Bills Digest no. 30 2007–08
Water Bill 2007
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact officer & copyright details
8 August 2007
House: House of Representatives
Portfolio: Environment and Water
relevant links to the Bill, Explanatory Memorandum and
second reading speech can be accessed via BillsNet, which is at
When Bills have been passed they can be found at ComLaw, which is
To provide the
legislative framework to allow the Commonwealth to assume
significant planning and management powers and responsibilities for
water resources in the Murray Darling Basin.
The Murray Darling Basin
Located in the
south-east of Australia, the Murray-Darling Basin covers over 1
million square kilometres, equivalent to 14 per cent of Australia s
total area. The Basin extends over three-quarters of New South
Wales (NSW), more than half of Victoria, significant portions of
Queensland and South Australia, and includes the whole of the
Australian Capital Territory (ACT). Well over half of the Basin is
in NSW and almost one quarter is in Queensland. Often referred to
as the nation s food basket , the Basin includes nearly 1.9 million
hectares of irrigated crops and pastures, accounting for 75 per
cent of the total area of irrigated crops and pastures in Australia
(2000/01). The Basin is Australia's most important agricultural
region, accounting for 34 per cent of the nation's gross value of
agricultural production (2003).
The Murray Darling Basin
There have been
various intergovernmental agreements relating to the water
resources of the Murray-Darling Basin, and particularly the River
Murray, dating back to 1914.
Murray-Darling Basin Agreement (the MDB Agreement) was signed in
1992, and given full legal status by the passing of the
Murray-Darling Basin Act 1993 by all the
contracting governments. Queensland became a signatory in 1996, and
the ACT formalised its participation through a Memorandum of
Understanding in 1998. The MDB Agreement provides the process and
substance for the integrated management of the Murray-Darling
Basin. The purpose of the Agreement (clause 1) is:
to promote and
co-ordinate effective planning and management for the equitable
efficient and sustainable use of the water, land and other
environmental resources of the Murray-Darling Basin. 
The MBD Agreement
established the Murray-Darling Basin Ministerial Council, the
Murray-Darling Basin Commission (MDBC), which is the Ministerial
Council s executive arm, and the Community Advisory Committee,
which advises the Ministerial Council. Collectively, this
partnership between these various bodies in giving effect to the
MBD Agreement is called the Murray-Darling Basin Initiative.
information on the history of the Murray-Darling Basin Agreement is
available on the MDBC internet site. 
The Living Murray environmental
In 2002 the MDB
Ministerial Council agreed to the Living Murray First Step program,
a joint funded initiative to return up to 500GL of permanent new
water to the River Murray as an environmental flow. The Living
Murray program falls outside the Murray-Darling Basin Agreement,
and is contained in the Living Murray Intergovernmental Agreement.
Further information on the Living Murray program can be found at
the MDBC internet site. 
The 2004 National Water Initiative (NWI)
represents an agreed position of Commonwealth, State and Territory
governments on water reform issues. In part, its origins can be
traced back to the 1994 Council of Australian Governments (COAG)
agreement on water resource policy.  The overall objective of the NWI was
achieve a nationally compatible market,
regulatory and planning based system of managing surface and
groundwater resources for rural and urban use that optimises
economic, social and environmental outcomes. 
The NWI contains some specific provisions on
the Murray-Darling Basin. 
It requires a review of the 1992
Murray-Darling Basin Agreement, where necessary, to ensure that it
is consistent with the NWI. The Murray-Darling Basin Ministerial
Council had agreed to undertake the review by 2007, but it is
unclear whether this has gone ahead in view of the Government s
announcement of its National Plan for Water Security (see
The NWI also required relevant Parties sign a
separate agreement to address the overallocation of water and
achievement of environmental objectives in the MDB ( the MDB
Intergovernmental Agreement ).That agreement was signed at the same
time as the NWI (June 2004). 
The NWI also mandated the establishment of the
National Water Commission (NWC, which was subsequently done under
the National Water Commission Act 2004. It both assesses
the various governments progress in implementing the NWI and helps
its implementation by, for example acting as lead facilitator on
certain actions under the Initiative such as compatible registers
of water entitlements and trades, and nationally consistent
approaches to pricing.
On 25 January 2007, the
Prime Minister, the Hon John Howard MP announced the National
Plan for Water Security (the National Plan).  In relation to the water
resource planning and management in the Murray Darling Basin the
National Plan stated:
The existing mechanism for the management of the Basin is the
MDBC. While the current arrangements have made some substantial
contributions to Basin-wide water management over the decades, the
shortcomings of the current model are of concern to the
Commonwealth Government and, indeed, many others.
The decisions taken by the MDBC often reflect parochial
interests and do not reflect the best interest of the Basin as a
whole. Examples include:
failure to align water management with the NWI
in the areas of water trading, over-allocation and pricing;
lack of Basin-wide information has led to
inefficiencies in management and decision making. For example, a
Basin-wide register of water entitlements, and integrated water
data systems have not been developed;
12 years after introducing a cap of water use,
Queensland and the ACT ignore it and NSW is regularly in
the MDBC has known for several years that the
cap on diversions needs to be reduced and include groundwater to be
effective, but this has not been achieved;
activities in one state or territory that cause
problems in another can still take place without sanction leading
to redistribution of economic and environmental wealth without an
overarching management framework;
consensus-based decision making of the MDBC
means that difficult decisions are often avoided or delayed;
widely distributed responsibilities for the
management of the Basin have led to inefficiency, blame-shifting
and under-resourcing by state and territory governments.
It is in the national interest to secure the long-term economic
and social returns to the Australian community afforded by
sustainable access to the Basin s water resources. This can only be
significant investments in water saving
new investments in water resource monitoring
and water use metering;
addressing the over-allocation problem via
entitlement purchases and structural adjustment; and
reforming the decision making processes in the
It is critical that all four strategies are implemented
The Commonwealth Government will request the referral of state
and territory powers to enable it to manage the MDB in the national
The Commonwealth Government will seek the agreement of NSW,
Victoria, Queensland, South Australia and ACT governments to
transfer all their powers in relation to the MDBC to enable the
Commonwealth Government to oversight water management in the
To enable system operation efficiencies in the southern Basin
and to secure improved environmental outcomes there, the
Commonwealth Government will also request that NSW and Victoria
transfer powers to manage the Murrumbidgee and Goulburn valleys,
along with the Murray Valley already managed by the MDBC. The
Commonwealth Government will operate an integrated water allocation
system for these interconnected valleys. It will also establish an
environmental manager function for the southern Basin to maximise
the benefits of environmental water allocations to our iconic river
We propose to reconstitute the MDBC as a Commonwealth Government
agency, reporting to a single minister. We will set a new strategic
plan for the Basin, incorporating a revised cap on diversions,
taking into account for the first time groundwater use and other
factors that will reduce river inflows in the Basin in the future.
The Plan will be informed by the 2007 Murray-Darling Basin
Sustainable Yields Assessment being undertaken by CSIRO on behalf
of the Prime Minister and MDB State Premiers. Our significant new
investments in water information will ensure that the best
available data is presented to water managers from now on.
Water sharing plans for each valley in the Basin will have to be
revised to satisfy new planning specifications, which will be
enacted through new Commonwealth Government legislation. Each plan
will need to conform with the revised Basin cap and make provision
for the impacts of future climate change and flow interception
activities such as farm dams and plantation development.
Commonwealth Government assistance through the over-allocation and
infrastructure components of the Plan will help water users in the
Basin to adjust to the revised cap.
Commonwealth Government leadership in managing the MDB,
supported by our considerable investments in irrigation and river
system infrastructure, water information and entitlement purchases
will guarantee a brighter future for the Basin.
The responsibility to react decisively to rapidly changing
circumstances will be clear and Basin livelihoods will be protected
and assisted to adjust to changed circumstances.
Negotiation of the Bill and
Implementation of the National plan for Water Security
announcement of the National Plan for Water Security on 27 January
2007, the States and the ACT held a summit to discuss the proposal
on 23 February 2007. At the water summit NSW, South Australia and
Queensland agreed to refer relevant constitutional powers to the
Commonwealth to enable it to manage the MDB in the national
interest and the ACT agreed to cooperate fully. Victoria did not
agree to do so at the time but agreed to continue to negotiate with
the Commonwealth to identify mutually satisfactory ways of
achieving agreed outcomes.
At the end of the
water summit, the then Victorian Premier, Steve Bracks, said that
Victoria would be: 
hoping for a
bigger share of the $10 billion to ensure it was not disadvantaged.
Adoption of the Howard proposal would fiscally reward states with
poor infrastructure and poor water efficiency, he said. We don t
want to see all the money going to the worst offenders with
over-allocations and over-entitlement, Mr Bracks said.
While the negotiations between Victoria and
the Commonwealth continued over the next several months, the
Victorian Government criticised the lack of inclusion of its
concerns in the various draft versions of the Commonwealth
legislation provided to the States.
for Water, John Thwaites, stated the state's position as wanting to
work with the Commonwealth in a co-operative and co-ordinated way,
rather than handing over powers.  On 17 May 2007, he was reported as saying the
Victorian Government would not agree to hand over unspecified
powers to Canberra under the National Water Security Plan but it
was prepared to improve the management of the MDB. 
On 18 May 2007 the Australian Financial
Review reported that: 
Victoria will not endorse the plan until it sees
detailed legislation of how the money will be spent and what powers
the commonwealth wants referred.
After receiving the second draft of
legislation, Premier Bracks wrote to Prime Minister John Howard on
23 May 2007 saying he was very concerned about the tenor of the
draft . It was reported that the Victorians were angry because they
claim the proposed legislation gives the Commonwealth power over
water rights, including authority to override state planning
provisions, and step in powers to take over annual allocations and
control of river flows: 
Despite assurance that you would be seeking a
highly specific, textbased referral of powers, the content of the
draft bill is still extremely broad and could potentially allow the
commonwealth to intervene in almost every activity within the
Murray- Darling basin, Mr Bracks wrote.
On 4 June 2007 Prime Minister Howard met with
Premier Bracks in Sydney and resolved some points to be included in
the next draft: 
Premier Steve Bracks said the Commonwealth had
agreed in principle to three major changes to its proposed
legislation. These were: states keeping the right to make planning
decisions on land in the Murray-Darling Basin; leaving water
pricing in state hands; and the Australian Competition and Consumer
Commission regulating the water market instead of the proposed
Murray-Darling Basin Authority.
Premier Bracks also said that: 
he agreed the Commonwealth should have the
responsibility for water caps and the power to enforce them and the
responsibility for a market scrutinised by the Australian
Competition and Consumer Commission.
On 4 July 2007 the Minister for Environment
and Water Resources, Malcolm Turnbull gave the Victorian Government
a deadline of 12 July to respond to the third draft of the
legislation, saying the Victorian Government had not provided the
Commonwealth with any amendments to the legislation. He also said
that a group of State and Commonwealth public servants had been
working very constructively on both the draft legislation and the
intergovernmental agreement. 
The then Victorian State Treasurer, John
Brumby, said that Victoria had sent its amendments to the
Commonwealth on 11 July and it was up to Water Resources Minister
Malcolm Turnbull to respond.  However, the Commonwealth and Victoria did not
reach agreement, and on 24 July the Prime Minister announced he
would proceed with introducing the Bill based on the Commonwealth
existing constitutional powers that is, without relying on the
States to refer powers to the Commonwealth. 
The Bill was introduced into Parliament on 8
August 2007. On the same day, it was referred to the Senate
Environment, Communications, Information Technology and the Arts
inquiry and report by 14 August 2007. Public hearings were held
on 10 August. At the time of writing of this Digest,
submissions to the inquiry were publicly available but
transcripts were not.
As noted by the Explanatory Memorandum,
implementation of the various measures in National Plan for
Water Security (the National plan) are estimated to cost the
Commonwealth some $10.05 billion over 10 years.
However, the Explanatory Memorandum doesn t
provide any budgetary details of those National Plan measures most
closely associated with the Bill. Other government documents
indicate that measures dealing with water information and improved
metering and monitoring all of which are contemplated by the Bill
will cost over $1 billion.  The largest National Plan budget item improving
off-farm water distribution efficiency is dependent, at least for
the Basin States, on all relevant States signing an
Intergovernmental Agreement that commits them to referring power to
the Commonwealth to allow it to consolidate its legislative power
over Murray-Darling water resources. No drafts of the
Intergovernmental Agreement have been publicly released.
Division 4 of Part 2 of the Bill provides that
water access entitlement holders may be eligible for financial
payments from the Commonwealth if their water allocations are
reduced in certain circumstances. The Explanatory Memorandum is
silent on whether any estimates have been made as to the
Commonwealth s potential liability in this regard. However, given
that any water allocation reductions for which the Commonwealth has
liability may not occur for some time, the possible costs involved
may be too uncertain to estimate.
The Bill has been in development for several
months through various intergovernmental working groups. Earlier
versions have also apparently been circulated to some peak
stakeholder rural, commercial and environmental groups. However, no
exposure draft or outline was publicly released before introduction
of the Bill into Parliament on 8 August. Presumably this is in part
due to the politically sensitive nature of the negotiations
regarding key principles underlying the Bill.
The Explanatory Memorandum does not include a
Regulatory Impact Statement (RIS). Under the government s Legislative
Handbook, a RIS must be prepared:
for all proposed new or amending legislation
which directly affects business or which has a significant indirect
effect on business or restricts competition.
One of the major benefits of having a RIS
prepared and incorporated in the Explanatory Memorandum is that it
often provides a useful analysis of the practical operation of how
key provisions in the Bill will affect businesses and other related
Whilst the Explanatory Memorandum does not say
why a RIS is not included, it is understood that the reason was
that the Bill s focus is more of a planning and management
framework, and it is only regulations or instruments made under the
Bill that would have sufficient effect on business to warrant a
RIS. Whilst this is arguably true, the lack of a RIS, the extremely
short time allocated to the relevant Parliamentary inquiry, and the
scheduling of debate less than one week after introduction, makes
assessing the practical operation of the Bill difficult,
particularly given the length and importance of the Bill.
Clause 255 of the Bill
provides that nothing in the Bill or regulations authorises the
Commonwealth or any other agency to compulsorily acquire a water
access right or an interest in a water access right.
However, an water access entitlement  may be reduced under
the circumstances outlined in clauses 74-86 (see
discussion later in this digest). Where reductions occur after 2014
due to improvements in the knowledge of water systems capacity to
sustain particular extraction levels, the Bill provides that
relevant State governments may have part liability to pay
compensation, along with the Commonwealth. Apparently in previous
drafts of the Bill, States had no liability under these
circumstances the change is due to the reduced Commonwealth power
over Basin water resources resulting from the fact that the Bill is
no longer constitutionally underpinned by referral of Basin State
powers. The NSW government at least views this change as
unacceptable . 
The Commonwealth has been reported as viewing any post 2014
compensation liability is likely be small as it considers most
water over-allocation problems should have by fixed by 2015 due to
investments in infrastructure and the like under the National Plan.
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This defines key terms, and outlines the
constitutional basis of the Bill, including how it interacts with
Clause 3 contains the objects
of the Bill. They are broad ranging, but include managing the
(Murray-Darling) Basin water resources in the national interest and
giving effect to relevant international agreements in such a way
that promotes the optimisation of economic, social and
environmental outcomes .
Clauses 4-8 define key
Basin water resources excludes both
sub-surface water forming part of the Great Artesian Basin
and any water prescribed in regulations.
State includes the ACT. Basin States means New
South Wales, Victoria, Queensland. South Australia and the ACT.
Planned environmental water is water, that
under certain Commonwealth or State laws or instruments, is
designated to achieve environmental outcomes or purposes. It cannot
be used for other purposes, except where used in emergency
circumstances in accordance with a Commonwealth or State law or
Clause 9 sets out the
Commonwealth constitutional provisions that are relied on to
support the validity of the Bill. Notably these include the
Commonwealth power to legislate with respect to:
interstate and foreign trade and commerce (s.
external affairs (51 (xxix))
the Territories (122), and
matters referred to it by a State (51
Clause 9 also states that the
Bill relies on any implied powers of the Commonwealth under the
Constitution. Almost all of the Commonwealth s constitutional
powers are explicitly stated in the Constitution. However, there
are also some implied powers for example implied nationhood power.
The High Court has said that this implied power can be deduced from
the existence and character of the Commonwealth as a national
government to engage in enterprises and activities peculiarly
adapted to the government of a nation and which cannot otherwise be
carried on for the benefit of the nation.  However, the scope of the power is
uncertain and largely untested.
Clause 11 contains a
constitutional read down provision. It potentially applies if the
operation of a provision of the Bill, or of instruments made under
it, would be invalid because of section 99 or 100 of the
Constitution. These sections place certain restrictions on
Commonwealth law where they are made pursuant to trade and commerce
mentioned above. The practical effect of clause 11
is that if the provision can be supported by constitutional power
(say the external affairs power) that is not limited by section 99
or 100, the provision is valid to the extent it operates in
reliance of that power.
Commonwealth and State Governments, and their
agencies, are to be bound by the Act but not subject to prosecution
or civil penalty provisions: clause 12. However,
this protection does not apply to Commonwealth or State
The Bill does not affect the operation of the
Native Title Act 1993: clause 13.
Clauses 14-18 deal with how
relevant Commonwealth and State law interact.
Provided there is no direct inconsistency
between the Bill (or instruments made under it) and State law, they
may operate concurrently: clause 15. In cases
where a State has referred constitutional power to the
Commonwealth, the State may also exclude the operation of certain
Commonwealth water law provisions to specified matters:
clause 16. Clause 17 allows a referring State to
declare that a State law that permits, authorises or requires the
doing of an act to effectively override a Commonwealth water law
that prohibits or penalises that act. Thus clause 17 reverses the
usual situation where Commonwealth law overrides inconsistent State
law. Clause 18 allows for Commonwealth regulations
to be made that, amongst other things, exclude Commonwealth water
law from applying to matters dealt with by specified State law.
Commonwealth water law includes virtually all aspects of the Bill
and instruments made under it.
This part outlines the scope, development and
adoption of both the Basin Plan and water resource plans and the
key issue of what happens if the amount of water to entitlement
holders is reduced or impaired. As its name implies, the Basin Plan
is a broad planning instrument, whereas water resource plans may
cover discrete areas within the Basin.
Clauses 19-52 deal with the
The Basin Plan must give effect to the
relevant aspects of international agreements: subclause
21(1). The notes under subsections 21(2)-(3) suggest that
this will in particular mean Articles 8 of the Biodiversity
Convention and Article 3 of the Ramsar Wetlands
Convention. For convenience, these are reproduced in Appendix
Subject to this subclause
21(1) requirement, the Plan must be adopted and approved
taking into account a very wide range of factors. Besides basic
principles such as ecologically sustainable development, best
available science and socio-economic analysis and various public
interest issues, some of these factors include:
National Water Initiative
the consumptive and other economic uses of
Basin water resources
the management objectives of the Basin States
for particular water resources
the links between water resources in the Basin
and those outside, and
the State water sharing arrangements.
The Basin Plan must also ensure there is no
net reduction in the protection of planned environmental water
under the Basin State water management laws that exist immediately
before the Basin Plan comes into effect: subclause
The Basin Plan must not be inconsistent with
the licence issued under section 22 the Snowy Hydro
Corporatisation Act 1997 (NSW). The Explanatory Memorandum
This requirement reflects the previous
commitments made by the Commonwealth, New South Wales and Victorian
Governments to allow water within the Snowy Scheme to be managed to
meet the rights and obligations set out in the Snowy water licence
and the principles set out in the Heads of Agreement on the
Outcomes of the Snowy Water Inquiry.
Clause 22 lists what must be
in a Basin Plan. These are set out in the relevant table in the
Bill, but amongst other things the plan must include:
the maximum long-term average quantities of
water that can be diverted on a sustainable basis from both Basin
water resources and water resource plan areas
temporary diversion provisions, and
the requirements for water resource plans to be
Notably, subclause 22(10)
provides that a provision of the Basin plan has no effect if it
purports to directly regulate:
land use or planning in relation to land use;
the management of natural resources (other than
water resources); or
the control of pollution.
Clause 23 requires that
long-term average sustainable diversion limits (see clause
22 above), whether for Basin water resources as a whole,
or part of them, must reflect an environmentally sustainable level
of take .
Under clause 24 temporary
diversion provisions (see clause 22 above) are
intended to provide a transitional level of diversions in cases
where the historical average diversions have been higher than the
figure fixed for long-term average sustainable diversion limits.
Such transitional measures are intended to minimise social and
economic impacts of reducing diversions down to sustainable limits.
There are various limits on setting temporary diversion provisions
in order not to compromise long-term average sustainable diversion
The Basin plan must also contain a water
quality and salinity management plan. This must contain specific
water quality and salinity targets: clause 25.
The Basin plan must also contain an
environmental watering plan. The key purpose of a plan is to
safeguard existing environmental water, planning for the recovery
of additional such water, so as to mange its use, to protect and
restore Murray-Darling Basin wetlands, and other environmental
outcomes. It must include targets to measure outcomes achieving
overall environmental outcomes: clause 28.
The Basin Plan is a legislative instrument, as
well as any amendments made to it: clause 33. The
Explanatory Memorandum comments that it is subject to disallowance
and sunsetting after a 10 year period .  However, section 44 of the
Legislative Instruments Act 2003 states that some
legislative instruments are not disallowable amongst others those
that facilitate the establishment or operation of an
intergovernmental body or scheme involving the Commonwealth and one
or more of the States . In the event that a State did refer powers
to the Commonwealth for the purposes of the Act, it is perhaps
arguable that any arrangements between two jurisdictions under the
Bill including relevant aspects of the Basin plan - could be
described as an intergovernmental scheme. It would be useful for
the Government to clarify this.
Clause 34 requires the
Commonwealth and its agencies to act consistently with the Basin
Plan, except when amending the Plan. However, regulations may
provide other circumstances in which that the Commonwealth does not
have to act consistently.
Clause 35 imposes an
obligation on certain entities not to act, or fail to act, if this
would be inconsistent with the Basin Plan. These entities are:
the Murray-Darling Basin Commission
agencies of Basin States, and
operating authorities, infrastructure operators
and holders of water access rights.
However, the requirement on Basin States
agencies only applies to acts that relate to the use or management
of Basin water resources. Again, regulations may provide for
circumstances in which the clause 35 requirement
does not apply.
The obligations contained in clause
35 are subject to a set of further conditions in
clauses 36 and 37, of which one or more must be
satisfied in order for an obligation to be imposed. The conditions
reflect the width of the Commonwealth s constitutional power upon
which the Bill relies (see clause 9 above).
Clause 40 provides that a
State law may prescribe a lower maximum quantity of water may be
taken from a water resource than the limit prescribed in the Basin
Under clause 42, in preparing
the Basin Plan, the Murray-Darling Basin Authority (the Authority)
 must consult
In preparing the water trading rules element
of the plan, the Authority must also obtain, and have regard to,
the advice of the ACCC: subclause 42(2).
Following the above consultations, the
proposed (ie draft) plan is put out for public consultation under
clause 43 for a minimum of 16 weeks. All
submissions received during this time are to be published on the
Authority website, except those that are submitted in confidence.
The Authority must consider the submissions and may alter the
proposed plan as a result. It is required to prepare a document for
the Minister that summarises the submissions and how it addressed
those submissions in the context of the proposed plan.
The proposed plan may be adopted by the
Minister or the Minister may suggest alterations or other matters.
The Authority does not have to adopt the Minister s suggestions in
revising the plan (they may also give the Minister back an entirely
unaltered plan). However, if the Minister is not satisfied with the
plan that is given to him or her on this occasion, the Minister may
direct the Authority to make such changes as the Minister sees fit.
In such cases, the Authority must alter the plan as directed and
the Minister must then adopt it.
The Basin Plan is a legislative instrument and
must be laid before parliament under the Legislative
Instruments Act 2003. In cases where the Minister has directed
the Authority to alter the Plan according to his or her
requirements, the direction, and the reason for it, must be laid
before Parliament at the same time as the Plan: subclause
The process for amending a Plan under
clauses 45-48 is similar, except that the public
consultation period is a minimum of eight weeks. Regulations may
also provide specified kinds of minor, or non-substantive
amendments without going through a public consultation process
(unless the regulations require such a consultation process):
Clauses 50-51 cover reviews
of the Basin Plan. Ordinarily this happens every ten years,
however, a review may be initiated by request of the Minister or a
unanimous request by the Basin States. However, a request cannot be
made within the first five years of a Basin Plan, or within five
years after the latest review.
Clauses 53-73 deal with water
Each water resource area identified in the
Basin Plan must have a water resource plan: clause
53. Water resource plans must be consistent with the Basin
Plan and the relevant long-term annual diversion limit for the area
(see clause 23).
Water resource plans may be either a plan
prepared by a Basin State and then accredited by the Minister under
clause 63 or one developed by the Authority and
then adopted by the Minister under clauses 68-69.
Water resource plans are legislative instruments, but those
accredited under clause 63 are not subject to
disallowance: subclause 63(7).
Clause 58 requires the
Commonwealth and its agencies to act consistently with a water
resource plan, except when amending the plan or a Basin Plan.
However, regulations may provide other circumstances in which that
the Commonwealth does not have to act consistently.
Clause 59 imposes an
obligation on certain entities not to act, or fail to act, if this
would be inconsistent with the relevant water resource plan. These
the Murray-Darling Basin Commission
agencies of Basin States, and
operating authorities, infrastructure operators
and holders of water access rights.
However, the requirement on Basin States
agencies only applies to acts that relate to the use or management
of Basin water resources. The obligations contained in
clause 59 are subject to a set of further
conditions in clauses 60 and 61 these reproduce
those contained in clauses 36 and 37 which have
previously been discussed.
In the interests of due process, if the
Authority is considering recommending to the Minister that the plan
submitted by the Basin State not be accredited, the Basin State
must be allowed to make a submission to the Authority:
subclause 63(4). The Minister must accredit the
plan if he or she is satisfied that the plan is consistent with the
relevant Basin Plan: subclause 63(6).
The Minister s decision whether to accredit a
plan is a legislative instrument and thus laid before Parliament.
If the decision does not follow the Authority s recommendation on
the matter, the Minister must table a statement setting out the
reasons for this. As mentioned earlier, subclause
63(7) states that the Minister s decision is not
disallowable. The Explanatory Memorandum comments: 
The purpose of this exemption is to avoid the
significant uncertainty in the management of Basin water resources
that would arise if an accredited water resource plan that has been
given effect under Basin State law is subsequently disallowed by
the Commonwealth Parliament.
Clauses 68-73 deal with the
preparation of a water resource plan by the Authority and adoption
by the Minister the so-called step-in power. The Explanatory
Memorandum states that these provisions are: 
intended to be used as a measure of last resort
by the Minister, for example where absolutely necessary to ensure
an accredited water resource plan that is consistent with the Basin
Plan is able to be put in place.
Under clause 68 there are a
limited number of situations in which the Minister can request the
Authority to develop a plan. Notably these include where the Basin
State does not give a proposed water plan to the Authority or if
the Minister declines accreditation of it because he or she is not
satisfied it is consistent with the Basin Plan. In addition, the
Minister must negotiate in good faith with the affected Basin State
with a view to dealing effectively with the circumstances without
the exercise of the step-in power : subclause
73(1). There is an elaborate procedure that must be
followed, including the offer of a formal mediation process, and
the step-in power can only finally be exercised if, amongst other
things, the Minister is satisfied that:
[the dispute over the resource water plan], if
not dealt with, will materially and adversely impact on the
efficient or effective implementation of the Basin Plan
the exercise of the step-in power would be an
effective means for dealing with the circumstances, and
there is no other feasible and effective
alternative way of dealing with the circumstances
The Minister s decision to adopt a plan under
clause 69 is a legislative instrument and laid
before Parliament. Unlike the accreditation method, adoption via
the step-in power is disallowable.
Clauses 74-86 deal with how
the risks of reductions in water availability are to be shared
between the holders of water access entitlements, the Commonwealth
and Basin State Governments. Such reductions may arise when the
long-term average sustainable water diversion limit for a water
resource plan area, or part of an area, is reduced from current
levels. If a risk is borne by the holder of a water access
entitlement such as a farmer they may simply have less water to use
or trade if water availability is reduced.
This issue is covered in the National Water
Initiative (NWI) and the risk-sharing approach in the Bill appears
to reflect the relevant provisions in the NWI. Paragraphs 48-50 of
the NWI identify three types of reasons for reductions, with the
formula for risk-sharing differing between the three. In summary,
the formula is:
where entitlements are reduced because of
seasonal or long-term changes in climate or periodic
natural events such as bushfires and drought, water users
(entitlement holders) bear all the risk
where entitlements are reduced because of
bona fide improvements in the knowledge of water systems
capacity to sustain particular extraction levels, water users bear
all the risk up to 2014. Beyond 2014, reductions of up to three per
cent are borne by users, but beyond that, reductions are borne by
State and Commonwealth Governments, with any reduction beyond six
per cent the responsibility of the Commonwealth
if reductions result from changes in government
policy (for example, new environmental objectives), relevant
governments bear all the risk.
The Commonwealth share of reductions (those
that arise from the last two dot points above) are reflected in
Clause 76 provides that the
Commonwealth must endeavour to manage the impact of its share of
the reductions in water allocations. It also allows the
Commonwealth to take steps to ensure that the holders of water
access entitlements do not suffer a reduction in their water
allocations, or a change in the reliability of their water
allocations, as a result of the Commonwealth s share of the
reduction in the limit . The Explanatory Memorandum comments:
The Commonwealth proposes to assist water service providers and
water users to improve their efficiency of use, allowing them to
more easily adapt to lower water allocations. The Commonwealth may
also invest in augmenting water supply works and purchase
entitlements in order to increase supply and reduce the demand on
the consumptive pool.
The National Plan for Water Security will provide
considerable financial resources to allow the Commonwealth to
manage reductions in preparation for and following the setting of
sustainable diversion limits in the first Basin Plan.
Clause 77 provides that water
access entitlement holders may be eligible for financial payments
from the Commonwealth. Essentially, if the Commonwealth is not
entirely successful under clause 76 measures in
managing and mitigating reductions for which is responsible under
clause 75, and as a consequence a water access
entitlement holder suffers a reduction in water allocation because
of this, the Commonwealth may be required to provide a payment.
Eligibility for clause 77
payments will depend in part on when the relevant access
entitlement was granted. Decisions on eligibility and any amount
payable are made by the Minister, but are subject to merits review
by the Administrative Appeals Tribunal. Regulations can be made
under clause 79 to set out the detail of claiming
payments amongst other things, these may contain the method by
which the change in value of the altered water entitlement (thus
the potential amount of the payment) is calculated.
Clauses 80-86 deal with how
the risks of changes in the reliability  of water allocations (as opposed to
reductions in water availability) are to be shared between the
holders of water access entitlements, the Commonwealth and Basin
State Governments. The Basin Plan may specify the Commonwealth
share of the change in reliability of allocations. In any case, it
is to be calculated with accordance with the NWI and any
regulations made for the purpose. The regulations must not be
inconsistent with the NWI. However, the NWI is not as prescriptive
in terms of risk-sharing as it is on reductions of water
The remainder of the relevant provisions
largely mirror those relating to risk-sharing in clauses
74-79. In particular, the Commonwealth may be liable for
compensatory payments as discussed in relation to clause
This requires the National Water Commission to
audit the effectiveness of the implementation of the Basin Plan and
the water resource plans : subclause 87(1). The
initial audit must be completed within five years of the Act coming
into force: clause 88. Audit reports are to be
tabled in Parliament within 15 sitting days of being given to the
Minister. Copies must also be given to the Basin States at the same
time as the Minister.
Regulations may be made setting out the detail
of what may be taken into account in carrying out the audit:
This Part deals with water charge rules and
water market rules.
Water charge rules
Clause 91 sets out the kinds
of charges which are referred to broadly in the WA as regulated
water charges . They include:
fees or charges payable to an irrigation
bulk water charges excluding urban water supply
water planning and water management charges,
fees or charges arising from access to water
The charges listed above will only be
regulated water charges if they relate to Basin water resources, or
water service infrastructure which carries Basin water resources or
water access rights, irrigation rights or water delivery rights in
relation to Basin water resources.
Clause 92 sets out the
process the Minister must follow to make water charge rules. In
particular, the water charge rules establish the role of the ACCC
in relation to regulated water charges.
The water charge rules deal with the following
the rules for determining the amount of
regulated water charges
the terms and conditions that may be imposed on
regulated water charges generally
the determination or approval by the ACCC of
how the ACCC goes about making those
how the ACCC can accredit other agencies of the
States to act on its behalf in relation to determinations and
that regulated water charges of some kinds will
be prohibited, and
the requirement that the person who determines
the charges must publish the details of the charges and the way the
amount was determined.
Clause 93 provides that the
Minister must ask the ACCC for advice about the water charge rules
that the Minister proposes to make and the Minister must take this
advice into account. Regulations will provide the detailed process,
but they must provide for consultation with Basin States and
irrigation infrastructure operators. If the Minister makes a
decision that in some respects does not reflect the ACCC advice,
the Minister must table reasons in Parliament setting out why the
ACCC s advice was not followed. The Minister s decision (that is,
in making the rules and charges) are legislative instruments and
There are some Constitution-related conditions
in clause 94, one of more of which must be
satisfied for water charges to apply - for example that the entity
imposing the charge is corporation.
The ACCC is required to monitor regulated
water charges and compliance with water charge rules:
clause 95 and clause 100.
Water market rules
Clause 97 empowers the
Minister to make water market rules . The rules must contribute to
the objectives and principles set out in Schedule 3 of the WA,
which are drawn from the National Water Initiative. 
The rules relate to the actions of irrigation
infrastructure operators  and are intended to free up the trade of water access
rights within the Murray-Darling Basin by ensuring that policies or
administrative requirements of infrastructure operators do not
represent a barrier to trade. Subclause 97(3)
provides that water market rules may deal with the restrictions
that an irrigations infrastructure operator may impose in relation
to transformation arrangements . These are, essentially, the
arrangements whereby a water access entitlement of the operator may
be permanently transformed into a water access entitlement of a
person other than the operator.
Clause 98 provides that the
Minister must ask the ACCC for advice about the water market rules
the Minister proposes to make, and the Minister must have regard to
that advice in making the water market rules.
Part 5 Murray-Darling Basin Water
Rights Information Service
Part 5 relates to the
establishment of the Murray-Darling Basin Water Rights Information
Service. Clause 101 defines the following as
registrable water rights :
water access rights in relation to Basin water
water delivery rights in relation to Basin
irrigation rights in relation to Basin water
rights that relate to access to, or use of,
Basin water resources which are described in regulations.
Clause 103 allows the Authority
to provide a single information service (called the Murray-Darling
Basin Water Rights Information Service) based on the contents of
the registers of registrable water rights which are kept by the
State based agencies and infrastructure authorities which are
listed in clause 102. The Explanatory Memorandum
states that the intention of the Service is to support the
distribution of information about water access rights and to
facilitate trading in these rights. 
The practical details about the form in which the
Service is to be provided, the information required to be provided
to the Service and the manner in which information will be accessed
from the Service will be the subject of regulations:
Clause 105 provides that the
Commonwealth Environmental Water Holder (CEWH) is to manage the
Commonwealth environmental water holdings and administer the
Environmental Water Holdings Special Account. According to the
second reading speech, the CEWH will be required to ensure that
water is delivered to achieve environmental watering objectives.
This would include environmental watering objectives for icon sites
currently being pursued under the Living Murray Initiative, in
particular provision of additional water to the Coorong and Murray
Clause 108 defines
Commonwealth environmental water holdings as being the rights that
the Commonwealth holds that are water access rights, water delivery
rights, irrigation rights and other similar rights relating to
water excluding those rights that the Commonwealth holds in the
performance of functions that are not related to the Bill, for
example, water rights held by the Department of Defence. 
Subclause 105(2) sets out
what the CEWH can do in managing Commonwealth environmental water
holdings. They include conducting trade in permanent water
entitlements or temporary water allocations, entering into
contracts for buying and selling water rights and the use of those
rights, and maintaining records of the water rights owned by the
According to subclause 105(4)
the CEWH must manage Commonwealth environmental water holdings in
accordance with applicable planning documents including the
environmental watering plan and environmental watering schedules
which are established under Part 2 of the WA.
Where the Commonwealth holds water outside the
Murray-Darling Basin, the applicable planning document will be any
plan that relates to environmental water in that area and which has
been specified in regulations. Where there is no plan, the CEWH
must have regard to both the operating rules which the Minister has
set under section 109, and any relevant environmental watering
schedules to which it is a party.
Clause 106 limits the CEWH s
right to sell water during a water accounting period.  It may only sell water
which is not required by a watering plan or in accordance with the
environmental watering schedule. The reason for imposing the
limitation is to ensure that the CEWH operates to meet
environmental objectives rather than as a profit making enterprise.
 The limitation
will not apply in circumstances where proceeds from any sale can be
used by the CEWH to acquire other water or water holdings which
will better protect or restore environmental assets.
The Minister and Secretary are not permitted
to give direction to the CEWH in the exercise of the functions
which are set out in subclauses 105(2)(a) (c). This limitation, set
out in clause 107, is intended to safeguard the
independence of the CEWH in relation to key trading decisions.
clause 109 allows the Minister to make operating
rules by legislative instrument, about those same matters.
According to the Explanatory Memorandum, the operating rules will
establish a general framework within which the CEWH operates,
rather than providing specific direction on individual entitlements
or contracts. 
Clause 111 establishes the
Environmental Water Holdings Special Account which is to be used
for expenses incurred by the CEWH in undertaking its functions:
Clause 120 provides that the
Bureau of Meteorology will have additional functions to those
already specified in the Meteorology Act 1955. They relate
to matters concerned with the collecting, holding, managing and
dissemination of information on water resources, its usage and
availability, water accounting and the forecast of future water
availability. The Bureau of Meteorology will also undertake
investigations to enhance understanding of Australia s water
Clause 125 defines water
information as any raw data, or any value added information product
that relates to:
the availability, distribution, quantity, use,
trading or cost of water, or
water access rights, water delivery rights or
Under clause 123 the Director of
Meteorology is allowed to publish water information in a form that
is readily accessible by the public, unless it would not be in the
public interest to do so, the information is already in the public
domain, or to do so would expressly identify a person s water
Clause 126 provides for
regulations which will specify a person, or a class of persons who
must provide the Bureau of Meteorology with water information in a
time and manner that will also be contained in the regulations.
Under clause 127 it will be a civil penalty if a
person or class of persons fails to provide water information to
the Bureau of Meteorology if requested in writing to do so.
The Director of Meteorology may issue National
Water Information Standards in accordance with clause
130. The Standards will be a legislative instrument and
thus laid before parliament. Subclause 130(2) sets
out those matters which may be contained in the National Water
Information Standards such as collecting water information,
measuring and monitoring water, transmitting and accessing water
information and reporting water information. Clause
132 requires the Director of Meteorology to consult with
the States, and any other person who is considered appropriate, in
preparing National Water Information Standards.
Clause 137 identifies the
appropriate enforcement authority in the event of the following
for matters arising from the WA or
regulations about the management of the basin plan or water
resource plans, 
for matters arising out of the Authority s
information gathering powers 
the ACCC, for matters relating to the water
charge rules or the water market rules and
the Minister, for matters relating to the
provision of information to the Bureau of Meteorology in accordance
with National Water Information Standards.
Where a contravention of any provision of the WA
or regulations, the water charge rules or water market rules has
occurred, or is about to occur, the appropriate enforcement
authority has a number of options about what action can be
One option is for the appropriate enforcement
authority to seek an injunction or declaration from the Court.
Clause 138 defines Court as being the Federal
Court of Australia, the Federal Magistrates Court of Australia or a
court of a State or Territory. Clause 139
specifically excludes the Federal Magistrates Court from any
jurisdiction in proceedings against a State.
Clause 140 provides that the
appropriate enforcement authority can apply to Court for a
prohibitory injunction to restrain a person from engaging in
conduct that would contravene the WA, or a mandatory injunction to
require a person to take action to prevent a contravention of the
WA. Where it is considered urgent, the appropriate enforcement
authority can seek an interim injunction prior to a formal decision
on the matter under clause 141.
A second option is provided by clause
144. The appropriate enforcement agency can apply to a
Court for a declaration that there has been a contravention of the
WA. For example, a declaration may be sought where there is a
disagreement between a State and the Commonwealth about whether
certain conduct was in contravention of the Basin Plan. 
A third option, set out in clause
146, relates to a contravention of those subsections of
the WA, the water charge rules and the water market rules where the
words civil penalty are set out at the foot of the provision. In
those cases, clause 147 gives the appropriate
enforcement agency a period of 6 years from the date of the
contravention to apply to a Court for an order that the person pay
the Commonwealth a pecuniary penalty. It also sets out the maximum
penalty payable and the matters to be taken into account by the
Court in determining the amount of the penalty.
Clause 148 provides that
contravention of a civil penalty clause is not, of itself, a
A fourth option is to initiate criminal
proceedings against the person. Clause 153
provides that criminal proceedings may be started against a person
for conduct that is substantially the same as conduct constituting
a civil penalty provision. This may occur even if a Court has
ordered the person to pay a pecuniary penalty. However
clause 152 provides that where a person has been
convicted of an offence, a Court cannot also impose a pecuniary
penalty for a contravention arising out of the same conduct.
Clause 156 provides that an
alternative to Court action lies where the civil penalty provision
which has been contravened relates to:
water charge rules or water market rules
the requirement to provide water information
and comply with National Water Information Standards, or
any regulations which have been made for the
purpose of this paragraph.
In that case, an infringement notice may
be given. However, clause 161 provides that there
is no requirement that an infringement notice must be given in
respect of the contravention of a civil penalty provision. It is an
option that may be taken in matters were the circumstances are
considered to be of a relatively minor nature and determining
whether the civil penalty provision has been contravened will turn
on fairly straightforward and objective criteria. 
It should be noted that subparagraph
156(1)(a)(i) appears to contain an error. Reference to
Part 3 should be a reference to Part 4.
Clause 157 sets out the matters
which must be specified in an infringement notice, including the
details of the contravention, the amount of the penalty and the
time allowed in which to pay the penalty. Where a person receives
an infringement notice and pays the penalty, clause
160 provides that the appropriate enforcement agency may
not bring Court proceedings against the person.
Clause 163 provides a second
alternative to Court action. Where the appropriate enforcement
agency considers that a person has contravened a provision of the
WA, regulations, the water charge rules or water market rules, it
can accept written undertakings from the person to do, or refrain
from doing, those actions which have caused the contravention. For
example, an undertaking might be to provide information that ought
to have been provided at an earlier time, within a further
specified period and put in place systems that will ensure
compliance with the relevant obligation to provide information in
the future. 
However, where a person has given an undertaking
and the appropriate enforcement agency considers that the person
has breached the undertaking, clause 164 empowers
the appropriate enforcement agency to apply to a Court for an Order
in any or all of the following terms:
the person must comply with their
the person must pay an amount to the
Commonwealth which is equal to the benefit the person gained by
failing to adhere to their undertaking
the person must pay compensation to any other
person who has suffered loss or damage as a result of the breach of
the undertaking, or
any other matter that the Court considers
Clause 165 provides that the
Authority may issue an enforcement notice where a person has
contravened, or is likely to contravene a provision of the
WA or regulations relating to the management of Basin water
This provision is very wide. It allows for
enforcement notices to be issued where a person is taking, or
proposing to take, action that the Authority considers is:
inconsistent with the Basin Plan or a water
would prejudice or have an adverse effect on
the effectiveness or implementation of the Basin Plan or a water
resource plan, or
poses a threat to the health or continued
availability of Basin water resources.
An enforcement notice stops or prevents conduct
which, while not actually a contravention of the WA or the
regulations, is conduct that runs counter to the objectives and
outcomes sought to be achieved by the Basin Plan or the water
resource plans. 
Subclause 165(2) provides that
the Authority must specify the action that the person is to take or
refrain from taking. Subclause 165(3) provides
that the Authority may direct the person not to exercise
some or all of their:
water access rights
irrigation rights, or
water delivery rights.
Under subclause 165(4), the fact
that the conduct required by the enforcement notice is also an
offence under a State or Territory law does not prevent the
Authority from giving the notice.
Where a person who has been served with an
enforcement notice fails to comply with the terms of the notice,
there is a breach of a civil penalty provision. Under
subclause 166(1) the penalty is 600 penalty units.
 A separate
contravention occurs on each and every day until the enforcement
notice is complied with: subclause 166(2).
Where a civil penalty provision is contravened by
a body corporate, clause 168 provides that an
executive officer of the body corporate will be liable for the
contravention if they:
knew that the contravention would occur
or were reckless or negligent about whether the
contravention would occur, and
were in a position to influence the conduct of
the body corporate, and
failed to take all reasonable steps to prevent
In determining whether an executive officer took
reasonable steps to prevent a contravention, a Court must take into
account all the matters listed in clause 169.
Clause 170 describes the
circumstances in which the conduct of a director, employees or
agents of a body corporate can be taken to be the actions of the
body corporate for the purposes of the WA.
This contains uncontroversial administrative
provisions in relation to the Murray-Darling Basin Authority
including but not limited to:
clause 172 the Authority s
clause 173 the Authority s
clause 178 - the appointment
of members to the Authority
clauses 181 190 the terms and
conditions of Authority members
clauses 191 215 the operation
of the Authority and its staff.
Clause 175 empowers the
Minister to give directions to the Authority about the performance
of its functions with the exception of the following:
Clause 216 provides that this
part of the WA only has effect so far as the Constitution permits.
The part provides authorised officers with the power to enter onto
land for compliance and non compliance purposes.
Subclause 217(2) sets out the
conditions for appointment as an authorised officer. According to
clause 218 an authorised officer must carry an
identity card, as issued by the Authority, at all times when
carrying out their functions. It is an offence if a person who
ceases work as an authorised officer, fails to immediately return
their identity card to the Authority.
An authorised officer is empowered to enter
onto land to monitor compliance or for other purposes:
clause 219. This Part sets out the rules which
must be followed by an authorised officer in either of these
An authorised officer cannot enter onto land
for reasons other than monitoring compliance,  unless, according to
clause 220 the authorised officer has:
given reasonable written notice to the
occupiers about the intention to enter the premises (unless the
entry is in an emergency, for example, where there are structural
problems with a dam or flooding 
where the premises is a residential premises,
the occupier has voluntarily consented to the entry
shown the occupier his identification if
provided the occupier with a written statement
about their rights and obligations in relation to the entry.
Subclause 220(3) provides that
an authorised officer cannot be said to have obtained the consent
of an occupier unless the occupier has been informed of the right
to refuse consent.
Subclause 220(4) requires an
authorised officer to leave the property if the consent is
Subclause 221(2) lists those
things that an authorised officer may do while on premises, for
example, affixing or placing monitoring equipment, conducting
tests, or collecting samples. This is a broad list and the clause
makes it clear that the authorised officer can do any of the
activities to the extent that is reasonably necessary for the
performance of the Authority s functions. In addition,
clause 222 requires an authorised officer to
behave in a reasonable manner whilst on the premises and to
minimise their impact on those premises. 
An authorised officer may enter onto land to
either monitor compliance (clause 223) or to
search for evidential material (clause 224).
Under clause 223 an
authorised officer may enter onto land to monitor compliance only
if the occupier of the premises has consented to the entry or the
entry is made under a monitoring warrant (clause
225). This is consistent with the
Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers.  Clause 225 sets out the steps to be
taken by a magistrate before the monitoring warrant is issued,
including that the magistrate is satisfied that it is reasonably
necessary for one or more authorised officers to have access to the
Under clause 224 an
authorised officer may enter onto land to search for evidential
material only if the occupier of the premises has consented to the
entry or the entry is made under a contravention warrant.
Clause 226 sets out the steps to be taken by a
magistrate before a contravention-related warrant is issued
including that the magistrate is satisfied that there is, or will
be within the next 72 hours evidential material in or on the
premises. The magistrate must specify the time of day during which
entry is authorised and specify a day on which the warrant ceases
to have effect. A contravention-related warrant can be issued by
telephone or fax only for the reasons and in the manner specified
in clause 227.
In all cases where an authorised officer
enters premises clause 228 requires that the
authorised officer does the following:
shows their identity card if required by the
provides the occupiers with a written statement
of their rights and obligations in relation to the entry on to the
Under clause 229 an
authorised officer will not have the voluntary consent of the
occupier to enter, unless the authorised officer has first informed
the person that they have the right to refuse consent.
Where an authorised officer is entering
premises under warrant, clause 230 provides that
where practicable and safe the authorised officer must announce
that they are authorised to enter the premises and where possible
give the occupier a copy of the warrant.
Where an authorised officer enters premises
under warrant and believes on reasonable grounds that they can
operate equipment on the premises without damaging it,
clause 231 empowers the authorised officer to
operate the equipment to copy information or material to a storage
device and then to take the storage device from the premises.
However where an authorised officer has
entered premises under a warrant and information or evidential
material may be accessible by operating equipment that the
authorised officer does not have the expertise to operate, then
clause 232 empowers the authorised office to
secure the equipment for up to 24 hours to prevent information from
being destroyed or altered. Where the authorised officer believes
on reasonable grounds that the expert assistance will not be
available within 24 hours, they can apply to a magistrate for an
extension of that period.
Under clause 237 an occupier
may accompany an authorised officer at all times whilst the
authorised officer is on their premises, but cannot impede the
Clause 238 provides that the
Authority has the power to request information relating to the
preparation and implementation of the Basin Plan, the investigation
of possible contraventions of Part 2 and regulations about Part 2
of the WA and other matters relevant to the Authority s functions.
Subclause 238(2) sets out the requirements in
relation to any such request. It is a civil penalty not to provide
information requested or to provide false and misleading
information in response to a request. Subclause
238(5) provides that the civil penalties do not apply
where a person has a reasonable excuse for not supplying the
On 25 January 2007, the Prime Minister, the
Hon John Howard MP announced the National Plan for Water Security.
 Schedule 4 to
the WA lists some 27 water resource plans which were in effect on
the day of the announcement. Under clause 241
these transitional water resource plans will cease to have effect
only on the date which is specified in the Schedule, that is, the
date that they were due to expire or be subject to review under
State law. Clause 243 deems that such plans have
been accredited by the Minister under Subdivision D of Division 2
of Part 2 of the WA so that there will be no requirement upon a
Basin State to prepare another plan for accreditation in relation
to the water resource area covered by the transitional plan.
Clause 242 relates to interim
water resource plans. These plans came into effect on or after 25
January 2007. These interim plans will continue to be recognised
until the first Basin plan comes into effect. Subclause
242(3) provides that interim water resource plans will
cease at the end on the later of, 31 December 2014 or, the time
occurring 5 years after the plan is made. Clause
244 deems that such plans have been accredited by the
Minister under Subdivision D of Division 2 of Part 2 of the WA.
This means that, until the interim plan expires, there will be no
requirement upon a Basin State to prepare another plan for
accreditation in relation to the water resource area covered by the
While there is a transitional water resource
plan, or an interim water resource plan in operation for a water
resource area, they will prevail over the Basin Plan where there is
any inconsistency: clause 245.
Clause 253 provides that
before the end of 2014, a review must be conducted
of the operation of the WA and the extent to which the objects of
the WA have been achieved.
Clause 255 provides that
nothing in the WA or regulations authorises the Commonwealth, the
Authority, the CEWH or any other agency to compulsorily acquire a
water access right or an interest in a water access right. However,
should an acquisition of property from a person occur, the
Commonwealth is liable to pay a reasonable amount of compensation
to the person: clause 254. Note the use of the
phrase reasonable amount as opposed to just terms as specified in
the Constitution was raised in the context of the Northern
Territory National Emergency Response Bill 2007. For
more information in relation to this point see the relevant
Parts 2 and 3 of Schedule 2
outline the objectives and principles for water charging. They are
based on those set out in the National Water Initiative. 
Schedule 3 contains basin
water market trading objectives and trading principles.
At the same time as this Bills Digest was
being finalised, the
report of the Senate Standing Committee on Environment,
Communications, Information Technology and the Arts into the Bill
was released. While recommending that the Bill be passed, the
majority report concluded: 
As mentioned earlier in this Digest, the Bill
has been in development for several months through various
intergovernmental working groups, and earlier versions have also
apparently been circulated to some peak stakeholder rural,
commercial and environmental groups. However, the Bill was only
available for public scrunity, including to the authors of this
Digest, from 8 August 2007. Particularly in light of the Senate
Committee s conclusion above, the Bill s complexity and importance
warrant measured consideration by the Parliament.
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Excerpt from the Ramsar Convention
on Wetlands of International Importance especially as Waterfowl
1. The Contracting Parties shall formulate and implement their
planning so as to promote the conservation of the wetlands included
in the List, and as far as possible the wise use of wetlands in
2. Each Contracting Party shall arrange to be informed at the
earliest possible time if the ecological character of any wetland
in its territory and included in the List has changed, is changing
or is likely to change as the result of technological developments,
pollution or other human interference. Information on such changes
shall be passed without delay to the organization or government
responsible for the continuing bureau duties specified in Article
Excerpt from the Convention on
Each Contracting Party shall, as far as possible and as
(a) Establish a system of protected areas or areas where special
measures need to be taken to conserve biological diversity;
(b) Develop, where necessary, guidelines for the selection,
establishment and management of protected areas or areas where
special measures need to be taken to conserve biological
(c) Regulate or manage biological resources important for the
conservation of biological diversity whether within or outside
protected areas, with a view to ensuring their conservation and
(d) Promote the protection of ecosystems, natural habitats and
the maintenance of viable populations of species in natural
(e) Promote environmentally sound and sustainable development in
areas adjacent to protected areas with a view to furthering
protection of these areas;
(f) Rehabilitate and restore degraded ecosystems and promote the
recovery of threatened species, inter alia, through the development
and implementation of plans or other management strategies;
(g) Establish or maintain means to regulate, manage or control
the risks associated with the use and release of living modified
organisms resulting from biotechnology which are likely to have
adverse environmental impacts that could affect the conservation
and sustainable use of biological diversity, taking also into
account the risks to human health;
(h) Prevent the introduction of, control or eradicate those
alien species which threaten ecosystems, habitats or species;
(i) Endeavour to provide the conditions needed for compatibility
between present uses and the conservation of biological diversity
and the sustainable use of its components;
(j) Subject to its national legislation, respect, preserve and
maintain knowledge, innovations and practices of indigenous and
local communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity and
promote their wider application with the approval and involvement
of the holders of such knowledge, innovations and practices and
encourage the equitable sharing of the benefits arising from the
utilization of such knowledge, innovations and practices;
(k) Develop or maintain necessary legislation and/or other
regulatory provisions for the protection of threatened species and
(l) Where a significant adverse effect on biological diversity
has been determined pursuant to Article 7, regulate or manage the
relevant processes and categories of activities; and
(m) Cooperate in providing financial and other support for
in-situ conservation outlined in subparagraphs (a) to (l) above,
particularly to developing countries.
. Austin, P,
Grattan, M, Ker, P 2007 Bracks isolated as premiers sign up for
water deal The Age 24 February 2007.
. Hughes, D
2007 Victoria still prepared to go it alone Australian
Financial Review 17 May 2007.
. Grigg, A Dry
argument on secret plans Australian Financial Review 18
. Hughes, D
Bracks pulls plug on Murray-Darling Australian Financial
Review 24 May 2007.
. Whinnett, E.
Murray Darling breakthrough hope Herald Sun 5 June
. Morris, S.
Water scheme reborn through compromise Australian Financial
Review 5 June 2007.
gives Victoria a deadline to reach agreement on Murray-Darling
water plan PM 4 July
. Ruffles, M.
Vic holds out on $10b water plan Canberra Times 13 July
. This is a form of water access right.
. Morris, S.
Funding to flow even if Pact absent Australian Financial
Review 10 August 2007.
v. Commonwealth  134 CLR 338 at 197 per Mason J.
. Explanatory Memorandum, Water Bill, 2007, p.
Murray-Darling Basin Authority is established in Part 9 of the
Committees are established in Part 9 of the Bill.
. The concept
of reliability does not appear to be defined in the Bill. However,
the Schedule B(i) of the NWI defines it as the frequency with which
water allocated under a water access entitlement is able to be
supplied in full .
. Explanatory Memorandum, p. 27.
. See: clause.7 of the Bill for the relevant
Explanatory Memorandum, p. 28.
. M Turnbull,
MP (Wentworth), Minister for Environment and Water Resources,
Second reading speech: Water Bill 2007 ,
House of Representatives, Debates, 8 August 2007, p. 3.
Explanatory Memorandum, p. 29.
. Defined in section 4 and in the table in subsection
22(1) of the WA.
. Explanatory Memorandum, p. 29.
. Part 2 of the Bill.
. Division 3 of Part 10 of the Bill.
. Explanatory Memorandum, p. 36.
. As section
4AA of the Crimes Act provides that one penalty unit is $110.00,
the amount of the penalty is $66,000.
. About the
Commonwealth s share of the change in the Basin Plan.
Management of Basin water resources.
. This will
generally relate to gathering information that the Authority needs
to prepare the Basin Plan or amendments to the Basin Plan.
Explanatory Memorandum, p. 51.
. Criminal Law
Policy Section, Criminal Justice Division, Attorney-General s
Department, Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers , February 2004, p. 66.
. J. Howard MP, Speech to the National Press
Club, 25 January 2007.
. Explanatory Memorandum, p. 58.
Angus Martyn and Paula Pyburne
Law and Bills Digest Section
Science, Technology, Environment and Resources Section
14 August 2007
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