Federal Register of Legislation - Australian Government

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Other as made
This Protocol sets processes and principles for interstate transfers of water allocations.
Administered by: Agriculture and Water Resources
General Comments: (1) All protocols made under paragraph 6 (1) (f) of Schedule D to the Agreement before 1 December 2009 that apply only to interstate tagged trade are revoked. (2) A protocol made under paragraph 6 (1) (f) of Schedule D to the Agreement before the commencement of this Protocol that deals with: (a) transfers of a kind mentioned in section 4; and (b) other transfers; has no application to the extent that it deals with transfers of a kind mentioned in section 4.
Exempt from sunsetting by the Water Act 2007 s 18C(3)
Made 30 Aug 2010
Registered 14 Sep 2010
Tabled HR 28 Sep 2010
Tabled Senate 28 Sep 2010

The MURRAY-DARLING BASIN AUTHORITY, in consultation with the Basin Officials Committee and having considered the advice, if any, given by each person nominated by a Contracting Government under subclause 6 (3) of Schedule D to the Murray-Darling Basin Agreement, makes the following Protocol under clause 6 of Schedule D to that Agreement and section 18E of the Water Act 2007.

I, ROB FREEMAN, Chief Executive of the MURRAY-DARLING BASIN AUTHORITY, authenticate that the Authority validly made the following Protocol on 30 August 2010.

 

 

 

ROB FREEMAN

Chief Executive

7 September 2010

 

 


Contents

                         

                        1     Name of Protocol                                                             3

                        2     Commencement                                                              3

                        3     Revocation                                                                      3

                        4     Application                                                                      3

                        5     Definitions                                                                       3

                        6     Notices                                                                           4

                        7     Processes and principles                                                 4

                        8     Review of Protocol                                                           4

Schedule 1             Processes and principles                                               6

 



 

  

1              Name of Protocol

                This Protocol is the Murray-Darling Basin Agreement (Schedule D — Processing Interstate Transfers of Water Allocations) Protocol 2010.

Note   This Protocol deals with matters referred to in paragraph 6 (1) (f) of Schedule D to the Agreement.

2              Commencement

                This Protocol commences on the day after it is registered.

3              Revocation

         (1)   All protocols made under paragraph 6 (1) (f) of Schedule D to the Agreement before 1 December 2009 that apply only to interstate tagged trade are revoked.

         (2)   A protocol made under paragraph 6 (1) (f) of Schedule D to the Agreement before the commencement of this Protocol that deals with:

                (a)    transfers of a kind mentioned in section 4; and

               (b)    other transfers;

has no application to the extent that it deals with transfers of a kind mentioned in section 4.

4              Application

                This Protocol applies to interstate transfers of water allocations.        

5              Definitions

                In this Protocol:

Act means the Water Act 2007.

month means any of the months of the year.

transferee, in respect of the transfer of an allocation, includes the buyer.

transferee’s authority means the licensing authority in a State of destination in respect of a transfer.

transferor, in respect of the transfer of an allocation, includes the seller.

transferor’s authority means the licensing authority in a State of origin in respect of a transfer.

Note    Several other words and expressions used in this Protocol have the meaning given by the Act (including the Agreement), for example:

·      allocation

·      Authority

·      Contracting Government

·      exchange rate trade

·      licensing authority

·      State

·      State Contracting Government

·      tagged trade

·      year.

6              Notices

         (1)   A notice under this Protocol must be given in writing.

Note   Written notices may be given electronically: see section 9 of the Electronic Transactions Act 1999.

         (2)   The Authority must, in consultation with each State Contracting Government and, where appropriate, any relevant licensing authority, determine the form and content of a notice required to be given to or by the Authority under this Protocol.

7              Processes and principles

                The Authority and each State Contracting Government and licensing authority must follow the processes and principles in the steps set out in Schedule 1.

8              Review of Protocol

         (1)   An independent auditor appointed under subclause 16 (5) of Schedule D to the Agreement may consider the operation of this Protocol and, if the auditor considers it appropriate, recommend that the Authority review the Protocol.

         (2)   The Authority must review, and if appropriate, consider amending this Protocol if:

                (a)    the Agreement is amended in a way that may be relevant to interstate transfers; or

               (b)    Commonwealth or State legislation, or an instrument under such legislation, is made or amended in a way that may affect interstate transfers; or

                (c)    any report about the operation of Schedule D to the Agreement or the markets for interstate transfers, prepared under clause 18 of Schedule D to the Agreement, indicates that a review of this Protocol is appropriate; or

               (d)    an independent auditor mentioned in subsection (1) recommends, in connection with his or her appointment as an independent auditor, that a review is appropriate.

 


Schedule 1        Processes and principles

(Section 7)

Step 1    Lodging applications

                An application to transfer an allocation is not to be processed unless:

                (a)    the transferor has given the transferor’s authority a duly completed and executed:

                          (i)    original of the transferor’s authority’s application form; and

                         (ii)    copy of the transferee’s authority’s application form; and

               (b)    the transferee has given the transferee’s authority a duly completed and executed:

                          (i)    original of the transferee’s authority’s application form; and

                         (ii)    copy of the transferor’s authority’s application form.

Step 2    Consideration of application by transferee’s authority

         (1)   When a transferee lodges the application forms mentioned in paragraph (b) of step 1 with the transferee’s authority, the transferee’s authority must promptly:

                (a)    note the application in its records; and

               (b)    assign a transaction identification number to the transfer; and

                (c)    consider any protocol made under subclause 6 (1) of Schedule D to the Agreement, and any other matters which the transferee’s authority is required to consider, to determine whether the transferor’s application is prohibited.

         (2)   A transferee’s authority or transferor’s authority for a transfer may, at any time, request the other authority for the transfer to provide a copy of any application form lodged with the other authority.

         (3)   If a request is made under clause (2) of this step, the other authority must promptly provide the requesting authority with the document requested, clearly marked as a copy.

         (4)   If the transferee’s authority decides that the transferee’s application is prohibited, the transferee’s authority must notify:

                (a)    the transferee; and

               (b)    the transferor’s authority — also advising the transferee’s authority of the transaction identification number assigned under paragraph (1) (b) of this step; and

                (c)    any broker or other agent engaged to assist in making the proposed transfer;

that the transferee’s application is prohibited.

         (5)   A notice under clause (4) of this step must include reasons for the decision.

         (6)   If the transferor’s authority receives a notice under clause (4) of this step, the transferor’s authority must promptly inform the transferor of the notice.

         (7)   If the transferee’s authority decides that the transferee's application is not prohibited, the transferee’s authority must notify the transferor’s authority:

                (a)    of the transaction identification number assigned under paragraph (1) (b) of this step; and

               (b)    that the transferee’s application is not prohibited.

         (8)   The transferee’s authority must promptly notify the transferor’s authority of any event that results in the transferee’s authority subsequently prohibiting the transferee’s application.

Step 3    Consideration and finalisation of application by transferor’s authority

         (1)   When the transferor’s authority has received the application forms referred to in paragraph (b) of step 1 and notice from the transferee’s authority under clause (7) of step 2, the transferor’s authority must promptly:

                (a)    note the application in its records; and

               (b)    assign a transaction identification number to the transfer; and

                (c)    after considering any other matters which the transferor’s authority is required to consider, determine whether or not the transferor's application will be approved.

         (2)   If the transferor’s authority decides that the transferor's application will not be approved, the transferor’s authority must notify:

                (a)    the transferor; and

               (b)    the transferee’s authority — also advising the transferor’s authority of the transaction identification number assigned under paragraph (1) (b) of this step; and

               (d)    any broker or other agent engaged to assist in making the proposed transfer;

that the application will not be approved.

         (3)   A notice under clause (2) of this step must include reasons for the decision.

         (4)   If the transferor’s authority decides that the transferor's application will be approved, the transferor’s authority must:

                (a)    notify the transferee’s authority:

                          (i)    that the application will be approved; and

                         (ii)    of the transaction identification number assigned under paragraph (1) (b) of this step; and

               (b)    debit the transferor’s allocation account; and

                (c)    set the date upon which the transfer will take effect for the purposes of water accounting; and

               (d)    advise the transferor that the application has been granted.

Step 4    Finalisation of application by transferee’s authority

         (1)   When the transferee’s authority receives notice that the transferor’s authority has approved the application, then, unless an event has occurred since it gave notice to the transferor’s authority under paragraph (7) (b) of step 2 that results in the application subsequently being prohibited, the transferee’s authority must promptly:

                (a)    approve the transfer; and

               (b)    amend its records to reflect the effect of the transfer; and

                (c)    calculate the volume of the allocation to be received by the transferee by applying any exchange rate notified by the Authority, and credit the transferee’s allocation account accordingly; and

               (d)    advise the transferee and any broker or other agent engaged to assist in making the transfer that the transfer has been finalised.

         (2)   If the transferee’s authority is unable to approve the application because of an event referred to in clause (1) of this step, the transferee’s authority must:

                (a)    promptly inform the transferor’s authority; and

               (b)    make arrangements with the transferor’s authority to ensure that the transferor, the transferee and any broker or other agent engaged to assist in making the transfer are promptly informed that the application is not approved.

Step 5    Reconciling records

         (1)   Within 7 days after the end of each month, each licensing authority within a State must send to the Authority:

                (a)    a copy of the aggregate volume of all transfers of allocations and other forms of temporary transfers, into and out of the State in the month; and

               (b)    a table setting out data relating to each transfer from which the aggregate volume was derived.

         (2)   The Authority must examine whether there are any discrepancies between the information mentioned in paragraph (1) (a) and the information mentioned in paragraph (1) (b), of this step that is provided by each licensing authority.

         (3)   The Authority must:

                (a)    record any discrepancy other than an allowable discrepancy; and

               (b)    provide the relevant licensing authority with a report on every discrepancy required by paragraph (a) to be recorded within 14 days after the end of the month in which the Authority receives the information referred to in clause (1) of this step.

         (4)   In paragraph (3) (a) of this step, allowable discrepancy means:

                (a)    a discrepancy of no more than 1 megalitre in relation to the volume of any transfer; or

               (b)    a discrepancy arising because an application made towards the end of a month is considered and reported on by either the transferor’s authority or the transferee’s authority in that month, but is not considered and reported on by the other of those Authorities until the following month; or

                (c)    a discrepancy arising from the transferee’s authority processing a transaction on a later date than the transferor’s authority.

         (5)   A licensing authority that receives a report mentioned in paragraph (3) (b) of this step must:

                (a)    give an explanation of the discrepancy to the Authority, within 14 days after receiving the report; and

               (b)    in consultation with the Authority, promptly seek to resolve the discrepancy.

         (6)   If a discrepancy is not resolved within the same month in which a licensing authority receives the report mentioned in paragraph (3) (b) of this step, the Authority must:

                (a)    inform the next meeting of the Trade Working Group or its successor; and

               (b)    report the discrepancy to the independent auditor referred to in subclause 16 (5) of Schedule D for that year.

Notes

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.