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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
WATER (CRISIS POWERS AND FLOODWATER DIVERSION) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator N Xenophon)
WATER (CRISIS POWERS AND FLOODWATER DIVERSION) BILL 2010
Background
In January and March 2010, storms and significant rainfall over Queensland
resulted in severe flooding. According to the Bureau of Meteorology,
Queensland rivers in the Murray-Darling Basin was estimated to receive a
total volume of approximately 2,039 gigalitres from floodwaters by the end
of the flood.
How much of these, or any, floodwaters, will be allowed to flow down to the
southern states, however, is undetermined. Rather, it is left for states to
negotiate between themselves.
This Bill seeks to introduce measures where, in periods of extreme crisis,
the Murray-Darling Basin Authority is given the power to manage the water
resources of the Basin as a single system during periods of extreme crisis.
This transference of powers to the national body, the Murray-Darling Basin
Authority means that it can make determinations with regard to the
management of waters in the interest of the system as a whole, not with
vested state or territory interests.
These powers give the Murray-Darling Basin Authority overall control of the
water resources in the Basin to address the crisis, including by making
decisions with respect to groundwater and surface water allocation
decisions as required.
It also empowers the Authority to share, manage and allocate basin water
resources and manage all processes that may adversely affect the amount of
water likely to flow through the Basin, including making allocations to
entitlement holders and/or allowing the diversion of water from flood-
affected States or where there is significant rainfall.
An extreme crisis is defined as occurring when the level of water in Lake
Alexandrina is continuously less than + 0.0 Australian Height Datum (AHD)
for more than 3 consecutive months, or when allocations to high security
water entitlement holders in any irrigation district have been below 20
percent for more than 2 consecutive years.
The period of extreme crisis is considered to have ended when the level of
water in Lake Alexandrina has returned to a level continuously above +0.4
AHD for 3 consecutive months, or when allocations to those high security
water entitlement holders have retuned to a level above 40 percent in any
year.
Notes on clauses
1. Short Title
This clause is a formal provision and specifies that the short title
of Bill, once enacted, may be cited as the Water (Crisis Powers and
Floodwater Diversion) Act 2010.
2. Commencement
This Act will commence on the day on which it receives Royal Assent.
3. Object
The object of this Act is to enable the Murray-Darling Basin Authority
to:
a) be granted and to take on full responsibility for the
management of all water resources of the Basin as a single
system, during periods of extreme crisis.
b) be granted and exercise broader powers in the management of
floodwaters and waters from significant rainfall events.
4. Constitutional basis for Act
As this Act would require the transference of powers from the states
to the national body, The Murray-Darling Basin Authority, this clause
specifies the extended application of Commonwealth legislative powers
to meet the objects of this Act.
5. Interaction with the Water Act
This provides that the sections 11, 12 and 13 (regarding the
Constitution, application to the Crown and the Native Title Act 1993)
of the Water Act apply as if they were a part of this Act.
6. Inconsistent Commonwealth Laws
This clause provides that, subject to section 5, if a provision of
this Act is inconsistent with a provision of any other law of the
Commonwealth, the relevant provision of this Act has effect.
7. Interpretation
Within this Act, the Water Act represents the Water Act 2007 and water
plan, arrangement or agreement is to be read as meaning any plan,
arrangement or agreement deal with or provided for under the Water
Act, including the Basin Plan, any interstate sharing agreement, any
state or local plans and any arrangement that affects the way that
water entitlements and allocations may be traded.
8. Regulations
This clause provides that the Governor-General may make regulations
prescribing matters required or permitted by this Act to be
prescribed; or necessary or convenient to be prescribed for carrying
out or giving effect to this Act.
Part 2 - Declaration of period of extreme crisis
9. Extreme crisis
Section 9 sets out the definitions for when a period of extreme crisis
is considered to have begun and ended.
Subsection 2 states that a period of extreme crisis exists when the
level of water in Lake Alexandrina is continuously less than + 0.0
Australian Height Datum (AHD) for more than 3 consecutive months, or
when allocations to high security water entitlement holders in any
irrigation district have been below 20 percent for more than 2
consecutive years.
Subsection 3 states that the period of extreme crisis is considered to
have ended when the level of water in Lake Alexandrina has returned to
a level continuously above +0.4 AHD for 3 consecutive months, or when
allocations to those high security water entitlement holders have
retuned to a level above 40 percent in any year.
In situations where the level of water in Lake Alexandrina is
continuously less than + 0.0 Australian Height Datum (AHD) for more
than 3 consecutive months and when allocations to high security water
entitlement holders in any irrigation district have been below 20
percent for more than 2 consecutive years, then the period of extreme
crisis does not end until both the criteria for the end of a period of
extreme crisis have been met.
10. Chief Executive's advice
Under subsections 1, 2 and 3, once a situation of extreme crisis is
assessed to have occurred (or ended), the Chief Executive of the
Murray-Darling Basin Authority must advise the Minister in writing of
this situation and publish this advice on the Authority's website, and
this advice must include the basis for the assessment by the
Authority.
11. Advice to the Minister
Within 14 days of receiving advice from the Murray-Darling Basin
Authority, subsection 1 requires that the Minister must either make a
declaration that the Basin has entered a period of extreme crisis or
give reason why the Minister does not believe it is necessary or
appropriate to make such a declaration, in which case the Minister
must provide and publish reasons.
Similarly, under subsection 2, if the Chief Executive of the Murray-
Darling Basin Authority advises the Minister that a period of extreme
crisis has ended, the Minister must either make a declaration that the
period of extreme crisis has ended or give reason why the Minister
does not believe it is the case, in which case it must provide and
publish reasons.
Subsection 3 allows that before declaring that a period of extreme
crisis has been entered or has ended, the Minister may seek further
information from the Murray-Darling Basin Authority.
Under subsection 4, if the Chief Executive of the Murray-Darling Basin
Authority has advised the Minister that the Basin has entered a period
of extreme crisis and the Minister does not make a declaration in line
with this, but after a period of 6 months from the date of advice the
Chief Executive assess that the period of extreme crisis continues to
exist, then the Chief Executive must again provide advice to the
Minister.
12. Declaration of extreme crisis
This section allows the Minister to, by legislative instrument,
declare that the Basin has entered a period of extreme crisis.
13. Declaration of end of crisis
This section allows the Minister to, by legislative instrument,
declare that the period of extreme crisis has ended and therefore the
transference of powers to the Murray-Darling Basin is no longer in
force.
Part 3 - Crisis powers / Division 1 - Application, objects and effect of
Part
14. Application of Part
This provides that this Part applies while the declaration of a period
of extreme crisis is in force.
15. Objects of Part
The Objects of the Part are to give the Murray-Darling Basin Authority
overall control of the water resources in the Basin to address the
crisis, including by making decisions with respect to groundwater and
surface water allocation decisions as required.
These decisions may be made for system maintenance and to maintain
river heights at a minimum level; for the environment, for salinity
management and for water users and holders of water access
entitlements or water access rights.
It also empowers the Authority to share, manage and allocate basin
water resources and manage all processes that may adversely affect the
amount of water likely to flow through the Basin, including making
allocations to entitlement holders and/or allowing the diversion of
water from flood-affected States or where there is significant
rainfall.
16. Effect of Part
This clause provides states that the powers and functions of the
Authority are expanded in accordance with Division 2 and that the
Water Act and other laws have effect subject to this Part.
Subsections 3 and 4 of this clause state that where a provision or any
other law is inconsistent with this Part, or with action taken by the
Minister or the Authority under this Part or a part of any water plan,
arrangement or agreement, that that provision is of no effect and this
Part effectively overrides those provisions.
Part 4 - Crisis powers / Division 2 - Crisis powers and functions of
Authority
17. Authority to manage Basin water resources
Subsection 1 gives the power to the Chief Executive of the Murray-
Darling Basin Authority to may make directions in relation to the
management of any or all of the water resources within, or beneath,
the Murray-Darling Basin.
Subsection 2 states that these directions may deal with matters
including water sharing arrangements, water allocation arrangements,
storage management, water accounting rules, rules for arrangements for
sale, purchase or movement of water among Basin states, the allocation
of water for essential system maintenance, conveyance and
environmental purposes or any other matter necessary to give effect to
the objects of this Part.
Subsection 4 states that this declaration in itself is not a
legislative instrument. This provision is merely declaratory. These
instruments are not legislative in character, and apply to the
individual circumstances of the agreements to which they relate.
18. Authority may suspend or vary agreements etc
Section 18 provides that the Chief Executive, in order to manage the
system as a single system, may make declarations in writing
suspending, varying or replacing any water plan, arrangement or
agreement so to ensure it is not impeded in its capacity to manage the
Basin's water resources.
These declarations must specify the instrument, or class of
instruments, affected and the period during which the instrument, or
class of instruments, is to be suspended, varied or replaced, or a
method of determining that period.
Subsection 4 states that this declaration in itself is not a
legislative instrument. This provision is merely declaratory. These
instruments are not legislative in character, and apply to the
individual circumstances of the agreements to which they relate.
19. Powers of Authority in relation to implementation and compliance
The Authority is responsible for implementing and ensuring compliance
with any direction or declaration made under this Part.
20. General powers of Authority
This clause provides that the Authority has the power to do all things
necessary or convenient to enable its function under this Act.
21. Matters to which Authority must have regard
This clause states that in making a direction or declaration under
this Part, the Chief Executive of the Murray-Darling Basin Authority
must have regard to the objects of this Act, the principles as set out
in the National Water Initiative, critical human water needs,
environmental needs and obligations, both domestic and international,
community needs, the importance of efficient market processes in
determining the most appropriate way to use water, the importance to
the economy and communities, international agreements, the possibility
that all or some part of the Basin may be experiencing adverse climate
change, the need for economically-efficient water use and investment,
any other benefits available to particular users of Basin water
resources, the need to prevent activities that contribute to the
improper use, storage and diversion of water, and any other matters
which the Authority considers it necessary to have regard to.