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This is a Bill, not an Act. For current law, see the Acts databases.
WATER (CRISIS POWERS AND FLOODWATER DIVERSION) BILL 2010
2008-2009-2010
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Water (Crisis Powers and Floodwater
Diversion) Bill 2010
No. , 2010
(Senator Xenophon and Senator Hanson-Young)
A Bill for an Act to enable the Murray-Darling
Basin Authority to manage the water resources of
the Basin as a single system during periods of
extreme crisis, and for related purposes
i Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010
Contents
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3 Objects
...............................................................................................
2
4 Constitutional
basis for Act ............................................................... 2
5
Interaction with the Water Act ........................................................... 3
6 Inconsistent
Commonwealth laws ..................................................... 3
7 Interpretation
......................................................................................
3
8 Regulations
........................................................................................
4
Part 2--Declaration of period of extreme crisis
5
9 Extreme
crisis
....................................................................................
5
10 Chief
Executive's
advice
...................................................................
5
11
Advice to the Minister ....................................................................... 6
12 Declaration
of
extreme crisis ............................................................. 7
13 Declaration
of
end of crisis ................................................................ 7
Part 3--Crisis powers
8
Division 1--Application, objects and effect of Part
8
14 Application
of
Part
.............................................................................
8
15
Objects of Part ................................................................................... 8
16
Effect of Part ...................................................................................... 8
Division 2--Crisis powers and functions of Authority
9
17
Authority to manage Basin water resources ...................................... 9
18
Authority may suspend or vary agreements etc. ................................ 9
19
Powers of Authority in relation to implementation and
compliance ....................................................................................... 10
20 General
powers
of Authority ........................................................... 10
21
Matters to which Authority must have regard ................................. 10
Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010 1
A Bill for an Act to enable the Murray-Darling
1
Basin Authority to manage the water resources of
2
the Basin as a single system during periods of
3
extreme crisis, and for related purposes
4
The Parliament of Australia enacts:
5
Part 1--Preliminary
6
7
1 Short title
8
This Act may be cited as the Water (Crisis Powers and Floodwater
9
Diversion) Act 2010.
10
Part 1 Preliminary
Section 2
2 Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010
2 Commencement
1
This Act commences on the day on which it receives the Royal
2
Assent.
3
3 Objects
4
The objects of this Act are to enable the Murray-Darling Basin
5
Authority:
6
(a) to take full responsibility for the management of the water
7
resources of the Basin as a single system during periods of
8
extreme crisis; and
9
(b) to exercise broader powers in the management of floodwaters
10
and waters from significant rainfall events.
11
4 Constitutional basis for Act
12
(1) This Act relies on:
13
(a) the Commonwealth's legislative powers under paragraphs
14
51(i), (v), (viii), (xi), (xv), (xx), (xxix) and (xxxix), and
15
section 122, of the Constitution; and
16
(b) any implied legislative powers of the Commonwealth.
17
(2) The basis for the extended application of Commonwealth
18
legislative powers to meet the objects of this Act is that:
19
(a) the matters set out in subsection 10(2) of the Water Act,
20
relating to the physical interconnectedness of Basin water
21
resources, and the environmental, economic and social
22
consequences of that interconnectedness, apply even more
23
strongly during periods of extreme crisis;
24
(b) the only way to secure sufficient water for use for competing
25
environmental, conservation and irrigation purposes is to
26
implement a single, efficient system for the management of
27
Basin water resources during periods of extreme crisis, which
28
equitably deals with matters of water allocation and sharing;
29
and
30
(c) it is appropriate that impediments to a single, efficient system
31
be set aside until the period of extreme crisis has ended.
32
Preliminary Part 1
Section 5
Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010 3
5 Interaction with the Water Act
1
The following provisions of the Water Act apply as if they were
2
part of this Act:
3
(a) section 11 (Reading down provision in relation to the
4
operation of sections 99 and 100 of the Constitution);
5
(b) section 12 (Application to Crown etc.);
6
(c) section 13 (The Native Title Act 1993 not affected).
7
6 Inconsistent Commonwealth laws
8
(1) Subject to section 5, if a provision of this Act is inconsistent with a
9
provision of any other law of the Commonwealth, the relevant
10
provision of this Act has effect despite the provision of that other
11
law and that provision of the other law is, to the extent of any
12
inconsistency, invalid.
13
(2) A provision of this Act and a provision of any other law of the
14
Commonwealth must not be taken for the purposes of this section
15
to be inconsistent to the extent that they are capable of operating
16
concurrently.
17
7 Interpretation
18
(1) In this Act:
19
Water Act means the Water Act 2007.
20
water plan, arrangement or agreement means any plan,
21
arrangement or agreement provided for or dealt with by the Water
22
Act, and includes the following:
23
(a) the Basin Plan, if any;
24
(b) any interstate sharing agreement;
25
(c) any State or local plans;
26
(d) any arrangement that affects the way that water entitlements
27
and allocations may be traded.
28
(2) Unless the contrary intention appears, any other word or expression
29
that is used in this Act that is also used in the Water Act has the
30
meaning it has in that Act.
31
Part 1 Preliminary
Section 8
4 Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010
8 Regulations
1
The Governor-General may make regulations prescribing matters:
2
(a) required or permitted by this Act to be prescribed; or
3
(b) necessary or convenient to be prescribed for carrying out or
4
giving effect to this Act.
5
6
Declaration of period of extreme crisis Part 2
Section 9
Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010 5
Part 2--Declaration of period of extreme crisis
1
2
9 Extreme crisis
3
(1)
A
period of extreme crisis exists during any period in which the
4
circumstances in either subsection (1) or (2) exist.
5
(2)
A
period of extreme crisis exists during any period:
6
(a) commencing when the level of water in Lake Alexandrina is
7
continuously less than +0.0m Australian Height Datum
8
(AHD) for more than 3 consecutive months; and
9
(b) ending when the level of water in Lake Alexandrina has
10
returned to a level continuously above +0.4m AHD for 3
11
consecutive months.
12
(3)
A
period of extreme crisis exists during any period:
13
(a) commencing when allocations to high security water
14
entitlement holders in any irrigation district have been below
15
20% for more than 2 consecutive years; and
16
(b) ending when allocations to those high security water
17
entitlement holders have returned to a level above 40% in
18
any year.
19
(4) If the criteria in paragraph (2)(a) and paragraph (3)(a) have each
20
been met, the period of extreme crisis does not end until the criteria
21
in paragraphs (2)(b) and (3)(b) have each been met.
22
10 Chief Executive's advice
23
(1) The Chief Executive must advise the Minister, in writing, if:
24
(a) the Authority assesses that the Basin has entered a period of
25
extreme crisis; or
26
(b) the Authority assesses that a period of extreme crisis has
27
ended.
28
(2) Advice under subsection (1) must include advice as to the basis on
29
which the Authority's assessment has been made.
30
Part 2 Declaration of period of extreme crisis
Section 11
6 Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010
(3) The Chief Executive must cause a copy of any advice given under
1
subsection (1) to be published on the Authority's website.
2
11 Advice to the Minister
3
(1) If the Chief Executive advises the Minister that the Basin has
4
entered a period of extreme crisis, the Minister must, within 14
5
days, either:
6
(a) make a declaration under section 12 that the Basin has
7
entered a period of extreme crisis; or
8
(b)
both:
9
(i) give reasons why the Minister does not consider it
10
necessary or appropriate to make such a declaration; and
11
(ii) cause a statement of those reasons to be published on
12
the department's website.
13
(2) If the Chief Executive advises the Minister that a period of extreme
14
crisis has ended, the Minister must either:
15
(a) make a declaration under section 13 that a period of extreme
16
crisis has ended; or
17
(b)
both:
18
(i) give reasons why the Minister does not consider it
19
necessary or appropriate to make such a declaration; and
20
(ii) cause a statement of those reasons to be published on
21
the department's website.
22
(3) Before taking action under subsection (1) or (2), the Minister may
23
seek further information from the Authority.
24
(4)
If:
25
(a) the Chief Executive advises the Minister under paragraph
26
10(1)(a) that the Basin has entered a period of extreme crisis;
27
and
28
(b) the Minister does not make a declaration under section 12, in
29
accordance with paragraph (1)(a); and
30
(c) after a period of 6 months from the date of the advice the
31
Chief Executive assesses that a period of extreme crisis
32
continues to exist;
33
Declaration of period of extreme crisis Part 2
Section 12
Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010 7
the Chief Executive must again provide advice to the Minister
1
under section 10.
2
12 Declaration of extreme crisis
3
The Minister may, by legislative instrument, declare that the Basin
4
has entered a period of extreme crisis.
5
13 Declaration of end of crisis
6
The Minister may, by legislative instrument, declare that a period
7
of extreme crisis has ended, and that a declaration under section 12
8
is no longer in force.
9
10
Part 3 Crisis powers
Division 1 Application, objects and effect of Part
Section 14
8 Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010
Part 3--Crisis powers
1
Division 1--Application, objects and effect of Part
2
14 Application of Part
3
This Part applies during any period in which a declaration is in
4
force under section 12.
5
15 Objects of Part
6
The objects of this Part are:
7
(a) to give the Authority overall control of the water resources in
8
the Basin to address the crisis, including by making the
9
groundwater and surface water allocation decisions
10
necessary:
11
(i) for system maintenance and to maintain river heights at
12
a minimum level; and
13
(ii) for the environment; and
14
(iii) for salinity management; and
15
(iv) for water users and holders of water access entitlements
16
or water access rights; and
17
(b) to empower the Authority to share, manage and allocate
18
Basin water resources and manage all processes that may
19
adversely affect the amount of water likely to flow through
20
the Basin, including making allocations to entitlement
21
holders and/or allowing the diversion of water from
22
flood-affected States or where there is significant rainfall.
23
16 Effect of Part
24
(1) The powers and functions of the Authority are expanded in
25
accordance with Division 2.
26
(2) The Water Act and other laws have effect subject to this Part.
27
(3) To the extent that a provision of the Water Act or any other law is
28
inconsistent with this Part, or with action taken by the Minister or
29
the Authority under this Part, that provision is of no effect.
30
Crisis powers Part 3
Crisis powers and functions of Authority Division 2
Section 17
Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010 9
(4) To the extent that a provision of any water plan, arrangement or
1
agreement is inconsistent with this Part, or with action taken by the
2
Minister or the Authority under this Part, that provision is of no
3
effect.
4
Division 2--Crisis powers and functions of Authority
5
17 Authority to manage Basin water resources
6
(1) The Chief Executive may make a direction, in writing, relating to
7
the management of any or all of the water resources within, or
8
beneath, the Murray-Darling Basin.
9
(2) A direction under subsection (1) may deal with any matter capable
10
of being dealt with by any water plan, arrangement or agreement,
11
including any of the following matters:
12
(a)
water
sharing
arrangements;
13
(b)
water
allocation
arrangements;
14
(c)
storage
management;
15
(d) water accounting rules;
16
(e) rules for arrangements for sale, purchase or movement of
17
water among Basin States;
18
(f) the allocation of water for essential system maintenance,
19
conveyance and environmental purposes;
20
(g) any other matter necessary to give effect to the objects of this
21
Part.
22
(3) A direction under subsection (1) has effect according to its terms.
23
(4) A direction under subsection (1) is not a legislative instrument.
24
18 Authority may suspend or vary agreements etc.
25
(1) The Chief Executive may make a declaration, in writing,
26
suspending, varying or replacing any water plan, arrangement or
27
agreement which might impede the capacity of the Authority to
28
manage the Basin's water resources as a single system.
29
(2) A declaration under subsection (1) must specify:
30
(a) the instrument, or class of instruments, affected;
31
Part 3 Crisis powers
Division 2 Crisis powers and functions of Authority
Section 19
10 Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010
(b) the period during which the instrument, or class of
1
instruments, is to be suspended, varied or replaced (as the
2
case may be), or a method of determining that period.
3
(3) A declaration under subsection (1) has effect according to its
4
terms.
5
(4) A declaration under subsection (1) is not a legislative instrument.
6
19 Powers of Authority in relation to implementation and
7
compliance
8
(1) The Authority is responsible for implementing any direction or
9
declaration made under this Part.
10
(2) The Authority is responsible for ensuring compliance with any
11
direction or declaration made under this Part.
12
20 General powers of Authority
13
The Authority has power to do all things necessary or convenient
14
to be done for or in connection with the performance of its
15
functions under this Act.
16
21 Matters to which Authority must have regard
17
In making a direction or declaration under this Part, the Chief
18
Executive must have regard to the following matters:
19
(a) the objects of this Part;
20
(b) the principles set out in the National Water Initiative which
21
have been agreed to by all governments of the
22
Commonwealth of Australia;
23
(c) critical human water needs;
24
(d) environmental needs and obligations including international
25
obligations;
26
(e)
community
needs;
27
(f) the importance of efficient market processes in determining
28
the most appropriate way to use water and to facilitate
29
structural adjustment;
30
Crisis powers Part 3
Crisis powers and functions of Authority Division 2
Section 21
Water (Crisis Powers and Floodwater Diversion) Bill 2010 No. , 2010 11
(g) the importance to the economy and communities of
1
maintaining permanent plantings;
2
(h) any other relevant international agreements;
3
(i) the possibility that all or some parts of the Basin may be
4
experiencing adverse climate change, so that it may not be
5
possible to sustain all forms of water use in the Basin, and
6
that any adjustment burden must shared equitably;
7
(j) the need for economically-efficient water use and investment;
8
(k) any other benefits available to particular users of Basin water
9
resources;
10
(l) the need to prevent activities that contribute to the improper
11
use, storage and diversion of water; and
12
may have regard to any other matter to which the Authority
13
considers it necessary to have regard.
14