Federal Register of Legislation - Australian Government

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A Bill for an Act to provide for emergency measures to ensure the environmental and economic sustainability of the Murray-Darling Basin, and for related purposes
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Registered 28 Aug 2008
Introduced Senate 28 Aug 2008

 

2008

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Emergency Water (Murray‑Darling Basin Rescue) Bill 2008

 

No.      , 2008

 

(Senator Xenophon)

 

 

 

A Bill for an Act to provide for emergency measures to ensure the environmental and economic sustainability of the Murray‑Darling Basin, and for related purposes

  

  


Contents

Part 1—Preliminary                                                                                                               1

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

2............ Commencement.................................................................................. 1

3............ Objects................................................................................................ 2

4............ Interpretation...................................................................................... 2

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

Part 2—Powers of Minister in relation to management of Basin water resources                3

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

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

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

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

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

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

Part 3—Matters to which Minister must have regard when making a determination         6

12.......... Matters to which Minister must have regard when making a determination           6

Part 4—Constitution and powers of Authority in relation to implementation, compliance and enforcement of Interim Basin Plan                                                                                               7

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

14.......... Powers of Authority in relation to implementation, compliance and enforcement of Interim Basin Plan              7

Part 5—Regulation of water trade                                                                                8

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

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

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

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

19.......... Declaration of taxation schemes detrimental to management of Basin water resources          10

20.......... Failure to comply with Interim Basin Plan made under this Act..... 10

Part 6—Miscellaneous                                                                                                       12

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

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

23.......... Annual report by Minister............................................................... 12

24.......... Regulations....................................................................................... 12

Schedule 1—Amendment of the Water Act 2007                                               13

 


A Bill for an Act to provide for emergency measures to ensure the environmental and economic sustainability of the Murray‑Darling Basin, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Emergency Water (Murray‑Darling Basin Rescue) Act 2008.

2  Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3  Objects

                   The objects of this Act are to empower the Minister and the Murray‑Darling Basin Authority:

                     (a)  to address the current crisis affecting the Murray‑Darling Basin, including making decisions about how best to allocate water:

                              (i)  for system maintenance; and

                             (ii)  to the environment; and

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

                            throughout the Murray‑Darling Basin; and

                     (b)  to share, manage and allocate the Basin water resources and manage all processes that may adversely affect them;

as an emergency measure until such time as the Minister approves a Basin Plan that is consistent with the Water Act 2007.

4  Interpretation

                   A word or an expression that is used in this Act that is also used in the Water Act 2007 has the same meaning in this Act as it has in that Act.

5  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

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

  

6  Decision that Interim Basin Plan required

                   The Minister may decide that, to address the current crisis affecting the Murray‑Darling Basin, an Interim Basin Plan is required, as an emergency measure to apply until such time as he or she approves a Basin Plan that is consistent with the Water Act 2007.

7  Authority to prepare Interim Basin Plan

             (1)  If the Minister decides under section 6 that an Interim Basin Plan is required, the Minister must direct the Authority to prepare the Interim Basin Plan and the Authority must prepare the Interim Basin Plan.

             (2)  An Interim Basin Plan prepared by the Authority under subsection (1) must include any determination made by the Minister under section 9, 10 or 11.

             (3)  A direction by the Minister under subsection (1) must provide that the Authority must prepare the Interim Basin Plan and provide it to the Minister within 30 days of the date of the direction.

             (4)  An Interim Basin Plan may include any of the matters that must or may be included in a Basin Plan under section 22 of the Water Act 2007, but does not need to include all the detail required in a Basin Plan.

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

8  Approval of Interim Basin Plan

             (1)  If the Minister gives a direction under subsection 7(1), within 30 days of receiving the Interim Basin Plan from the Authority the Minister must either:

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

                     (b)  approve the Authority’s amended Interim Basin Plan provided to the Minister under paragraph (3)(a); or

                     (c)  amend the Authority’s Interim Basin Plan and approve it; or

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

as an emergency measure to apply until such time as he or she approves a Basin Plan that is consistent with the Water Act 2007.

             (2)  The Minister must, before amending the Authority’s Interim Basin Plan under paragraph (1)(c) or preparing an alternative Interim Basin Plan under paragraph (1)(d), consult the Authority.

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

                     (a)  the Authority may amend its Interim Basin Plan and provide the amended Interim Basin Plan to the Minister within a timeframe decided by the Minister; or

                     (b)  the Minister may amend the Authority’s Interim Basin Plan under paragraph (1)(c) or prepare an alternative Interim Basin Plan under paragraph (1)(d).

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

             (5)  When an Interim Basin Plan approved under paragraph (1)(b), (c) or (d) is laid before a House of the Parliament under the Legislative Instruments Act 2003, the Minister must also lay before that House a document that sets out the Minister’s reasons for not approving the Authority’s Interim Basin Plan under paragraph (1)(a).

9  Matters that may be determined by Minister

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

                     (a)  interim water sharing regimes; and

                     (b)  interim allocation arrangements; and

                     (c)  interim storage management; and

                     (d)  interim water accounting rules; and

                     (e)  rules for arrangements for sale and purchase and movement of water among Basin States; and

                      (f)  the allocation of water for essential system maintenance, conveyance and environmental purposes; and

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

             (2)  In making a determination under subsection (1), the Minister must have regard to the matters set out in section 12.

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

10  Sharing regime

                   In the interests of sustaining and protecting the environment and to assist in making any determination under subsection 9(1), including in relation to any water resource plan area, the Minister must determine:

                     (a)  the share of water needed to maintain Basin water resources in a manner that enables water of reasonable quality to be conveyed to water users, to maintain essential system functions and to maintain water quality; and

                     (b)  the share of the remaining non‑flood water to which a Basin State is entitled; and

                     (c)  the share, if any, to be granted to the environment as a separate and clearly identifiable holder of an inalienable entitlement to water allocations in the water resource plan area.

11  Activities inconsistent with relevant international agreements

                   The Minister may make a determination that certain activities are inconsistent with relevant international agreements.


 

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

  

12  Matters to which Minister must have regard when making a determination

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

                     (a)  the principles set out in the National Water Initiative which have been agreed to by all governments of the Commonwealth of Australia;

                     (b)  critical human needs;

                     (c)  environmental needs and obligations including international obligations;

                     (d)  community needs;

                     (e)  the importance of efficient market processes in determining the most appropriate way to use water and to facilitate structural adjustment;

                      (f)  the importance to the economy and communities of maintaining permanent plantings;

                     (g)  relevant international agreements;

                     (h)  the possibility that all or some parts of the Murray‑Darling Basin may be experiencing adverse climate change, so that it may not be possible to sustain all forms of water use in the Murray‑Darling Basin and that any adjustment burden must shared equitably across the Murray‑Darling Basin;

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

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

                     (k)  the need to prevent activities that contribute to the improper use, storage and diversion of water;

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


 

Part 4Constitution and powers of Authority in relation to implementation, compliance and enforcement of Interim Basin Plan

  

13  Constitution of Authority

             (1)  For the purposes of implementing this Act or an Interim Basin Plan approved under this Act, the Authority consists of:

                     (a)  the Chair of the Authority; and

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

                     (c)  the 4 other members of the Authority.

             (2)  In order to ensure timely development and implementation of an Interim Basin Plan under this Act, if the Chair or a member of the Authority is appointed under the Water Act 2007 on a part‑time basis, then for the purposes of this Act, the Chair and those such members are temporarily appointed on a full‑time basis and are to be paid such additional remuneration and allowances as are prescribed in the regulations.

14  Powers of Authority in relation to implementation, compliance and enforcement of Interim Basin Plan

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

             (2)  For the purposes of investigating compliance with and enforcing an Interim Basin Plan, the Authority has the same enforcement powers as it has under the Water Act 2007, except to the extent of any inconsistency with this Act.

             (3)  For the purposes of investigating compliance with and enforcing an Interim Basin Plan, the Authority also has the same enforcement powers as the ACCC and the Minister have under the Water Act 2007, except to the extent of any inconsistency with this Act.


 

Part 5Regulation of water trade

  

15  Trade and commerce power

             (1)  In trade and commerce, no natural person or agency of a State may limit or impede the transfer or sale and purchase of water access entitlements, water access rights and water allocations among Basin States.

             (2)  In this section:

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

16  Inconsistent State or Territory actions

                   A State or Territory must not act in any manner which is inconsistent with an Interim Basin Plan or a determination made under this Act.

17  Activities by constitutional corporations

             (1)  A constitutional corporation, its employees or agents after the commencement of this Act must not impede, without the consent of the Minister or the Authority, the flow of water from the Murray‑Darling Basin by:

                     (a)  building dams; or

                     (b)  building pipelines; or

                     (c)  building levies; or

                     (d)  building irrigation channels; or

                     (e)  sinking bores; or

                      (f)  pumping water; or

                     (g)  planting crops or trees; or

                     (h)  taking part in any other activity, function, relationship or business that results in the diversion of Basin water resources from the Murray‑Darling Basin.

             (2)  A constitutional corporation, its employees or agents after the commencement of this Act must not take part, without the consent of the Minister or the Authority, in any activity that diverts or significantly intercepts Basin water resources from the Murray‑Darling Basin.

             (3)  A consent given by the Minister or the Authority under subsection (1) or (2) must not have any adverse effect on the amount of Basin water resources available for use within the Murray‑Darling Basin.

18  Acquisition of property

             (1)  The Minister may, in accordance with any provision of an Interim Basin Plan approved under section 8, acquire from a person on just terms a proportion or all of a water access entitlement or a water access right in a water resource plan area, or any land associated with an acquired water access entitlement or an acquired water access right if appropriate, for one or both of the following purposes:

                     (a)  maintaining the reliability of water access entitlements and water access rights; or

                     (b)  returning water use to sustainable limits.

             (2)  If the Commonwealth and the person do not agree on the amount to be paid, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount as the court determines

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

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

19  Declaration of taxation schemes detrimental to management of Basin water resources

             (1)  The ACCC must inquire into the effects of arrangements in the Income Tax Assessment Act 1997 on:

                     (a)  the water market; and

                     (b)  the nature of irrigation practice and investment;

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

             (2)  Acting on the advice of the ACCC, the Minister may determine that a taxation scheme is detrimental to management of the Basin water resources.

             (3)  The Minister must give a copy of a determination made under subsection (2) to the Treasurer.

             (4)  If the Minister gives a copy of a determination to the Treasurer under subsection (3), the Treasurer must cause a report to be prepared in response to the determination.

             (5)  The Treasurer must cause a copy of a report prepared under subsection (4) to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

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

             (1)  If a Basin State fails to comply with an Interim Basin Plan or any determination made under this Act, the Minister must assess:

                     (a)  the impact of that failure to comply on the other shares determined under section 10 in the Basin water resources; and

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

             (2)  If a Basin State fails to comply with any determination made under this Act, the Minister must by determination reduce that Basin State’s share in the Basin water resources as determined under section 10 by ten times the quantitative effect of that failure to comply as assessed under paragraph (1)(b).

             (3)  If a Basin State, after the Minister under subsection (2) reduces that Basin State’s share in the Basin water resources, continues to fail to comply with an Interim Basin Plan made under this Act, the Minister must apply for an injunction against the Basin State under section 140 of the Water Act 2007.


 

Part 6Miscellaneous

  

21  Inconsistent Commonwealth laws

             (1)  If a provision of this Act is inconsistent with a provision of any other law of the Commonwealth, the relevant provision of this Act has effect despite the provision of that other law and that provision of the other law is, to the extent of any inconsistency, invalid.

             (2)  A provision of this Act and a provision of any other law of the Commonwealth must not be taken for the purposes of this section to be inconsistent to the extent that they are capable of operating concurrently.

22  Application of Legislative Instruments Act 2003

                   A determination made, or an Interim Basin Plan approved by, the Minister under a provision of this Act is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

23  Annual report by Minister

             (1)  As soon as practicable after each 30 June, the Minister must cause to be prepared a report on the operation of this Act for the 12 months ending on that 30 June.

             (2)  The Minister must cause a copy of a report prepared under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

24  Regulations

                   The Governor‑General may make regulations prescribing matters:

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

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


 

Schedule 1Amendment of the Water Act 2007

  

1  After Subdivision B of Division 2 of Part 9

Insert:

Subdivision BAChief Executive Officer

180A  Chief Executive Officer

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

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

             (3)  The Chief Executive Officer is to be appointed by the Governor‑General by written instrument.

             (4)  The Chief Executive Officer is appointed for the period specified in his or her instrument of appointment. The period must not exceed 4 years.

Note:          For re‑appointment, see subsection 33(4A) of the Acts Interpretation Act 1901.

180B  Duties

             (1)  The Chief Executive Officer is responsible for the day‑to‑day administration and management of the Authority and the control of its operations.

             (2)  The Chief Executive Officer is to act in accordance with any policies determined, and any directions given, by the Authority in writing.

             (3)  The Chief Executive Officer has such other duties (if any) not covered by this Act that are determined by the Governor‑General.

180C  Delegation

                   The Chief Executive Officer may, in writing, delegate to a member of the staff of the Authority all or any of the duties or powers of the Chief Executive Officer, unless the regulations otherwise provide.

180D  Standing obligation to disclose interests

             (1)  The Chief Executive Officer must disclose any interest the Chief Executive Officer has if that interest could conflict with the proper performance of the duties of the Chief Executive Officer. Disclosure is required whether or not there is any particular matter under consideration that gives rise to an actual conflict of interest.

Note:          The Chief Executive Officer must also disclose the interest under section 180E if the interest is in a matter being considered or about to be considered by the Authority.

             (2)  The disclosure must be by written notice given to the Minister as soon as practicable after the Chief Executive Officer becomes aware of the potential for conflict of interest.

             (3)  Subsection (1) applies to interests:

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

                     (b)  whether acquired before or after the Chief Executive Officer’s appointment.

180E  Obligation to disclose interests before considering a particular matter

             (1)  If:

                     (a)  the Chief Executive Officer has an interest in a matter being considered or about to be considered by the Authority; and

                     (b)  the interest is an interest that could conflict with the proper performance of the duties of the Chief Executive Officer, as those duties give the Chief Executive Officer a role in deciding a matter;

the Chief Executive Officer must disclose the nature of the interest to a meeting of the Authority.

             (2)  The disclosure must be made as soon as possible after the relevant facts have come to the Chief Executive Officer’s knowledge.

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

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

                     (a)  must not be present during any deliberation by the Authority on the matter; and

                     (b)  must not take part in any decision of the Authority with respect to the matter.

             (5)  For the purposes of making a determination under subsection (4), the Chief Executive Officer:

                     (a)  must not be present during any deliberation of the Authority for the purpose of making the determination; and

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

             (6)  A determination under subsection (4) must be recorded in the minutes of the meeting of the Authority.

             (7)  Subsection (1) applies to interests:

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

                     (b)  whether acquired before or after the Chief Executive Officer’s appointment.

180F  Outside employment

                   The Chief Executive Officer must not engage in paid employment outside the duties of the Chief Executive Officer’s office without the Minister’s approval.

180G  Remuneration and allowances

             (1)  The Chief Executive Officer is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Chief Executive Officer is to be paid the remuneration that is prescribed in the regulations.

             (2)  The Chief Executive Officer is to be paid the allowances that are prescribed in the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

180G  Leave of absence

             (1)  The Chief Executive Officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Chief Executive Officer leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

180H  Resignation

             (1)  The Chief Executive Officer may resign his or her appointment by giving the Governor‑General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

180I  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Chief Executive Officer for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General may terminate the appointment of the Chief Executive Officer if:

                     (a)  the Chief Executive Officer:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

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

                     (b)  the Minister is satisfied that the performance of the Chief Executive Officer has been unsatisfactory; or

                     (c)  the Chief Executive Officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 consecutive months; or

                     (d)  the Chief Executive Officer engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

                      (f)  the Chief Executive Officer fails, without reasonable excuse, to comply with section 180D or 180E.

180J  Other terms and conditions

                   The Chief Executive Officer holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.

180K  Acting Chief Executive Officer

Acting Chief Executive Officer

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

                     (a)  during a vacancy in the office of Chief Executive Officer, whether or not an appointment has previously been made to the office; or

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

                              (i)  is absent from duty or Australia; or

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

Validation

             (2)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

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

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

                     (c)  the appointment had ceased to have effect; or

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

Note:          See section 33A of the Acts Interpretation Act 1901.

2  Subsection 206(2)

Repeal the subsection, substitute:

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

                     (a)  the Chief Executive Officer and the Authority staff together constitute a Statutory Agency; and

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