable water allocation, under their water access entitlements,

arising from reductions to the consumptive pool as a result of:

(i) seasonal or long-term changes in climate; and

(ii) periodic natural events such as bushfires and drought.

49.

The risks of any reduction or less reliable water allocation under a water

access entitlement, arising as a result of bona fide improvements in the

knowledge of water systems capacity to sustain particular extraction

levels are to be borne by users up to 2014. Risks arising under

comprehensive water plans commencing or renewed after 2014 are to

be shared over each ten year period in the following way:

i) water access entitlement holders to bear the first 3% reduction in

water allocation under a water access entitlement;

ii) State/Territory governments and the Commonwealth Government

to share one-third and two-thirds respectively reductions in water

allocation under water access entitlements of between 3% and 6%;

and

iii) State/Territory and Commonwealth governments to equally share

reductions in water allocation under water access entitlements

greater than 6%.

50.

Governments are to bear the risks of any reduction or less reliable water

allocation that is not previously provided for, arising from changes in

government policy (for example, new environmental objectives). In

such cases, governments may recover this water in accordance with the

principles for assessing the most efficient and cost effective measures

for water recovery.

Part 2--Clause 10.1.3 of the Agreement on

Murray-Darling Basin Reform of 3 July

2008

10.1.3

Commonwealth undertakes to use its best endeavours to enact

legislation to amend Division 4 of Part 2 of the Water Act so that:

Transitional provisions Schedule 3

Staff Part 1

Water Amendment Bill 2008 No. , 2008 299

Schedule 3

Transitional provisions

Part 1

Staff

1 Accrued leave (other than long service leave)

(1)

If:

(a) a persons employment by the Murray-Darling Basin

Commission ended on the commencement of Schedule 1; and

(b) the person became an employee of the Authority on that

commencement;

then:

the person an amount in relation to accrued leave that the

person has not taken as at that commencement; and

(d) the Authority must recognise that accrued leave, in relation to

the persons employment with the Authority, as if it were

leave in relation to periods of service with the Authority.

(2)

This item does not apply in relation to long service leave.

(3)

This item applies despite subsection 235(2) of the Workplace Relations

Act 1996.

2 Long service leave

If a persons employment by the Murray-Darling Basin Commission

ended on the commencement of Schedule 1, and the person became an

employee of the Authority on that commencement:

(a) sections 11A, 11B and 11C of the Long Service Leave Act

1976 of the Australian Capital Territory do not apply in

relation to the persons employment by the Murray-Darling

Basin Commission that ended on that commencement; and

Note:

This means the persons long service leave entitlements are

carried over to the persons employment by the Authority (and

not paid out under section 11A, 11B or 11C of the Long Service

Leave Act 1976 of the Australian Capital Territory).

(b) the Long Service Leave (Commonwealth Employees) Act

1976 does not apply in relation to the persons employment

by the Authority that started on that commencement; and

Schedule 3 Transitional provisions

Part 1 Staff

300 Water Amendment Bill 2008 No. , 2008

Territory (the ACT law) applies in relation to the persons

employment by the Authority that started on that

commencement; and

(d) for the purposes of applying the ACT law:

(i) the persons period of service with the Murray-Darling

Basin Commission that ended on that commencement;

and

(ii) any other period of service of the person that,

immediately before that commencement, was counted as

service with the Murray-Darling Basin Commission for

the purposes of the application of the ACT law in

relation to the person;

are taken to be the persons period of service with the

Murray-Darling Basin Commission.

3 Authority staff engaged after the commencement of

Schedule 1

(1)

If:

(a) immediately after the commencement of Schedule 1, the

Authority is, because of section 585 of the Workplace

Relations Act 1996, bound by a collective agreement (within

the meaning of that Act) that, immediately before that

commencement, bound the Commission; and

(b) a person is engaged as a member of the Authority staff after

that commencement but before the Authority ceases, under

that Act, to be bound by the collective agreement; and

(d) the person is not a transferring employee within the meaning

of Part 11 of that Act;

that Part applies in relation to the person as if the person were such a

transferring employee in relation to the collective agreement.

(2)

However:

(a) this section does not apply to the extent (if any) that the

persons terms and conditions of employment are provided

for under a law of the Commonwealth; and

(b) this section ceases to apply to the person if the person

becomes an SES employee of the Authority.

Transitional provisions Schedule 3

Appointments etc. Part 2

Water Amendment Bill 2008 No. , 2008 301

Part 2

Appointments etc.

4 Appointment of the Chief Executive

The person who, immediately before the commencement of Schedule 2,

was acting as the Authority Chair is taken, from that commencement, to

be the Chief Executive as if he or she had been appointed under

section 178 of the Water Act 2007 as amended by this Act.

5 Performance of Authority functions etc. before a quorum is

appointed

(1)

Until this item ceases to apply under subitem (2):

(a) the Chief Executive may perform any of the functions of the

Authority and exercise any of its powers; and

(b) anything done by the Chief Executive in performing those

functions or exercising those powers is taken to have been

done by the Authority.

(2)

This item ceases to apply:

(a) at the end of the period of 6 months, or such longer period

specified in the regulations, after the commencement of

Schedule 2; or

(b) when sufficient members of the Authority have been

appointed to constitute a quorum of members at a meeting of

the Authority;

whichever happens first.

(3)

Regulations for the purposes of paragraph (2)(a) must not specify a

period exceeding 12 months.

6 Authorised officers

(1)

After the commencement of Schedule 1, a person who:

(a) is a member of the Authority staff; and

(b) was, immediately before that commencement, a person:

(i) authorised by the Murray-Darling Basin Commission

under section 14 of the Murray-Darling Basin Act 1992

of New South Wales; or

Transitional provisions Schedule 3

Miscellaneous Part 3

Water Amendment Bill 2008 No. , 2008 303

Part 3

Miscellaneous

7 Delegation to the Chief Executive

The Authority is taken, immediately after the commencement of

Schedule 1, to have delegated under section 199 of the Water Act 2007

as amended by this Act all of its functions and powers under that Act

(other than its functions and powers under Subdivisions E, F and G of

Division 1 of Part 2) to the Chief Executive.

8 Indemnity

(1)

The Commonwealth must indemnify:

(a) a person appointed in accordance with subclause 20(1) of the

former MDB Agreement as the President; or

(b) a person appointed in accordance with subclause 20(3) of the

former MDB Agreement as the Deputy President of the

Murray-Darling Basin Commission;

for any liability that he or she incurs for an act or omission of the

person, before the commencement of Schedule 1, in the course of

performing his or her duties as the President or Deputy President

(including, in the case of the Deputy President, his or her duties when

acting as the President).

Note:

The Agreement provides for the Basin States to indemnify the Commonwealth for a

share of the costs associated with any indemnity covered by this subitem.

(2)

The Commonwealth must indemnify a Commissioner for any liability:

(a) to which subitem (1) does not apply; and

(b) that the Commissioner incurs for an act or omission of the

Commissioner, before the commencement of Schedule 1, in

the course of performing his or her duties as a Commissioner.

Note:

The Agreement provides for the State in relation to whom the Commissioner was

appointed to indemnify the Commonwealth for the costs associated with any indemnity

covered by this subitem.

(3)

The Commonwealth must indemnify an officer (within the meaning of

the former MDB Agreement) for any liability that the officer incurs for

an act or omission of the officer, before the commencement of

Schedule 1, in the course of performing his or her duties as an officer.

Note:

The Agreement provides for the Basin States to indemnify the Commonwealth for a

share of the costs associated with any indemnity covered by this subitem.

Schedule 3 Transitional provisions

Part 3 Miscellaneous

304 Water Amendment Bill 2008 No. , 2008

(4)

This item only applies if the liability arose from an act or omission in

good faith.

9 Regulations

(1)

Without limiting subsection 256(1) of the Water Act 2007, regulations

under that subsection may provide for:

(a) the transfer of employees from the Murray-Darling Basin

Commission to the Authority, including the preservation of

some or all of the entitlements and obligations of the

employees of the Murray-Darling Basin Commission; or

(b) staffing procedures of the Murray-Darling Basin Commission

to apply, or to continue to apply, in relation to:

(i) processes begun before, but not completed by, the time

this Part commences; or

(ii) things done by, for or in relation to the Murray-Darling

Basin Commission or an employee of the

Murray-Darling Basin Commission before that time; or

(i) processes begun before, but not completed by, that time;

(ii) things done by, for or in relation to the Murray-Darling

Basin Commission before that time.

(2)

Regulations made for the purposes of this item have effect despite the

Public Service Act 1999.

(3)

In this item:

staffing procedures includes procedures and policies related to:

(a) recruitment, promotion or performance management; or

(b) inefficiency, misconduct, forfeiture of position, fitness for

duty or loss of essential qualifications; or

appeals against staffing decisions; or

(d) transfers, resignations or termination of employment; or

(e) leave.

Commonwealth of Australia Bills

WATER AMENDMENT BILL 2008