Federal Register of Legislation - Australian Government

Primary content

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
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 11 May 2010
Introduced Senate 18 Mar 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

  

  

  


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

 


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

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Water (Crisis Powers and Floodwater Diversion) Act 2010.

2  Commencement

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

3  Objects

                   The objects of this Act are to enable the Murray‑Darling Basin Authority:

                     (a)  to take full responsibility for the management of the water resources of the Basin as a single system during periods of extreme crisis; and

                     (b)  to exercise broader powers in the management of floodwaters and waters from significant rainfall events.

4  Constitutional basis for Act

             (1)  This Act relies on:

                     (a)  the Commonwealth’s legislative powers under paragraphs 51(i), (v), (viii), (xi), (xv), (xx), (xxix) and (xxxix), and section 122, of the Constitution; and

                     (b)  any implied legislative powers of the Commonwealth.

             (2)  The basis for the extended application of Commonwealth legislative powers to meet the objects of this Act is that:

                     (a)  the matters set out in subsection 10(2) of the Water Act, relating to the physical interconnectedness of Basin water resources, and the environmental, economic and social consequences of that interconnectedness, apply even more strongly during periods of extreme crisis;

                     (b)  the only way to secure sufficient water for use for competing environmental, conservation and irrigation purposes is to implement a single, efficient system for the management of Basin water resources during periods of extreme crisis, which equitably deals with matters of water allocation and sharing; and

                     (c)  it is appropriate that impediments to a single, efficient system be set aside until the period of extreme crisis has ended.

5  Interaction with the Water Act

                   The following provisions of the Water Act apply as if they were part of this Act:

                     (a)  section 11 (Reading down provision in relation to the operation of sections 99 and 100 of the Constitution);

                     (b)  section 12 (Application to Crown etc.);

                     (c)  section 13 (The Native Title Act 1993 not affected).

6  Inconsistent Commonwealth laws

             (1)  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 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.

7  Interpretation

             (1)  In this Act:

Water Act means the Water Act 2007.

water plan, arrangement or agreement means any plan, arrangement or agreement provided for or dealt with by the Water Act, and includes the following:

                     (a)  the Basin Plan, if any;

                     (b)  any interstate sharing agreement;

                     (c)  any State or local plans;

                     (d)  any arrangement that affects the way that water entitlements and allocations may be traded.

             (2)  Unless the contrary intention appears, any other word or expression that is used in this Act that is also used in the Water Act has the meaning it has in that Act.

8  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.


 

Part 2Declaration of period of extreme crisis

  

9  Extreme crisis

             (1)  A period of extreme crisis exists during any period in which the circumstances in either subsection (1) or (2) exist.

             (2)  A period of extreme crisis exists during any period:

                     (a)  commencing when the level of water in Lake Alexandrina is continuously less than +0.0m Australian Height Datum (AHD) for more than 3 consecutive months; and

                     (b)  ending when the level of water in Lake Alexandrina has returned to a level continuously above +0.4m AHD for 3 consecutive months.

             (3)  A period of extreme crisis exists during any period:

                     (a)  commencing when allocations to high security water entitlement holders in any irrigation district have been below 20% for more than 2 consecutive years; and

                     (b)  ending when allocations to those high security water entitlement holders have returned to a level above 40% in any year.

             (4)  If the criteria in paragraph (2)(a) and paragraph (3)(a) have each been met, the period of extreme crisis does not end until the criteria in paragraphs (2)(b) and (3)(b) have each been met.

10  Chief Executive’s advice

             (1)  The Chief Executive must advise the Minister, in writing, if:

                     (a)  the Authority assesses that the Basin has entered a period of extreme crisis; or

                     (b)  the Authority assesses that a period of extreme crisis has ended.

             (2)  Advice under subsection (1) must include advice as to the basis on which the Authority’s assessment has been made.

             (3)  The Chief Executive must cause a copy of any advice given under subsection (1) to be published on the Authority’s website.

11  Advice to the Minister

             (1)  If the Chief Executive advises the Minister that the Basin has entered a period of extreme crisis, the Minister must, within 14 days, either:

                     (a)  make a declaration under section 12 that the Basin has entered a period of extreme crisis; or

                     (b)  both:

                              (i)  give reasons why the Minister does not consider it necessary or appropriate to make such a declaration; and

                             (ii)  cause a statement of those reasons to be published on the department’s website.

             (2)  If the Chief Executive advises the Minister that a period of extreme crisis has ended, the Minister must either:

                     (a)  make a declaration under section 13 that a period of extreme crisis has ended; or

                     (b)  both:

                              (i)  give reasons why the Minister does not consider it necessary or appropriate to make such a declaration; and

                             (ii)  cause a statement of those reasons to be published on the department’s website.

             (3)  Before taking action under subsection (1) or (2), the Minister may seek further information from the Authority.

             (4)  If:

                     (a)  the Chief Executive advises the Minister under paragraph 10(1)(a) that the Basin has entered a period of extreme crisis; and

                     (b)  the Minister does not make a declaration under section 12, in accordance with paragraph (1)(a); and

                     (c)  after a period of 6 months from the date of the advice the Chief Executive assesses that a period of extreme crisis continues to exist;

the Chief Executive must again provide advice to the Minister under section 10.

12  Declaration of extreme crisis

                   The Minister may, by legislative instrument, declare that the Basin has entered a period of extreme crisis.

13  Declaration of end of crisis

                   The Minister may, by legislative instrument, declare that a period of extreme crisis has ended, and that a declaration under section 12 is no longer in force.


 

Part 3Crisis powers

Division 1Application, objects and effect of Part

14  Application of Part

                   This Part applies during any period in which a declaration is in force under section 12.

15  Objects of Part

                   The objects of this Part are:

                     (a)  to give the Authority overall control of the water resources in the Basin to address the crisis, including by making the groundwater and surface water allocation decisions necessary:

                              (i)  for system maintenance and to maintain river heights at a minimum level; and

                             (ii)  for the environment; and

                            (iii)  for salinity management; and

                            (iv)  for water users and holders of water access entitlements or water access rights; and

                     (b)  to empower 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

             (1)  The powers and functions of the Authority are expanded in accordance with Division 2.

             (2)  The Water Act and other laws have effect subject to this Part.

             (3)  To the extent that a provision of the Water Act or any other law is inconsistent with this Part, or with action taken by the Minister or the Authority under this Part, that provision is of no effect.

             (4)  To the extent that a provision of any water plan, arrangement or agreement is inconsistent with this Part, or with action taken by the Minister or the Authority under this Part, that provision is of no effect.

Division 2Crisis powers and functions of Authority

17  Authority to manage Basin water resources

             (1)  The Chief Executive may make a direction, in writing, relating to the management of any or all of the water resources within, or beneath, the Murray‑Darling Basin.

             (2)  A direction under subsection (1) may deal with any matter capable of being dealt with by any water plan, arrangement or agreement, including any of the following matters:

                     (a)  water sharing arrangements;

                     (b)  water allocation arrangements;

                     (c)  storage management;

                     (d)  water accounting rules;

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

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

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

             (3)  A direction under subsection (1) has effect according to its terms.

             (4)  A direction under subsection (1) is not a legislative instrument.

18  Authority may suspend or vary agreements etc.

             (1)  The Chief Executive may make a declaration, in writing, suspending, varying or replacing any water plan, arrangement or agreement which might impede the capacity of the Authority to manage the Basin’s water resources as a single system.

             (2)  A declaration under subsection (1) must specify:

                     (a)  the instrument, or class of instruments, affected;

                     (b)  the period during which the instrument, or class of instruments, is to be suspended, varied or replaced (as the case may be), or a method of determining that period.

             (3)  A declaration under subsection (1) has effect according to its terms.

             (4)  A declaration under subsection (1) is not a legislative instrument.

19  Powers of Authority in relation to implementation and compliance

             (1)  The Authority is responsible for implementing any direction or declaration made under this Part.

             (2)  The Authority is responsible for ensuring compliance with any direction or declaration made under this Part.

20  General powers of Authority

                   The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions under this Act.

21  Matters to which Authority must have regard

                   In making a direction or declaration under this Part, the Chief Executive must have regard to the following matters:

                     (a)  the objects of this Part;

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

                     (c)  critical human water needs;

                     (d)  environmental needs and obligations including international obligations;

                     (e)  community needs;

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

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

                     (h)  any other relevant international agreements;

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

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

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

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

may have regard to any other matter to which the Authority considers it necessary to have regard.